SUPREME COURT OF THE UNITED STATES, No. 155.

CLARENCE EARL GIDEON,
 Petitioner,

  v.

LOUIE L. WAINWRIGHT, Director,
Division of Corrections,
 Respondent.

Argued Jan. 15, 1963.  Decided March 18, 1963.

COUNSEL
  Abe Fortas, Washington, D.C., for petitioner.
  Bruce R. Jacob, Tallahassee, Fla., for respondent.
  J. Lee Rankin, New York City, for American Civil Liberties Union,
   amicus curiae, by special leave of Court.
  George D. Mentz, Montgomery, Ala., for State of Alabama, amicus
   curiae.

The petitioner brought habeas corpus proceedings against the Director of
the Division of Corrections. The Florida Supreme Court, 135 So.2d 746,
denied all relief, and the petitioner brought certiorari. The United
States Supreme Court, Mr. Justice Black, held that the Sixth Amendment
to the federal Constitution providing that in all criminal prosecutions
the accused shall enjoy right to assistance of counsel for his defense
is made obligatory on the states by the Fourteenth Amendment, and that
an indigent defendant in a criminal prosecution in a state court has the
right to have counsel appointed for him.

United States Supreme Court granted certiorari to review judgment of
Florida Supreme Court denying habeas corpus on ground that indigent
defendant in criminal prosecution in state court has no right to have
counsel appointed for him, in view of fact that problem of defendant's
federal constitutional right to counsel in state court has been
continuing source of controversy and litigation in both state and
federal courts.

Judgment reversed and cause remanded to Florida Supreme Court for
further action.

(CITE AS: 372 U.S. 335)
=====

Mr. Justice BLACK delivered the opinion of the Court.

Petitioner was charged in a Florida state court with having broken and
entered a poolroom with intent to commit a misdemeanor. This offense is
a felony under Florida law. Appearing in court without funds and without
a lawyer, petitioner asked the court to appoint counsel for him,
whereupon the following colloquy took place:

'The COURT: Mr. Gideon, I am sorry, but I cannot appoint Counsel to
represent you in this case. Under the laws of the State of Florida, the
only time the Court can appoint Counsel to represent a Defendant is when
that person is charged with a capital offense. I am sorry, but I will
have to deny your request to appoint Counsel to defend you in this case.

'The DEFENDANT: The United States Supreme Court says I am entitled to be
represented by Counsel.'

Put to trial before a jury, Gideon conducted his defense about as well
as could be expected from a layman. He made an opening statement to the
jury, cross-examined the State's witnesses, presented witnesses in his
own defense, declined to testify himself, and made a short argument
'emphasizing his innocence to the charge contained in the Information
filed in this case.' The jury returned a verdict of guilty, and
petitioner was sentenced to serve five years in the state prison. Later,
petitioner filed in the Florida Supreme Court this habeas corpus
petitioner attacking his conviction and sentence on the ground that the
trial court's refusal to appoint counsel for him denied him rights
'guaranteed by the Constitution and the Bill of Rights by the United
States Government.' [FN1] Treating the petition for habeas corpus as
properly before it, the State Supreme Court, 'upon consideration
thereof' but without an opinion, denied all relief. Since 1942, when
Betts v. Brady, 316 U.S. 455, was decided by a divided Court, the
problem of a defendant's federal constitutional right to counsel in a
state court has been a continuing source of controversy and litigation
in both state and federal courts. [FN2] To give this problem another
review here, we granted certiorari. 370 U.S. 908. Since Gideon was
proceeding in forma pauperis, we appointed counsel to represent him and
requested both sides to discuss in their briefs and oral arguments the
following: 'Should this Court's holding in Betts v. Brady, 316 U.S. 455,
be reconsidered?'

