GIDEON v. WAINWRIGHT. WAINWRIGHT, CORRECTIONS ......GIDEON v. WAINWRIGHT. 335 Opinion of the Court. Florida law. Appearing in court without funds and with-out a lawyer, petitioner

GIDEON v. WAINWRIGHT.

Syllabus.

GIDEON v. WAINWRIGHT, CORRECTIONSDIRECTOR.

CERTIORARI TO THE SUPREME COURT OF FLORIDA.

No. 155. Argued January 15, 1963.-Decided March 18, 1963.

Charged in a Florida State Court with a noncapital felony, peti--tioner appeared without funds and without counsel and askedthe Court to appoint counsel for him; but this was denied on theground that the state law permitted appointment of counsel forindigent defendants in capital cases only. Petitioner conducted hisown defense about as well as could be expected of a layman; buthe was convicted and sentenced to imprisonment. Subsequently,he applied to the State Supreme Court for a writ of habeas corpus,on the ground that his conviction violated his rights under theFederal Constitution. The State Supreme Court denied all relief.Held: The right of an indigent defendant in a criminal trial to havetht assistance of counsel is a fundamental right essential to a fairtrial, and petitioner's trial and conviction without th~e assistanceof counsel violated the Fourteenth Amendment. Betts v. Brady,316 U. S. 455, overruled. Pp. 336-345.

Reversed and cause remanded.

Abe Fortas, by appointment of the Court, 370 U. S. 932,argued the cause for petitioner. With him on the briefwere Abe Krash and Ralph Temple.

Bruce R. Jacob, Assistant Attorney General of Florida,argued the cause for respondent. With him on the briefwere Richard W. Ervin, Attorney General, and A. G.Spicola, Jr., Assistant Attorney General.

J. Lee Rankin, by special leave of Court, argued thecause for the American Civil Liberties Union et al., asamici curiae, Urging reversal. With him on the brief wereNorman Dorsen, John Dwight Evans, Jr., Melvin L. Wulf,Richard J. Medalie, Howard W. Dixon and Richard YaleFeder.

George D. Mentz, Assistant Attorney General of Ala-bama, argued the cause for the State of Alabama, as

OCTOBER TERM, 1962.

Opinion of the Court. 372 U. S.

amicus curiae; urging affirmance. With him on the briefwere MacDonald Gallion, Attorney General of Alabama,T. W. Bruton, Attorney General of North Carolina, andRalph Moody, Assistant Attorney General of NorthCarolina.

A brief for the state governments of twenty-two Statesand Commonwealths, as amici curiae, urging reversal, wasfiled by Edward J. McCormack, Jr., Attorney General ofMassachusetts, Walter F. Mondale, Attorney General ofMinnesota, Duke W. Dunbar, Attorney General of Colo-rado, Albert L. Coles, Attorney General of Connecticut,Eugene Cook, Attorney General of Georgia, Shiro Ka-shiwa, Attorney General of Hawaii, Frank Benson, Attor-ney General of Idaho, William G. Clark, Attorney Generalof Illinois, Evan L. Hultman, Attorney General of Iowa,John B. Breckinridge, Attorney General of Kentucky,Frank E. Hancock, Attorney General of Maine, Frank J.Kelley, Attorney General of Michigan, Thomas F. Eagle-ton, Attorney General of Missouri, Charles E. Springer,Attorney General of Nevada, Mark McElroy, AttorneyGeneral of Ohio, Leslie R. Burgum, Attorney General ofNorth Dakota, Robert Y. Thornton, Attorney Generalof Oregon, J. Joseph Nugent, Attorney General of RhodeIsland, A. C. Miller, Attorney General of South Dakota,John J. O'Connell, Attorney General of Washington,C. Donald Robertson, Attorney General of West Virginia,and George N. Hayes, Attorney General of Alaska

Robert Y. Thornton, Attorney General of Oregon, andHarold W. Adams, Assistant Attorney General, filed aseparate brief for the State of Oregon, as amicus curiae.

MR. JUSTICE BLACK delivered the oninion of the Court.Petitioner was charged in a Florida state court with

having broken and entered a .poolroom with intent tocommit a misdemeanor. This offense is a felony under


335 Opinion of the Court.

Florida law. Appearing in court without funds and with-out a lawyer, petitioner asked the court to appoint counselfor him, whereupon the following colloquy took place:

"The CoURT: Mr. Gideon, I am sorry, but I can-not appoint Counsel to represent you in this case.Under the laws of the State of Florida, the only timethe Court can appoint Counsel to represent a Defend-ant is when that person is charged with a capitaloffense. I am sorry, but I will have to deny yourrequest to appoint Counsel to defend you in this case.

