Gideon Exceptionalism?

Article excerpt



     A. The Decision
     B. How Do I Love Gideon? Let Me Count the Ways

     A. Mapp v. Ohio's Contraction
     B. Miranda v. Arizona's Contraction
     C. Wade v. United States's Limitation
     D. Gideon's Expansion

     A. The Importance of Adequate Assistance of Defense Counsel
     B. The Legal Standard for Adequate Assistance
     C. Judicial Approval of Inadequate Assistance




There is no doubt that Gideon v. Wainwright (1) is extraordinary. But extraordinariness can come in more than one flavor. In thinking about Gideon, we were reminded of "American exceptionalism," and the diametrically opposed meanings that advocates have ascribed to the phrase. American exceptionalism posits that the United States is qualitatively different from other countries, primarily because it has a specific world mission to spread democracy and liberty.

The related image of the United States as a biblical "citty upon a hill" has deep roots, stemming from a sermon by John Winthrop to the Puritan colonists in the Massachusetts Bay Colony. (2) The phrase "American exceptionalism," however, is bipolar, having been employed almost as frequently to disparage as to laud. It became popular in the 1920s when Stalin used it to chastise American communists who heretically claimed that America's superior resources and lack of class distinctions freed it from Marxist laws of history. (3) However, American conservatives and eventually neoconservatives came to use the term-along with the image of the "shining city on the hill" (4)--to assert superiority and exemption from both the historical forces and rigid class immobility that have affected other countries. (5) That view, in turn, has prompted a fierce backlash in this century, including both normative objections that the morally tainted history of the United States precludes any role as an exemplar of virtue, (6) and positive arguments that social mobility in the United States is less than it is in many other countries. (7)

We don't pretend to have any expertise on American exceptionalism, but we do see parallels to our own thinking about Gideon. However, unlike the participants in the American exceptionalism debates, we have trouble deciding whether we find the laudatory or the disparaging meaning of "Gideon exceptionalism" more compelling. As set forth below, we think Gideon is both a "shining city on a hill" in the world of criminal procedure, and something of a sham. Part I sets forth the extraordinary features of the decision itself, and Part II echoes the aspirational meaning of "Gideon exceptionalism," laying out how the decision has survived largely intact, in sharp comparison to other landmark Warren Court criminal procedure decisions. Part III reverses course, examining how the law of ineffective assistance of counsel renders Gideon's "shining city" illusory for many defendants. Part IV concludes by explaining how the routine denial of investigative and expert assistance to indigent defendants further undercuts Gideon's promise.


A. The Decision

Prior to Gideon, the Supreme Court had held that due process required states to provide counsel for indigent defendants under certain narrow circumstances. In 1932, in Powell v. Alabama, faced with well-known and outrageous facts, the Court held that "in a capital case, where the defendant is unable to employ counsel, and is incapable adequately of making his own defense because of ignorance, feeble-mindedness, illiteracy, or the like, it is the duty of the court, whether requested or not, to assign counsel for him." (8)

But later, in Betts v. Brady, (9) the Court explicitly held that the Due Process Clause did not incorporate the Sixth Amendment guarantee of the right to counsel against the states. …