The facts upon which Betts claimed that he had been unconstitutionally
denied the right to have counsel appointed to assist him are strikingly
like the facts upon which Gideon here bases his federal constitutional
claim. Betts was indicted for robbery in a Maryland state court. On
arraignment, he told the trial judge of his lack of funds to hire a
lawyer and asked the court to appoint one for him. Betts was advised
that it was not the practice in that county to appoint counsel for
indigent defendants except in murder and rape cases. He then pleaded not
guilty, had witnesses summoned, cross-examined the State's witnesses,
examined his own, and chose not to testify himself. He was found guilty
by the judge, sitting without a jury, and sentenced to eight years in
prison. Like Gideon, Betts sought release by habeas corpus, alleging
that he had been denied the right to assistance of counsel in violation
of the Fourteenth Amendment. Betts was denied any relief, and on review
this Court affirmed. It was held that a refusal to appoint counsel for
an indigent defendant charged with a felony did not necessarily violate
the Due Process Clause of the Fourteenth Amendment, which for reasons
given the Court deemed to be the only applicable federal constitutional
provision. The Court said: 'Asserted denial (of due process) is to be
tested by an appraisal of the totality of facts in a given case. That
which may, in one setting, constitute a denial of fundamental fairness,
shocking to the universal sense of justice, may, in other circumstances,
and in the light of other considerations, fall short of such denial.'
316 U.S. at 462.

Treating due process as 'a concept less rigid and more fluid than those
envisaged in other specific and particular provisions of the Bill of
Rights,' the Court held that refusal to appoint counsel under the
particular facts and circumstances in the Betts case was not so
'offensive to the common and fundamental ideas of fairness' as to amount
to a denial of due process. Since the facts and circumstances of the two
cases are so nearly indistinguishable, we think the Betts v. Brady
holding if left standing would require us to reject Gideon's claim that
the Constitution guarantees him the assistance of counsel.

Upon full reconsideration we conclude that Betts v. Brady should be
overruled.

II.

The Sixth Amendment provides, 'In all criminal prosecutions, the accused
shall enjoy the right * * * to have the Assistance of Counsel for his
defence.' We have construed this to mean that in federal courts counsel
must be provided for defendants unable to employ counsel unless the
right is competently and intelligently waived. [FN3] Betts argued that
this right is extended to indigent defendants in state courts by the
Fourteenth Amendment. In response the Court stated that, while the Sixth
Amendment laid down 'no rule for the conduct of the states, the question
recurs whether the constraint laid by the amendment upon the national
courts expresses a rule so fundamental and essential to a fair trial,
and so, to due process of law, that it is made obligatory upon the
states by the Fourteenth Amendment.' 316 U.S. at 465. In order to decide
whether the Sixth Amendment's guarantee of counsel is of this
fundamental nature, the Court in Betts set out and considered
'(r)elevant data on the subject * * * afforded by constitutional and
statutory provisions subsisting in the colonies and the states prior to
the inclusion of the Bill of Rights in the national Constitution, and in
the constitutional, legislative, and judicial history of the states to
the present date.' 316 U.S. at 465. On the basis of this historical data
the Court concluded that 'appointment of counsel is not a fundamental
right, essential to a fair trial.' 316 U.S. at 471. It was for this
reason the Betts Court refused to accept the contention that the Sixth
Amendment's guarantee of counsel for indigent federal defendants was
extended to or, in the words of that Court, 'made obligatory upon the
states by the Fourteenth Amendment'. Plainly, had the Court concluded
that appointment of counsel for an indigent criminal defendant was 'a
fundamental right, essential to a fair trial,' it would have held that
the Fourteenth Amendment requires appointment of counsel in a state
court, just as the Sixth Amendment requires in a federal court.

We think the Court in Betts had ample precedent for acknowledging that
those guarantees of the Bill of Rights which are fundamental safeguards
of liberty immune from federal abridgment are equally protected against
state invasion by the Due Process Clause of the Fourteenth Amendment.
This same principle was recognized, explained, and applied in Powell v.
Alabama, 287 U.S. 45 (1932), a case upholding the right of counsel,
where the Court held that despite sweeping language to the contrary in
Hurtado v. California, 110 U.S. 516 (1884), the Fourteenth Amendment
'embraced' those "fundamental principles of liberty and justice which
lie at the base of all our civil and political institutions," even
though they had been 'specifically dealt with in another part of the
Federal Constitution.' 287 U.S. at 67.