"The DEFENDANT: The United States SupremeCourt says I am entitled to be represented byCounsel."

Put to trial before a jury, Gideon conducted his defenseabout as well as could be expected from a layman. Hemade an opening statement to the jury, cross-examinedthe State's witnesses, presented witnesses in his own de-fense, declined to testify himself, and. made a short argu-ment "emphasizing his innocence to the charge containedin the Information filed in this case." The jury returneda verdict of guilty, and petitioner was sentenced to servefive years in the state prison. Later, petitioner filed inthe Florida Supreme Court this habeas corpus petitionattacking his conviction and sentence on the ground thatthe trial court's refusal to appoint counsel for him deniedhim rights "guaranteed by the Constitution and the Billof Rights by the United States Government." I Treatingthe petition for habeas corpus as properly before it, theState Supreme Court, "upon consideration thereof" butwithout an opinion, denied all relief. Since 1942, whenBetts v. Brady, 316 U. S. 455, was decided by a divided

1 Later in the petition for habeas corpus, signed and apparentlyprepared by petitioner himself, he stated, "I, Clarence Earl Gideon,claim that I was denied the rights of the 4th, 5th and 14th amend-ments of the Bill of Rights."

692-437 0-63-26

OCTOBER TERM, 1962.


Court, the problem of a defendant's federal constitutionalright to counsel in a state court has been a continuingsource of controversy and litigation in both state andfederal courts. To give this problem another reviewhere, we granted certiorari. 370 U. S. 908. Since Gideonwas proceeding in forma pauperis, we appointed counselto represent him and requested both sides to discuss intheir briefs and oral arguments the following: "Shouldthis Court's holding-in Betts v. Brady, 316 U. S. 455, bereconsidered?"

I.

The facts upon which Betts claimed that he had beenunconstituitionally denied.the right to have counsel ap-pointed to assist him are strikingly like the facts uponwhich 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 offunds to hire a lawyer and asked the court to appoint onefor him. Betts was advised that it was not the practicein that county to appoint counsel for indigent defendantsexcept in murder and rape cases. He then pleaded notguilty, had witnesses summoned, cross-examined theState's witnesses, examined his own, and chose not totestify himself. He was found guilty by the judge, sit-ting without a jury, and sentenced to eight years in prison.

2 Of the many such cases to reach this Court, recent examples areCarnley 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, 136 So. 2d574 (Ct. App. Ala. 1962) ; Shaffer v. Warden, 211 Md. 635, 126 A. 2d573 (1956). For examples of commentary, see Allen, The SupremeCourt, Federalism, and State Systems of Criminal Justice, 8 De PaulL. Rev. 213 (1959); Kamisar, The Right to.Counsel and the Four-teenth Amendment: A Dialogue on "The Most Pervasive Right" ofan Accused, 30 U. of Chi. L. Rev. 1 (1962); The Right to Counsel,45 Minn. L. Rev. 693 (1961).



Like Gideon, Betts sought release by habeas corpus,alleging that he had been denied the right to assistanceof counsel in violation of the Fourteenth Amendment.Betts was denied any relief, and on review this Courtaffirmed., It was held that a refusal to appoint counselfor an indigent defendant charged with a felony did notnecessarily violate the Due Process Clause of the Four-teenth Amendment, which for reasons given the Courtdeemed to be the only applicable federal constitutionalprovision. The Court said:

"Asserted denial [of due process] is to be tested byan appraisal of the totality of facts in a given case.That which may, in one setting, constitute a denialof fundamental fairness, shocking to the universalsense of justice, may, in other circumstances, and inthe light of other considerations, fall short of suchdenial." 316 U. S., at 462.

rreating due process as "a concept less rigid and moreatuid than those envisaged in other specific and particularprovisions of the Bill of Rights," the Court held that re-fusal to appoint counsel under the particular facts andcircumstances in the Betts case was not so "offensive tothe common and fundamental ideas of fairness" as toamount to a denial of due process. Since the facts andcircumstances of the two cases are so nearly indistinguish-able, we think the Betts V. Brady holding if left standingwould require us to reject Gideon's claim that the Con-stitution guarantees him the assistance of counsel. Uponfull reconsideration we conclude that Betts v. Bradyshould be overruled.

