crime,” and defendants who can afford it hire “the best lawyers they can get.” Thus, for both the prosecution and the defense, “lawyers in criminal courts are necessities, not luxuries.” Tellingly, when Gideon was tried a second time, his appointed defense lawyer caught the prosecution’s key witness (Cook) in a lie about his criminal record, and the jury quickly acquitted Gideon.
Gideon was rightly hailed as a triumph for justice, a heroic decision vindicating the little guy and ensuring justice for the poor. Anthony Lewis immortalized the case in his stories for the New York Times and his prize-winning book Gideon’s Trumpet, and Henry Fonda later played Clarence Gideon in a movie made for prime-time TV. But one OF the most striking facts about Gideon is that the Court largely followed developments in the states, reining in a few Southern outliers, rather than leading them. By the 1960s, all but five states routinely appointed counsel for poor felony defendants. Almost two dozen states filed an amicus (friend-of-the-Court) brief supporting Gideon (!), led by Minnesota Attorney General and future Vice President Walter Mondale, while only two other states supported Florida. The very end of Justice Black’s opinion cited the former brief, implicitly confirming that Gideon’s rule had proven workable in the states. Gideon, in short, was a right on which almost everyone could agree.
Stretching Gideon to Minor Cases
Gideon left open a plethora of questions, including how serious a crime must be to qualify for appointed counsel, how well an appointed counsel must perform, and what compensation and resources he must have. On the first of these questions, the Court soon extended Gideon beyond felony cases to misdemeanors, in Argersinger v. Hamlin. The Florida Supreme Court held that the constitutional right to appointed counsel extends only as far as the right to a jury trial, that is, to crimes punishable by more than six months’ imprisonment. But the U.S. Supreme Court reversed Jon Argersinger’s concealed-weapon conviction and ninety-day jail sentence, extending the right to counsel to all cases in which a court imposes any actual imprisonment. The Court argued that even low-stakes cases may be too complex for laymen to handle themselves, and even brief imprisonment can harm defendants’ liberty, careers, and reputations. The Court also worried about “assembly line justice,” and hoped that appointing lawyers for misdemeanants would give defendants a chance to examine and fight all criminal charges. The majority dismissed concerns about cost, asserting that only a couple of thousand lawyers, about half of one percent of all lawyers, would be needed to handle all non-traffic misdemeanors in the United States. In his separate concurring opinion, however, Justice Powell worried that the right would cost and demand much more, exacerbating court congestion and delay.12
Argersinger is dubious for several reasons. First, Argersinger is far more radical than Gideon. Gideon merely codified a right that was already working in a majority of states. But Argersinger swept far more broadly, creating a new right that was broader than most states’ practices at the time. Given the novelty and breadth of the right, it is unsurprising that the majority’s predictions proved to be far too sanguine. Second, the Court relied upon the American Bar Association’s recommendations, but of course the ABA’S members are the ones who benefit from the Court’s full-employment mandate. Third, the right to a jury trial is expressly guaranteed twice in the Constitution, and the Founding Fathers made it central to the Bill of Rights. Yet the Court treated its novel right to counsel as more fundamental than the venerable right to a jury, stretching it much further.
The Court, in Alabama v. Shelton, extended Argersinger to suspended sentences that later result in imprisonment. But in Scott v. Illinois it drew the line at cases imposing imprisonment, not just fines, heeding earlier warnings about cost. Broadening the right to fine-only misdemeanors, it worried, “would create confusion and impose unpredictable, but necessarily substantial, costs on 50 quite diverse States.”13
The bottom line? The very limited right first announced in Powell had grown broad indeed: All criminal defendants facing even a day of jail time, plus defendants with suspended sentences that later result in jail time, plus juvenile defendants facing imprisonment, get a free government lawyer if they cannot afford to hire one. Misdemeanors that result only in fines do not require a lawyer.
Minimal Performance Standards
Collectively, Gideon, Argersinger, and Shelton extended the right well beyond capital cases or felonies to millions of misdemeanors, making its reach quite broad. But the Court refused to make it deep. It has imposed only the most minimal standards for how well appointed counsel must perform and what pay, support, and resources they must have in order to assist their clients effectively.
Even though the Scottsboro Boys had lawyers, the circumstances prevented their lawyers from giving “effective aid” in preparing and trying the cases, making their trials fundamentally unfair. More than half a century after Powell and more than two decades after Gideon, the Supreme Court finally defined “effective aid” as requiring only minimal competence in Strickland v. Washington. In so doing, it revealed how little the right ultimately guarantees in practice. The point of the right to counsel is to ensure a fair trial with a just result by testing the prosecution’s case. Our adversarial system relies on defense lawyers to play that role, but the Supreme Court has hardly held their feet to the fire.
Unfortunately, Strickland’s standard is so complex and murky in practice that it requires lawyers to litigate ineffectiveness after the fact. Under Strickland, courts assess ineffective assistance of counsel in retrospect, when reviewing convictions and sentences, and require defendants to bear the burden of proving both (1) deficient performance and (2) prejudice. On performance, reviewing courts must be “highly deferential” and strongly presume that any debatable decisions were reasonable tactical choices rather than errors. It treats lawyering as an art, not a science, with few definable rules. Courts do not seek to raise the prevailing bar, but simply to ensure that defense lawyers’ performance fell within the “wide range” of reasonable competence. In other words, Strickland is supposed to catch outliers but simultaneously makes it hard to define “outliers.” Bar standards and checklists are at most guidelines, not rules. In the past decade or so, the Court has paid more attention to bar standards in assessing counsel’s failures to investigate mitigating evidence in capital cases or to advise clients pleading guilty that they may face deportation. But these guidelines do not amount to codes for defense lawyering; opinions relying on these guidelines are the exception, not the rule.14
By and large, ineffective assistance still depends on fact-specific, case-by-case judgments of effectiveness. The lack of concrete standards impedes teaching defense lawyers how to defend effectively and relieving defendants whose lawyers fail to do so. Strickland is all about reviewing individual cases after the fact, not promulgating or codifying rules for future cases ahead of time. Because the point of the right to counsel is to ensure a fair, adversarial trial, Strickland’s test of prejudice is whether the trial’s result was fair and reliable. Courts will presume prejudice only when the state failed to supply defense counsel altogether or interfered with his performance, or the defense lawyer labored under an actual conflict of interest. Otherwise, defendants must prove, case by case, “a reasonable probability” that the error changed the trial’s verdict of guilt or sentence. “Reasonable probability” means “a probability sufficient to undermine confidence in the outcome,” in light of all the evidence.
The Strickland Court also advised that either prong of the test, performance or prejudice, could come first in a reviewing court’s analysis. Unsurprisingly, this has meant that reviewing courts often start their analysis with a catalogue of the evidence of the defendant’s guilt before finding no prejudice. Once the prejudice issue is settled, courts can briefly ratify the performance of the lawyer or just ignore it altogether. This is one of the reasons why truly horrible lawyering by drunk or sleeping lawyers has been allowed on appeal. The reviewing courts focus on the prosecution’s case (evidence of guilt), find no prejudice, and then glide over the defense work, regardless of how bad it was. To paraphrase Justice Scalia, making prejudice the focus of our ineffective assistance of counsel analysis is “akin to dispensing with jury trial because a defendant is obviously guilty.”15 The primary