In many cases other than Powell and Betts, this Court has looked to the
fundamental nature of original Bill of Rights guarantees to decide
whether the Fourteenth Amendment makes them obligatory on the States.
Explicitly recognized to be of this 'fundamental nature' and therefore
made immune from state invasion by the Fourteenth, or some part of it,
are the First Amendment's freedoms of speech, press, religion, assembly,
association, and petition for redress of grievances. [FN4] For the same
reason, though not always in precisely the same terminology, the Court
has made obligatory on the States the Fifth Amendment's command that
private property shall not be taken for public use without just
compensation, [FN5] the Fourth Amendment's prohibition of unreasonable
searches and seizures, [FN6] and the Eighth's ban on cruel and unusual
punishment. [FN7] On the other hand, this Court in Palko v. Connecticut,
302 U.S. 319 (1937), refused to hold that the Fourteenth Amendment made
the double jeopardy provision of the Fifth Amendment obligatory on the
States. In so refusing, however, the Court, speaking through Mr. Justice
Cardozo, was careful to emphasize that 'immunities that are valid as
against the federal government by force of the specific pledges of
particular amendments have been found to be implicit in the concept of
ordered liberty, and thus, through the Fourteenth Amendment, become
valid as against the states' and that guarantees 'in their origin * * *
effective against the federal government alone' had by prior cases 'been
taken over from the earlier articles of the Federal Bill of Rights and
brought within the Fourteenth Amendment by a process of absorption.' 302
U.S., at 324-25, 326.

We accept Betts v. Brady's assumption, based as it was on our prior
cases, that a provision of the Bill of Rights which is 'fundamental and
essential to a fair trial' is made obligatory upon the States by the
Fourteenth Amendment. We think the Court in Betts was wrong, however, in
concluding that the Sixth Amendment's guarantee of counsel is not one of
these fundamental rights. Ten years before Betts v. Brady, this Court,
after full consideration of all the historical data examined in Betts,
had unequivocally declared that 'the right to the aid of counsel is of
this fundamental character.' Powell v. Alabama, 287 U.S. 45, 68, (1932).
While the Court at the close of its Powell opinion did by its language,
as this Court frequently does, limit its holding to the particular facts
and circumstances of that case, its conclusions about the fundamental
nature of the right to counsel are unmistakable. Several years later, in
1936, the Court reemphasized what it had said about the fundamental
nature of the right to counsel in this language:

'We concluded that certain fundamental rights, safeguarded by the first
eight amendments against federal action, were also safeguarded against
state action by the due process of law clause of the Fourteenth
Amendment, and among them the fundamental right of the accused to the
aid of counsel in a criminal prosecution.' Grosjean v. American Press
Co., 297 U.S. 233, 243-44, (1936).

And again in 1938 this Court said:

'(The assistance of counsel) is one of the safeguards of the Sixth
Amendment deemed necessary to insure fundamental human rights of life
and liberty. * * * The Sixth Amendment stands as a constant admonition
that if the constitutional safeguards it provides be lost, justice will
not 'still be done." Johnson v.Zerbst, 304 U.S. 458, 462 (1938). To the
same effect, see Avery v. Alabama, 308 U.S. 444 (1940), and Smith v.
O'Grady, 312 U.S. 329 (1941).

In light of these and many other prior decisions of this Court, it is
not surprising that the Betts Court, when faced with the contention that
'one charged with crime, who is unable to obtain counsel, must be
furnished counsel by the state,' conceded that '(e)xpressions in the
opinions of this court lend color to the argument * * *' 316 U.S., at
462--463. The fact is that in deciding as it did--that 'appointment of
counsel is not a fundamental right, essential to a fair trial'--the
Court in Betts v. Brady made an abrupt break with its own well-
considered precedents. In returning to these old precedents, sounder we
believe than the new, we but restore constitutional principles
established to achieve a fair system of justice. Not only these
precedents but also reason and reflection require us to recognize that
in our adversary system of criminal justice, any person haled into
court, who is too poor to hire a lawyer, cannot be assured a fair trial
unless counsel is provided for him. This seems to us to be an obvious
truth. Governments, both state and federal, quite properly spend vast
sums of money to establish machinery to try defendants accused of crime.