II.

The Sixth Amendment provides, "In all criminal prose-cutions, the accused shall enjoy the right . . . to have theAssistance of Counsel for his defence." We have con-

OCTOBER TERM, 1962.


strued this to mean that in federal courts counsel must beprovided for defendants unable to employ counsel unlessthe right is competently and intelligently waived.' Bettsargued that this right is extended to indigent defendantsin state courts by the Fourteenth Amendment. In re-sponse the Court stated that, while the Sixth Amendmentlaid down "no rule for the conduct of the States, the ques-tion recurs whether the constraint laid by the Amendmentupon the national courts expresses a rule so fundamentaland essential to a fair trial, and so, to due process of law,that it is made obligatory upon the States by the Four-teenth Amendment." 316 U. S., at 465. In order tQ,decide whether the Sixth Amendment's guarantee oicounsel is of this fundamental nature, the Court in Bettsset out and considered "[r]elevant data on the subject...afforded by constitutional and statutory provisions sub-sisting in the colonies and the States prior to the inclusionof the Bill of Rights in the national Constitution, and inthe constitutional, legislative, and judicial history of theStates to the present date." 316 U. S., at 465. On thebasis of this historical data the Court concluded that"appointment of counsel is not a fundamental right, essen-tial to a fair trial." 316 U. S.; at 471. It was for thisreason the Betts Court refused to accept the contentionthat the Sixth Amendment's guarantee of counsel forindigent federal defendants was extended to or, in thewords of that Court, "made obligatory upon the Statesby the Fourteenth Amendment." Plainly, had the Courtconcluded that appointment of counsel for an indigentcriminal defendant was "a fundamental right, essential toa fair trial," it would have held that the FourteenthAmendment requires appointment of counsel in' a statecourt, just as the Sixth Amendment requires in a federalcourt.

SJohnson v. Zerbat, 304 U. S. 458 (1938).



We think the Court in Betts had ample precedent foracknowledging that those guarantees of the Bill of Rightswhich are fundamental safeguards of liberty immunefrom federal abridgment are equally protected againststate invasion by the Due Process Clause of the Four-teenth 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 theCourt held that despite sweeping language to the contraryin Hurtado v. California, 110 U. S. 516 (1884), the Four-teenth Amendment "embraced" those "'fundamentalprinciples of liberty and justice which lie at.the base of allour civil and political institutions,' "even though they hadbeen "specifically dealt with in another part of the fed-eral Constitution.." 287 U. S., at 67. In many casesother than Powell and Betts, this Court has looked to thefundamental nature of original Bill of Rights guaranteesto decide whi"ther the Fourteenth Amendment makesthem obligatory on the States. Explicitly recognized tobe of this "fundamental nature" and therefore made im-mune from state invasion by the Fourteenth, or some partof it, are the First Amendment's freedoms of speech, press,religion, assembly, association, and petition for redress ofgrievances. For the same reason, though not always inprecisely the same terminology, the Court hag made oblig-atory on the States the Fifth Amendment's command that

4E. g., Gitlow v. New York, 268 U. S. 652, 666 (1925) (speech andpress); Lovell v. City of Griffin, 303 U. S. 444, 450 (1938) (speechand press); Staub v. City of Baxley, 355 U. S. 313, 321 (1958)(speech); Groejean v. American Press Co., 297 U. S. 233, 244 (193a)(press); Cantwell v. Connecticut, 310 U. S. 296, 303 (1940) (religion);De Jonge v. Oregon, 299 U. S. 353, 364 (1937) (assembly); Sheltonv. Tucker, 364 U. S. 479, 486, 488 (1960) (association); Louisiana exrel. 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).

OCTOBER TERM, 1962.


private property shall not be taken for public use withoutjust compensation,5 the Fourth Amendment's prohibitionof unreasonable searches and seizures,' and the Eighth'sban on cruel and unusual punishment.! On the otherhand, this Court in Palko v. Connecticut, 302 U. S. 319(1937), refused to hold that the Fourteenth Amendmentmade the double jecpnrdy provision of the Fifth Amend-ment obligatory on the States. In so refusing, however,the Court, speaking through Mr. Justice Cardozo, wascareful to emphasize that "immunities that are valid asagainst the federal government by force of the specificpledges of particular amendments have been found tobe implicit in the concept of ordered liberty, andthus, through the Fourteenth Amendment, become validas against the states" and that guarantees "in theirorigin . . . effective against the federal government'alone" had by prior cases "been taken over from theearlier articles of the federal bill of rights and broughtwithin the Fourteenth Amendment by a process ofabsorption." 302 U. S., at 324-325, 326.

