Become a Patreon!


Excerpted From: Kari Hong, Gideon: Public Law Safeguard, Not a Criminal Procedural Right, 51 University of the Pacific Law Review 741 (2020) (207 Footnotes) (Full Document)


KariHongAmericans know only a handful of Supreme Court cases by name. No doubt “Gideon v. Wainwright” is likely among “Roe v. Wade” and “Miranda” as one of the select grouping of cases that invoke immediate recognition.

Gideon deserves this distinction because it has had the greatest impact on our criminal justice system. Gideon is the reason why the federal and state governments spend taxpayer money to ensure that, for those who cannot afford their own attorney, the government will appoint an attorney to help them negotiate a plea agreement or present a defense at trial.

For a country wedded to the perpetuation of the ideal (or myth) that we all can be the master of our destiny, it is remarkable that Gideon has been a decades-old equalizer of class privilege. Whatever advantages the rich may enjoy without reproach or regulation, the state cannot convict anyone with a crime--the greatest violation of the social order--if their lack of a defense arises from their lack of money to hire the services of a lawyer.

This essay asks and answers whether Gideon's right to appointed counsel could have been (and should have been) more faithfully extended beyond a criminal trial. The answer is a simple yes.

Part I discusses how, when crafted, the right to counsel was born not from hewing to magic words found in the Sixth Amendment. Rather, the Court birthed this fundamental safeguard to level the playing field for the accused and to engender a reliability in the results. When the government writes the laws, funds the courts, picks the judges, hires the prosecutors, and trains the prosecutors to be experts in the laws, there is an astonishing level of asymmetry in the system. Under these conditions, there is a very real possibility that a person who finds themselves charged of a crime “faces the danger of conviction”--not from overwhelming evidence of guilt--but “because he does not know how to establish his innocence.”

In cases before and after Gideon, the Supreme Court described the safeguard of an appointed counsel as being a watershed criminal procedural right, embedded in the Sixth Amendment. However, that is not fully accurate. In 1932, Powell v. Alabama first recognized a right to counsel in capital cases.Powell did not determine that the Sixth Amendment compelled such a remedy. Rather, the right to counsel was the required remedy to offset the fundamental asymmetry that arose in the facts in the case in which two Black, illiterate, young, and nonresidents of Alabama were accused of raping a white girl after a fight occurred on a train between three Black men and seven white men. The Black men were arrested as soon as the train stopped in the town, the trial was set six days after the arraignment, and the trial was completed in one day. Likewise, in 1967, four years after Gideon, Application of Gault required a right to counsel for teenagers in juvenile proceedings to remedy what the Supreme Court called a “kangaroo court.” The origins, decision, and first case to interpret Gideon never confined procedural safeguard to either the Sixth Amendment, or, to what it now understood as a right available only to those in a criminal trial where the penalty could result in imprisonment.

Part II then argues that there is simply no need to limit the guaranteed right to counsel to the criminal context. When asking whether the right to counsel may be faithfully imported to the immigration context, the starting point is that under Gideon, the gravamen of the right to counsel is to level the playing field for all of us who are facing the well-oiled machine of the federal government. This asymmetry is not abstract. For any person who is in immigration court, that person is facing off against a professional government attorney, trained in an exceedingly complex area of law that the said trained government attorneys are experts in. For many, the person is representing themselves, and often, did not even begin with English as their first language. Although scholars have been calling for legal representation for lawful permanent residents (their home is here), asylum seekers (death is different), immigrants with criminal convictions (Padilla v. Kentucky practically created the “Fifth and a half Amendment” right for non-citizens in criminal court), detained immigrants (it is fundamentally unfair for someone to present their defense while locked up), or uniquely vulnerable immigrants (children or the mentally disabled), it becomes pretty clear that the divides between these groups pale in the common theme that there is no fair fight--for anyone in immigration court.

Immigration court is set up to the full and complete advantage of one party-- the same party that is the prosecutor, judge, and executioner.

The universal right to counsel for all immigrants is not a remote possibility waiting for the Supreme Court to realize. Some parties are recognizing that this asymmetry demands a response. For instance, one federal district court judge has ordered the federal government to appoint private counsel to represent a select group of people who are detained and who mentally unable to represent themselves. More compelling, cities, counties, and states are responding to these overwhelming inequities and paying for private attorneys to represent certain immigrants in their jurisdictions. These local interventions are not waiting for the men (and women) in black robes to rethink Gideon, a legal realism that appears less and less remote.

But, what this article seeks to do is ask is, if Gideon can be intellectually expanded to provide for a right to counsel in immigration courts does that right end there? On the one hand, the analogy between incarceration and deportation is apt. The loss of liberty facing the prisoner is most likely on par with loss of legal status for the immigrant that has the consequence of exiling someone from family, history, and for many, the only country they know as home. For those fleeing persecution, the loss of legal status may very much result in death. Those arguing against having appointed attorneys in immigration proceedings are “caught in the paradoxical position of insisting that deportation is not punishment, while nevertheless acknowledging that deportation is often worse than any punishment the courts can impose.”

But, I argue that it is a mistake to condition the right of counsel only on the severity on the outcome of a process. For starters, those who experience the specific adverse outcome arising from civil law are not particularly assuaged by someone else who may be worse off. For instance, for someone who loses custody of their child or loses income from a disability check, the result is life-altering to them.