Lawyers to prosecute are everywhere deemed essential to protect the
public's interest in an orderly society. Similarly, there are few
defendants charged with crime, few indeed, who fail to hire the best
lawyers they can get to prepare and present their defenses. That
government hires lawyers to prosecute and defendants who have the money
hire lawyers to defend are the strongest indications of the wide--spread
belief that lawyers in criminal courts are necessities, not luxuries.
The right of one charged with crime to counsel may not be deemed
fundamental and essential to fair trials in some countries, but it is in
ours. From the very beginning, our state and national constitutions and
laws have laid great emphasis on procedural and substantive safeguards
designed to assure fair trials before impartial tribunals in which every
defendant stands equal before the law. This noble ideal cannot be
realized if the poor man charged with crime has to face his accusers
without a lawyer to assist him. A defendant's need for a lawyer is
nowhere better stated than in the moving words of Mr. Justice Sutherland
in Powell v. Alabama:

'The right to be heard would be, in many cases, of little avail if it
did not comprehend the right to be heard by counsel. Even the
intelligent and educated layman has small and sometimes no skill in the
science of law. If charged with crime, he is incapable, generally, of
determining for himself whether the indictment is good or bad. He is
unfamiliar with the rules of evidence. Left without the aid of counsel
he may be put on trial without a proper charge, and convicted upon
incompetent evidence, or evidence irrelevant to the issue or otherwise
inadmissible. He lacks both the skill and knowledge adequately to
prepare his defense, even though he have a perfect one. He requires the
guiding hand of counsel at every step in the proceedings against him.
Without it, though he be not guilty, he faces the danger of conviction
because he does not know how to establish his innocence.' 287 U.S., at
68-9.

The Court in Betts v. Brady departed from the sound wisdom upon which
the Court's holding in Powell v. Alabama rested. 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.

The judgment is reversed and the cause is remanded to the Supreme Court
of Florida for further action not inconsistent with this opinion.

Reversed.


FN1. Later in the petition for habeas corpus, signed and apparently
prepared by petitioner himself, he stated, 'I, Clarence Earl Gideon,
claim that I was denied the rights of the 4th, 5th and 14th amendments
of the Bill of Rights.'

FN2. Of the many such cases to reach this Court, recent examples are
Carnley v. Cochran, 369 U.S. 506 (1962); Hudson v. North Carolina, 363
U.S. 697 (1960); Moore v. Michigan, 355 U.S. 155 (1957). Illustrative
cases in the state courts are Artrip v. State, 41 Ala.App. 492 (Ct.App.
Ala. 1962); Shaffer v. Warden, 211 Md. 635 (1956). For examples of
commentary, see Allen, The Supreme Court, Federalism, and State Systems
of Criminal Justice, 8 De Paul L.Rev. 213 (1959); Kamisar, The Right to
Counsel and the Fourteenth Amendment: A Dialogue on 'The Most Pervasive
Right' of an Accused, 30 U. of Chi.L.Rev. 1 (1962); The Right to Counsel,
45 Minn.L.Rev. 693 (1961).

FN3. Johnson v. Zerbst, 304 U.S. 458 (1938).

FN4. E.g., Gitlow v. New York, 268 U.S. 652, 666 (1925) (speech and
press); Lovell v. City of Griffin, 303 U.S. 444, 450 (1938) (speech and
press); Staub v. City of Baxley, 355 U.S. 313, 321 (1958) (speech);
Grosjean v. American Press Co., 297 U.S. 233, 244 (1936) (press);
Cantwell v. Connecticut, 310 U.S. 296, 303 (1940) (religion); De Jonge
v. Oregon, 299 U.S. 353, 364 (1937) (assembly); Shelton v. Tucker, 364
U.S. 479, 486, 488 (1960) (association); Louisiana ex rel. Gremillion v.
NAACP, 366 U.S. 293, 296 (1961) (association); Edwards v. South
Carolina, 372 U.S. 229 (1963) (speech, assembly, petition for redress of
grievances).

FN5. E.g., Chicago, B. & Q.R. Co. v. Chicago, 166 U.S. 226, 235-41
(1897); Smyth v. Ames, 169 U.S. 466, 522-26 (1898).

FN6. E.g., Wolf v. Colorado, 338 U.S. 25, 27-28 (1949); Elkins v.
United States, 364 U.S. 206, 213 (1960); Mapp v. Ohio, 367 U.S. 643, 655
(1961).

FN7. Robinson v. California, 370 U.S. 660, 666 (1962).
======

Mr. Justice DOUGLAS.

While I join the opinion of the Court, a brief historical resume of the
relation between the Bill of Rights and the first section of the
Fourteenth Amendment seems pertinent. Since the adoption of that
Amendment, ten Justices have felt that it protects from infringement by
the States the privileges, protections, and safeguards granted by the
Bill of Rights.