We accept Betts v. Brady's assumption, based as it wason our prior cases, that a provision of the Bill of Rightswhich is "fundamental and essential to a fait trial" ismade obligatory upon the States by the FourteenthAmendment. We think the Court in Betts was wrong,however, in concluding that the Sixth Amendment's guar-antee of counsel is not one of these fundamental rights.Ten years before Betts v. Brady, this Court, after fullconsideration of all the historical data examined in Betts,had unequivocally declared that "the right to the aid of

1 E. g., Chicago, B. & Q. R. Co. v. Chicago, 166 U. S. 226, 235-241(1897) ; Smyth v. Ames, 169 U. S. 466, 522-526 (1898).6 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).

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



counsel is of this fundamental character." Powell v. Ala-bama, 287 U. S. 45, 68 (1932). While the Court at theclose of its Powell opinion did by its language, as thisCourt frequently does, limit its holding to the particularfacts and circumstances of that case, its conclusions aboutthe fundamental nature of the right to counsel are unmis-takable. Several years later, in 1936, the Court reem-phasized what it had said about the fundamental natureof the right to counsel in this language:

"We concluded that certain fundamental rights,safeguarded by the first eight amendments againstfederal action, were also safeguarded against stateaction by the due process of law clause of the Four-

'teenth Amendment, and among them the fundamen-kal right of the accused to the aid of counsel in acriminal prosecution.". Grosjean v. American PressCo., 297 U. S. 233, 243-244 (1936).

And again in 1938 this Court said:

"[The assistance of counsel] is one of the safe-guards of the Sixth Amendment deemed necessary toinsure fundamental human rights of life and lib-erty. . ,. The Sixth Amendment stands as a con-stant admonition that if the constitutional safeguardsit provides be lost, justice will not 'still be done.'"Johnson v. Zerbst, 304 U. S. 458, 462 (1938). Tothe 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 thisCourt, it is not surprising that the Betts Court, whenfaced with the contention that "one charged with crime,who is unable to obtain counsel, must be furnished coun-sel by the State," conceded that " [e] xpressions in the opin-ions 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,

OCTOBER TERM, 1962.


essential to a fair trial"-the Court in Betts v. Brady madean abrupt break with its own well-considered precedents.In returning, to these old precedents, sounder we believethan the new, we but restore constitutional principlesestablished to achieve a fair system of justice. Not onlythese precedents but also reason and reflection requireus to recognize that in our adversary system of criminaljustice, any person haled into court, who is too poor tohire a lawyer, cannot be assured a fair trial unless coun-sel is provided for him. This seems to us to be anobvious truth. Governments, both state and federal,quite properly spend vast sums of money to establishmachinery to try defendants accused of crime. Lawyersto prosecute are everywhere deemed essential to protectthe 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 prepareand present their defenses. That government hireslawyers to prosecute and defendants who have the moneyhire lawyers to defend are the strongest indications ofthe widespread belief that lawyers in criminal courts arenecessities, not luxuries. The right of one charged withcrime to counsel may not be deemed fundamental andessential to fair trials in some countries, but it is in ours.From the very beginning, our state and national consti-tutions and laws have laid great emphasis on proceduraland substantive safeguards designed to assure fair trialsbefore impartial tribunals in which every defendant standsequal before the law. This noble ideal cannot be realizedif the poor man charged with crime has to face his ac-cusers without a lawyer to assist him. A defendant's needfor a lawyer is nowhere better stated than in the movingwords of Mr. Justice Sutherland in Powell v. Alabama:

"The right to be heard would be, in many cases, oflittle avail if it did not comprehend the right to be


335 Opinion of DOUGLAS, J.

heard by counsel. Even the intelligent and edu-cated layman has small and sometimes no skill in thescience of law. If charged with crime, he is inca-pable, generally, of determining for himself whetherthe indictment is good or bad. He is unfamiliar withthe rules of evidence. Left without the aid of coun-sel he may be put on trial without a proper charge,and convicted upon incompetent evidence, or evi-dence irrelevant to the issue or otherwise inadmis-sible. He lacks both the skill and knowledge ade-quately to prepare his defense, even though he havea perfect one. He requires the guiding hand ofcounsel at every step in the proceedings against him.Without it, though he be not guilty, he faces the dan-ger of conviction because he does not know how toestablish his innocence." 287 U. S., at 68-69.

