February 2007

The State’s Role in Defining the Constitutional Right to Counsel in Gideon

by Rob McKenna

When Washington Attorney General John J. O’Connell joined 21 other states and commonwealths in signing an amicus brief submitted in a criminal case before the United States Supreme Court, our state took a position that we take for granted today: that every indigent person accused of a felony in a state court is guaranteed the right to counsel.1 It was 1962, and the case was Gideon v. Wainright, 372 U.S. 335 (1963). At the time, 35 states required that counsel be appointed to indigents accused of non-capital felonies in state court.2 The nature and scope of the right to counsel continues to be further defined by our courts and legislative bodies even to this day.

Prior to the Gideon decision, Betts v. Brady, 316 U.S. 455 (1942), dictated that an indigent person accused of a non-capital crime did not have a due process right to counsel unless, under the facts of the particular case, refusal to appoint counsel would constitute “a denial of fundamental fairness, shocking to the universal sense of justice.”3 However, the United States Supreme Court had not allowed a denial of counsel to stand under that test since 1950.4 In Washington, constitutional and statutory mandates already dictated that a person subject to criminal prosecution had a right to counsel.5

Although the decision in Gideon was described at the time as “not unexpected,”6 13 states that required that counsel be appointed to indigents accused of felonies in their own states did not join the amicus brief. The states’ brief that Washington joined argued that historical developments in the interpretation of the due process clause compel the finding of a constitutional right to counsel in state felony trials, if there is a risk of loss of liberty, whether or not a capital crime is involved. The states likened the denial of counsel on the basis of indigence to discrimination, citing a prior United States Supreme Court decision which stated, “[i]n criminal trials a State can no more discriminate on account of poverty than on account of religion, race, or color.”7 Plainly stated, “[t]here can be no equal justice where the kind of trial a man [or woman] gets depends on the amount of money he [or she] has.”8 To quote directly from the states’ 25-page amicus brief, “[s]o firm is the attachment of the undersigned states to that principle that we could confidently rest our case on that assertion alone.”9

In the Gideon case, there was, also not surprisingly, an amicus brief filed in support of Florida by the state of Alabama, which was also signed by North Carolina. That brief argued that states could certainly decide to provide appointed counsel in non-capital criminal cases, but that decision is not constitutionally required.

[O]n that distant day when finally the millennium is reached, no layman shall be compelled to defend himself without legal assistance in a state criminal prosecution. No indigent individual shall be compelled to suffer illness or injury without the attention of a physician or benefit of necessary medicine or hospital care. No poor person shall be compelled to suffer the pangs of hunger or the discomforts occasioned by a lack of adequate clothing, suitable housing or other creature comforts. Humanitarian principles require that such assistance be given to the needy even today, but it cannot be argued logically that, under the due process or equal protection clauses of the Fourteenth Amendment, the states must furnish them. If and when, in the considered judgment of the people of the individual states, such gratuitous services or aid are warranted morally or are feasible financially, they will be provided. Though man’s social evolution is slow, history proves that he does advance in all fields. To be lasting, however, his progress must result from his own volition rather than come from judicial fiat.10

The amicus brief of Alabama also makes an interesting observation that a recent gathering of the state’s prosecuting attorneys revealed “widespread agreement among them that an accused, tried without aid of counsel, stands a better chance of obtaining from a jury either an outright acquittal or less severe punishment than one represented by an attorney.”11 Nonetheless, Mr. Gideon was acquitted on remand after a trial in which he was represented by counsel.12

The Gideon decision reflected consideration of the principles contained in the amicus brief that Attorney General O’Connell signed on behalf of the State of Washington. In establishing the principle that counsel is required for Mr. Gideon and others like him, the Court stated, “reason and reflection require us to recognize that in our adversary system of criminal justice, any person hauled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him.”13 Washington and 21 other states acknowledged that the time had come to recognize this important right. The Court concluded its opinion, in which it overruled Betts:

Florida, supported by two other States, has asked that Betts v. Brady be left intact. Twenty-two States, as friends of the Court, argue that Betts was “an anachronism when handed down” and that it should now be overruled. We agree.14

The important considerations supporting the constitutional right to appointment of counsel have not stood still since the Gideon decision. In the intervening years, our courts and Legislature have recognized that the right to counsel means much more than simply providing a lawyer to indigent individuals accused of felonies. Examples include the statutory right to counsel in certain civil proceedings, such as involuntary mental health commitment hearings,15 sexually violent predator proceedings,16 and parental termination trials;17 the appointment of at least two attorneys with demonstrated proficiency in capital cases;18 and the right to counsel in certain misdemeanors as well as felonies.19 The law in this area continues to be shaped by lawmakers and reviewed by our courts. 

Rob McKenna is Washington’s 17th attorney general. As the state’s chief legal officer, he directs 500 attorneys and nearly 700 professional staff providing legal services to state agencies, boards, and commissions.

NOTES
 
1. The brief was drafted by the states of Massachusetts and Minnesota, and joined by Alaska, Colorado, Connecticut, Georgia, Hawaii, Idaho, Illinois, Iowa, Kentucky, Maine, Michigan, Missouri, Nevada, Ohio, North Dakota, Oregon, Rhode Island, South Dakota, Washington, and West Virginia.
 2.  Brief for the State Government Amici Curiae, Gideon v. Cochran, 371 U.S. 857 (1962)
(No. 155), 1962 WL 115122, at *2.  The assistance of counsel for those subject to federal prosecutions is required under the Sixth Amendment.
 3. Betts, 316 U.S. at 462.
 4.  Gideon, 372 U.S. at 351 (Harlan, J., concurring).
 5.  The Washington Supreme Court explained the rights of the accused in the following manner:
  The right of an accused to appear and defend by counsel is expressly guaranteed by Art. I § 22 (amendment 10) of the state constitution.  In furtherance of this constitutional guarantee, RCW 10.01.110 and 10.40.030 imposes upon the court three duties:  (1) to inform the defendant that it is his right to have counsel before being arraigned; (2) to ascertain whether because of the defendant’s poverty he is unable to employ counsel, in which event, the court must inform the defendant that the court shall appoint counsel for the defendant at public expense if he so desires; (3) to ask whether the defendant desires the aid of counsel.
  In re Wilken v. Squier, 50 Wash. 2d 58, 61, 309 P.2d 746 (1957).
 6.  Harvard Law Rev. Ass’n, “Rights of Indigent at Trial,” 77 Harv. L. Rev. 103 (Nov. 1963).
 7.  Griffin v. Illinois, 351 U.S. 12, 17 (1956).
 8.  Id. at 19.
 9.  Brief for the State Government Amici Curiae, Gideon v. Cochran, 371 U.S. 857 (1962)
(No. 155), 1962 WL 115122 at *12.
 10.  Amicus Curiae Brief for the State of Alabama, Gideon v. Cochran, 1962 WL 115123, at *5-6.
 11.  Id. at *7.
 12.  Harvard Law Rev. Ass’n, “Rights of Indigent at Trial,” 77 Harv. L. Rev. 103 (Nov. 1963).
 13.  Gideon, 372 U.S. at 344.
 14.  Gideon, 372 U.S. at 345.
 15.  RCW 71.05.360(5)(b).
 16.  RCW 71.09.050.
 17.  RCW 13.34.090.
 18.  SPRC 2.
 19.  CrRLJ 3.1(a).