Justice Field, the first, Justice Harlan, and probably Justice Brewer,
took that position in O'Neil v. Vermont, 144 U.S. 323, 362-63, 370-71,
as did Justices Black, Douglas, Murphy and Rutledge in Adamson v.
California, 332 U.S. 46, 71--72 1903. And see Poe v. Ullman, 367 U.S.
467, 515-22 (dissenting opinion). That view was also expressed by
Justices Bradley and Swayne in the Slaughter-House Cases, 16 Wall. 36,
118-19, 122, and seemingly was accepted by Justice Clifford when he
dissented with Justice Field in Walker v. Sauvinet, 92 U.S. 90, 92.
[FN1] Unfortunately it has never commanded a Court.

Yet, happily, all constitutional questions are always open. Erie R. Co.
v. Tompkins, 304 U.S. 64. And what we do today does not foreclose the
matter.

My Brother HARLAN is of the view that a guarantee of the Bill of Rights
that is made applicable to the States by reason of the Fourteenth
Amendment is a lesser version of that same guarantee as applied to the
Federal Government. [FN2] Mr. Justice Jackson shared that view. [FN3]

But that view has not prevailed [FN4] and rights protected against state
invasion by the Due Process Clause of the Fourteenth Amendment are not
watered-down versions of what the Bill of Rights guarantees.


FN1. Justices Bradley, Swayne and Field emphasized that the first eight
Amendments granted citizens of the United States certain privileges and
immunities that were protected from abridgment by the States by the
Fourteenth Amendment. See Slaughter-House Cases, supra, 16 Wall. at 118-
119; O'Neil v. Vermont, supra, 144 U.S. at 363. Justices Harlan and
Brewer accepted the same theory in the O'Neil case (see id., at 370-
371), though Justice Harlan indicated that all 'persons,' not merely
'citizens,' were given this protection. Ibid. In Twining v. New Jersey,
211 U.S. 78, 117, Justice Harlan's position was made clear:

'In my judgment, immunity from self-incrimination is protected against
hostile state action, not only by * * * (the Privileges and Immunities
Clause), but (also) by * * * (the Due Process Clause).'

Justice Brewer, in joining the opinion of the Court, abandoned the view
that the entire Bill of Rights applies to the States in Maxwell v. Dow,
176 U.S. 581.

FN2. See Roth v. United States, 354 U.S. 476, 501, 506; Smith v.
California, 361 U.S. 147, 169.

FN3. Beauharnais v. Illinois, 343 U.S. 250, 288. Cf. the opinions of
Justices Holmes and Brandeis in Gitlow v. New York, 268 U.S. 652, 672,
and Whitney v. California, 274 U.S. 357, 372.

FN4. The cases are collected by Mr. Justice Black in Speiser v. Randall,
357 U.S. 513, 530. And see, Ohio ex rel. Eaton v. Price, 364 U.S. 263,
274-76.
======

Mr. Justice CLARK, concurring in the result.

In Bute v. Illinois, 333 U.S. 640 (1948) this Court found no special
circumstances requiring the appointment of counsel but stated that 'if
these charges had been capital charges, the court would have been
required, both by the state statute and the decisions of this Court
interpreting the Fourteenth Amendment, to take some such steps.' Id., at
674. Prior to that case I find no language in any cases in this Court
indicating that appointment of counsel in all capital cases was required
by the Fourteenth Amendment. [FN1] At the next Term of the Court Mr.
Justice Reed revealed that the Court was divided as to noncapital cases
but that 'the due process clause * * * requires counsel for all persons
charged with serious crimes * * *.' Uveges v. Pennsylvania, 335 U.S.
437, 441 (1948). Finally, in Hamilton v. Alabama, 368 U.S. 52 (1961), we
said that '(w)hen one pleads to a capital charge without benefit of
counsel, we do not stop to determine whether prejudice resulted.' Id.,
at 55.