The Court in Betts v. Brady departed from the soundwisdom upon which the Court's holding in Powell v. Ala-baha rested. Florida, supported by two other States, hasasked that Betts v. Brady be left intact. Twenty-twoStates, as friends of the Court, argue that Betts was "ananachronism when handed down" and that it should nowbe overruled. We agree.

The judgment is reversed and the cause is remanded tothe Supreme Court of Florida for further action notinconsistent with this opinion.

Reversed.

MR. JUSTICE DOUGLAS.

While I join the opinion of the Court, a brief historicalr6sum6 of the relation between the Bill of Rights and thefirst section of the Fourteenth Amendment seems perti-nent. Since the adoption of that Amendment, ten Jus-tices have felt that it protects from infringement by theStates the privileges, protections, and safeguards grantedby the-Bill of Rights.

OCTOBER TERM, .1962.

Opinion of DOUGLAS, J. 372 U. S.

Justice Field, the first Justice Harlan, and probablyJustice Brewer, took that position in O'Neil v. Vermont,144 U. S. 323, 362-363, 370-371, as did Justices BLACK,

DOUGLAS, Murphy and Rutledge in Adamson v. California,332 U. S. 46, 71-72, 124. And see Poe v. Ullman, 367U. S. 497, 515-522 (dissenting opinion). That viewwas also expressed by Justices Bradley and Swayne in theSlaughter-House Cases, 16 Wall. 36, 118-119, 122, andseemingly was accepted by Justice Clifford when he dis-sented with Justice Field in Walker v. Sauvinet, 92 U. S.90, 92.1 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 dotolay does not foreclose the matter.

My Brother HARLAN is of the view that a guarantee ofthe Bill of Rights that is made applicable to the Statesby reason of the Fourteenth Amendment is a lesser ver-sion of that same guarantee as applied to the FederalGovernment.' Mr. Justice Jackson shared that view.'

'Justices Bradley, Swayne and Field emphasized that the first eightAmendments granted citizens of the United States certain privilegesand immunities that were protected from abridgment by the Statesby the Fourteenth Amendment. See Slaughter-House Cases, supra,at 118-119; O'Neil v. Vermont, supra, at 363. Justices Harlan andBrewer 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. NewJersey, 211 U. S. 78, 117, Justice Harlan's position was made clear:

"In my judgment, immunity from self-incrimination is protectedagainst hostile state action, not only by ... [the Privileges andImmunities Clause], but [also] by . . . [the Due Process Clause]."

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

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

3Beauharnais v. Illinois, 343 U. S. 250, 288. Cf. the opinions ofJustices Holmes and Brandeis in Gitlow v. New York, 268 U. 5. 652,672, and Whitney v. California, 274 U. S. 357, 372.


335 CLARK, J., concurring in result.

But that view has not prevailed ' and rights protectedagainst state invasion by the Due Process Clause of theFourteenth Amendment are not watered-down versionAof what the Bill of Rights guarantees.

MR. JUSTICE CLARK, concurring in the result.

In Bute v. Illinois, 333 U. S. 640 (1948), this Courtfound no special circumstances requiring the appointmentof counsel but stated that "if these charges had been capi-tal charges, the court would have been required, both bythe state statute and the decisions of this Court interpret-ing the Fourteenth Amendment, to take some such steps."Id., at 674. Prior to that case I find no language in anycases in this Court indicating that appointment of coun-sel in all capital cases was required by the FourteenthAmendment.' At the next Term of the Court Mr. JusticeReed revealed that the Court was divided as to noncapitalcases but that "the due process clause. .. requires counselfor all persons charged with serious crimes .... ." Uvegesv. Pennsylvania, 335 U. S. 437, 441- (1948). Finally, inHamilton v. Alabama, 368 U. S. 52 (1961), we said that"[w]hen one pleads to a capital charge without benefit ofcounsel, we do not stop to determine whether prejudiceresulted." Id., at 55.