But more import, the safeguard must be available to offset an unfair process, regardless of whatever the outcome is, so that the process does not lose legitimacy. Whenever there is a courtroom, with procedures and rules created by the government, applying laws passed by the government, and populated by professional lawyers hired to advance the interests of the government, there is simply no fair fight without a lawyer representing the private David on the other side. Indeed, the lawyer might be the metaphorical slingshot, for which there is no chance of success without one.

What is accepted as a near-truism, people will parrot that appointed counsel is for criminal matters but not civil ones. But the language in the Sixth Amendment does not explicitly draw the line between who does and does not get an appointed counsel. If there is a right of counsel to prevent wrongful incarceration for those charged with felonies, it is difficult to parse out criminal trials from all other forums that result in the same, if not greater, risk of innocent people wrongfully convicted and confined. How is it possible to provide appointed counsel for criminal felony trials, and not criminal appeals, misdemeanors, parole and probation hearings, or habeas petitions? This question is particularly pressing given that we know that, in furtherance of the mass incarceration policy, misdemeanors and violations of parole and probation were the front door and back door to ensure most people got caught up in and stayed in the criminal justice system.

Moreover, habeas petitions are the best means to present evidence of actual innocence underlying any and all conviction.

If courts continue to condition the right to appointed counsel on only the threat of mandatory incarceration, why are the most effective tools to prevent incarceration--either through the entry point of misdemeanor or the offered exit of parole--excluded from this right?

On closer examination, Gideon is not engendered from the text of the Sixth Amendment but from the penumbra of due process. If an appointed attorney is the actual remedy to level a playing field that otherwise has a thumb (and hand and full arm) on the scales in favor of the government, a more faithful application of Gideon is to appoint counsel to all who are navigating the rights, remedies, and disabilities in immigration court and in all other fields of public law.

Stated more clearly, appointed counsel should not be available just for criminal trials. The more intellectually honest and constitutionally-sound dividing line between which forums receive appointed attorneys from those who do not is between public law and private law. Every court proceeding that involves the state or federal government--misdemeanors, habeas, immigration, family law, public housing, disability, public education--must expand their understanding of Gideon and provide appointed counsel to face off against the government. This remedy is the only means to both offset the baked-in asymmetry and ensure reliable outcomes is the appointment of counsel.

[. . .]

When Gideon announced its remedy of requiring the government to appoint an attorney to the criminal defendants who cannot afford one, the Warren Court was correct to focus on procedural safeguards. Rights are confined to what a legislature defines within the four corners of a constitution or a statute. But safeguards are expansive and account of the realities of life.

In the immigration context, the Trump administration has rolled back over 100 rights to immigrants by eliminating procedural protections such as hearings, fair judges, and the courts. The maxim “there is no right without a remedy” is turned on its head because Trump is proving that to even get a remedy, one needs first a fair court. Having a lawyer translate the process for people is the essential means by which any fair proceeding occurs.

The notion that proceedings should be fair is not a throw-away aspirational line. In practice, I took on criminal appeals from those incarcerated in California during the 1990s, when the Tough on Crime measures were at their height. In the mail, I received notice that the state court had denied my client's appeal. I sent a letter, and within a couple of days, the client called me from prison. I explained what happened, advised him on the remote chances of success in federal court, and explained that my work with him was done. A day later, his mother called me, she was profusely and effusively thanking me. I immediately assumed that I had a terrible miscommunication with her son. I explained, no, I'm sorry, you do not understand, we lost. Your son will remain in prison. Nothing has changed.

To my surprise, the mother said, no, actually for the first time since this ordeal began, someone had her son's back. He had a chance. He had a fair fight.

These words have stuck with me. It was at this moment that I realized that people can move on from bad outcomes in court. If they feel the fight was fair and they were heard, they can get closure and move on to the cards that life has dealt. It is only for those who feel the rules were rigged, the lawyer was aloof, or no one listened to their side, there there is pain, frustration, and anger. Those feelings are not targeted at the outcome, but at the process itself.

The modest insight from Justice Jackson rings true--so much of what can go wrong or right is not in the substance of a hearing but whether someone is and feels heard. The procedure matters, which is why protections and safeguards are the key ingredient for the tangible benefit of someone facing off against the unlimited resources of the Goliaths, the professional army of government lawyers. Judges deciding the cases in such an asymmetrical system need the David's to have an attorney involved so that they, themselves, have confidence in the reliability and accuracy of their decisions. The system itself ultimately needs a fair fight to remain its legitimacy as a forum that can resolve matters in a fair manner.

So extending appointment counsel to all public law matters is leveling a playing field and guaranteeing that the system is given legitimacy to continue in its mission to resolve the matters before it.

It is proper and just for a federal court to extend Gideon to other all public law matters. Until that happens, though, the other branch of government--the legislative one--is free to enact this safeguard universally as cities, counties, and states have started to do. The Supreme Court gave us a gift with Gideon. There is nothing from stopping us to extend this gift--by legislative action--because it is the right and fair thing to do.

Associate Professor, Boston College Law School.

Become a Patreon!