That the Sixth Amendment requires appointment of counsel in 'all
criminal prosecutions' is clear, both from the language of the Amendment
and from this Court's interpretation. See Johnson v. Zerbst, 304 U.S.
458 (1938). It is equally clear from the above cases, all decided after
Betts v. Brady, 316 U.S. 455 (1942), that the Fourteenth Amendment
requires such appointment in all prosecutions for capital crimes. The
Court's decision today, then, does no more than erase a distinction
which has no basis in logic and an increasingly eroded basis in
authority. In Kinsella v. United States ex rel. Singleton, 361 U.S. 234
(1960), we specifically rejected any constitutional distinction between
capital and noncapital offenses as regards congressional power to
provide for court-martial trials of civilian dependents of armed forces
personnel. Having previously held that civilian dependents could not
constitutionally be deprived of the protections of Article III and the
Fifth and Sixth Amendments in capital cases, Reid v. Covert, 354 U.S. 1
(1957), we held that the same result must follow in noncapital cases.
Indeed, our opinion there foreshadowed the decision today, [FN2] as we
noted that:

'Obviously Fourteenth Amendment cases dealing with state action have no
application here, but if they did, we believe that to deprive civilian
dependents of the safeguards of a jury trial here * * * would be as
invalid under those cases as it would be in cases of a capital nature.'
361 U.S., at 246-47.

I must conclude here, as in Kinsella, supra, that the Constitution makes
no distinction between capital and noncapital cases. The Fourteenth
Amendment requires due process of law for the deprival of 'liberty' just
as for deprival of 'life,' and there cannot constitutionally be a
difference in the quality of the process based merely upon a supposed
difference in the sanction involved.

How can the Fourteenth Amendment tolerate a procedure which it condemns
in capital cases on the ground that deprival of liberty may be less
onerous than deprival of life--a value judgment not universally accepted
[FN3]--or that only the latter deprival is irrevocable? I can find no
acceptable rationalization for such a result, and I therefore concur in
the judgment of the Court.


FN1. It might, however, be said that there is such an implication in
Avery v. Alabama, 308 U.S. 444 (1940), a capital case in which counsel
had been appointed but in which the petitioner claimed a denial of
'effective' assistance. The Court in affirming noted that '(h)ad
petitioner been denied any representation of counsel at all, such a
clear violation of the Fourteenth Amendment's guarantee of assistance of
counsel would have required reversal of his conviction.' Id., at 445. No
'special circumstances' were recited by the Court, but in citing Powell
v. Alabama, 287 U.S. 45 (1932), as authority for its dictum it appears
that the Court did not rely solely on the capital nature of the offense.

FN2. Portents of today's decision may be found as well in Griffin v.
Illinois, 351 U.S. 12 (1956), and Ferguson v. Georgia, 365 U.S. 570
(1961). In Griffin, a noncapital case, we held that the petitioner's
constitutional rights were violated by the State's procedure, which
provided free transcripts for indigent defendants only in capital cases.
In Ferguson we struck down a state practice denying the appellant the
effective assistance of counsel, cautioning that '(o)ur decision does
not turn on the facts that the appellant was tried for a capital offense
and was represented by employed counsel. The command of the Fourteenth
Amendment also applies in the case of an accused tried for a noncapital
offense, or represented by appointed counsel.' 365 U.S., at 596.

FN3. See, e.g., Barzun, In Favor of Capital Punishment, 31 American
Scholar 181, 188--189 (1962).
======

Mr. Justice HARLAN, concurring.

I agree that Betts v. Brady should be overruled, but consider it
entitled to a more respectful burial than has been accorded, at least on
the part of those of us who were not on the Court when that case was
decided.

I cannot subscribe to the view that Betts v. Brady represented 'an
abrupt break with its own well-considered precedents.' Ante, p.796. In
1932, in Powell v. Alabama, 287 U.S. 45, a capital case, this Court
declared that under the particular facts there presented--'the ignorance
and illiteracy of the defendants, their youth, the circumstances of
public hostility * * * and above all that they stood in deadly peril of
their lives' (287 U.S., at 71)--the state court had a duty to assign
counsel for the trial as a necessary requisite of due process of law. It
is evident that these limiting facts were not added to the opinion as an
after-thought; they were repeatedly emphasized, see 287 U.S., at 52, 57-
-58, 71 and were clearly regarded as important to the result.

Thus when this Court, a decade later, decided Betts v. Brady, it did no
more than to admit of the possible existence of special circumstances in
noncapital as well as capital trials, while at the same time insisting
that such circumstances be shown in order to establish a denial of due
process. The right to appointed counsel had been recognized as being
considerably broader in federal prosecutions, see Johnson v. Zerbst, 304
U.S. 458, but to have imposed these requirements on the States would
indeed have been 'an abrupt break' with the almost immediate past. The
declaration that the right to appointed counsel in state prosecutions,
as established in Powell v. Alabama, was not limited to capital cases
was in truth not a departure from, but an extension of, existing
precedent.

The principles declared in Powell and in Betts, however, have had a
troubled journey throughout the years that have followed first the one
case and then the other. Even by the time of the Betts decision, dictum
in at least one of the Court's opinions had indicated that there was an
absolute right to the services of counsel in the trial of state capital
cases. [FN1] Such dicta continued to appear in subsequent decisions,
[FN2] and any lingering doubts were finally eliminated by the holding of
Hamilton v. Alabama, 368 U.S. 52. [FN3] However, no such decision has
been cited to us, and I have found none, after Quicksall v. Michigan,
339 U.S. 660 decided in 1950. At the same time, there have been not a
few cases in which special circumstances were found in little or nothing
more than the 'complexity' of the legal questions presented, although
those questions were often of only routine difficulty. [FN4] The Court
has come to recognize, in other words, that the mere existence of a
serious criminal charge constituted in itself special circumstances
requiring the services of counsel at trial. In truth the Betts v. Brady
rule is no longer a reality.

In noncapital cases, the 'special circumstances' rule has continued to
exist in form while its substance has been substantially and steadily
eroded. In the first decade after Betts, there were cases in which the
Court found special circumstances to be lacking, but usually by a
sharply divided vote.

This evolution, however, appears not to have been fully recognized by
many state courts, in this instance charged with the front-line
responsibility for the enforcement of constitutional rights. [FN5] To
continue a rule which is honored by this Court only with lip service is
not a healthy thing and in the long run will do disservice to the
federal system.

The special circumstances rule has been formally abandoned in capital
cases, and the time has now come when it should be similarly abandoned
in noncapital cases, at least as to offenses which, as the one involved
here, carry the possibility of a substantial prison sentence. (Whether
the rule should extend to all criminal cases need not now be decided.)
This indeed does no more than to make explicit something that has long
since been foreshadowed in our decisions.

In agreeing with the Court that the right to counsel in a case such as
this should now be expressly recognized as a fundamental right embraced
in the Fourteenth Amendment, I wish to make a further observation. When
we hold a right or immunity, valid against the Federal Government, to be
'implicit in the concept of ordered liberty' [FN6] and thus valid
against the States, I do not read our past decisions to suggest that by
so holding, we automatically carry over an entire body of federal law
and apply it in full sweep to the States.

Any such concept would disregard the frequently wide disparity between
the legitimate interests of the States and of the Federal Government,
the divergent problems that they face, and the significantly different
consequences of their actions. Cf. Roth v. United States, 354 U.S. 476,
496--508 (separate opinion of this writer). In what is done today I do
not understand the Court to depart from the principles laid down in
Palko v. Connecticut, 302 U.S. 319, or to embrace the concept that the
Fourteenth Amendment 'incorporates' the Sixth Amendment as such.

On these premises I join in the judgment of the Court.


FN1. Avery v. Alabama, 308 U.S. 444, 445.

FN2. E.g., Bute v. Illinois, 333 U.S. 640, 674; Uveges v. Pennsylvania,
335 U.S. 437, 441.

FN3. E.g., Foster v. Illinois, 332 U.S. 134; Bute v. Illinois, 333 U.S.
640; Gryger v. Burke, 334 U.S. 728.

FN4. E.g., Williams v. Kaiser, 323 U.S. 471; Hudson v. North Carolina,
363 U.S. 697; Chewning v. Cunningham, 368 U.S. 443.

FN5. See, e.g., Commonwealth ex rel. Simon v. Maroney, 405 Pa. 562
(1961); Shaffer v. Warden, 211 Md. 635 (1956); Henderson v. Bannan, 256
F.2d 363 (6th Cir. 1958).

FN6. Palko v. Connecticut, 302 U.S. 319, 325.

-----
Brought to you by - THE 'LECTRIC LAW LIBRARY
The Net's Finest Legal Resource For Legal Pros & Laypeople Alike.
http://www.lectlaw.com