4 The cases are collected by MR. JUSTICE BLACK in Speiser v. Ran-dall, 357 U. S. 513, 530. And see, Eaton v. Price, 364 U. S. 263,274-276.

1 It might, however, be said that there is such an implication inAvery v. Alabama, 308 U. S. 444 (1940), a capital case in whichcounsel had been appointed but in which the petitioner claimed adenial 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 ofasssistance of counsel would have required reversal of his convic-tion." Id., at 445. No "special circumstances" were recited by theCourt, but in citing Powell v. Alabama, 287 U. S. 45 (1932), asauthority for its dictum it appears that the Court did not rely solelyon the capital nature of the offense.

OCTOBER TERM, 1962.

CLARK, J., concurring in result. 372 U. S.

That the Sixth Amendment requires appointment ofcounsel in "all criminal prosecutions" is clear, both fromthe language of the Amendment and from this Court'sinterpretation. See Johnson v. Zerbst, 304 U. S. 458(1938). It is equally clear from the above cases, all de-cided after Betts v. Brady, 316 U. S. 455 (1942), that theFourteenth Amendment requires such appointment in allprosecutions for capital crimes. The Court's decisiontoday, then, does no more than erase a distinction whichhas no basis in logic and an increasingly eroded basis inauthority. In Kinsella v. United States ex rel. Singleton,361 U. S. 234 (1960), we specifically rejected any con-stitutional distinction between capital and noncapitaloffenses as regards congressional power to provide forcourt-martial trials of civilian dependents of armed forcespersonnel. Having previously held that civilian depend-ents could not constitutionally be deprived of the protec-tions of Article III and the Fifth and Sixth Amendmentsin capital cases, Reid v. Covert., 354 U. S. 1 (1957), we heldthat the same result must follow in noncapital cases.Indeed, our opinion there foreshadowed the decision to-day,2 as we noted that:

"Obviously Fourteenth Amendment cases dealingwith state action have no application here, but if

2 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. 510(1961). In Griffin, a noncapital case, we held that the petitioner'sconstitutional rights were violated by the State's procedure, whichprovided free transcripts for indigent defendants only in capital cases.In Ferguson we struck down a state practice denying the appellantthe effective assistance of counsel, cautioning that "[o]ur decisiondoes not turn on the facts that the appellant was tried for a capitaloffense and was represented by employed counsel. The command ofthe Fourteenth Amendment also applies in the case of an accusedtried for a noncapital offense, or represented by appointed counsel."365 U. S., at 596.


335 HARLAN, J., concurring.

they did, we believe that to deprive civilian depend-ents of the safeguards of a jury trial here...would be as invalid under those cases as it would bein cases of a capital nature." 361 U. S., at 246-247.

I must conclude here, as in Kinsella, supra, that theConstitution makes no distinction between capital and

- noncapital cases. The Fourteenth Amendment requiresdue process of law for the deprival of "liberty" just as fordeprival of "life," and there cannot constitutionally be adifference in the quality of the process based merely upona supposed difference in the sanction involved. How canthe Fourteenth Amendment tolerate a procedure which itcondemns in capital cases on the ground that deprival ofliberty may be less onerous than deprival of life-a valuejudgment not universally accepted '-or that only the lat-ter deprival is irrevocable? I can find no acceptablerationalization for such a result, and I therefore concur inbhe judgment of the Court.

MR. JUSTICE HARLAN, concurring.

I agree that Betts v. Brady should be overruled, butconsider it entitled to a more respectful burial than hasbeen accorded, at least on the part of those of us whowere not on the Court when that case was decided.

I cannot subscribe to the view that Betts v. Bradyrepresented "an abrupt break with its own well-consid-ered precedents." Ante, p. 344. In 1932, in Powell v.Alabama, 287 U. S. 45, a capital case, this Court declaredthat under the particular facts there presented-"theignorance and illiteracy of the defendants, their youth,the circumstances of public hostility ...and above allthat they stood in deadly peril of their lives" (287 U. S.,at 71)-the state court had a duty to assign counsel for

3 See, e. g., Barzun, In Favor of Capital Punishment; 31 AmericanScholar 181, 188-189 (1962).

350 OCTOBER TERM, 1962.

HARLAN, J., concurring. 372 U. S.

the trial as a necessary requisite of due process of law. Itis evident that these limiting facts were not added to theopinion as an afterthought; they were repeatedly empha-sized, see 287 U. S., at 52, 57-58, 71, and were clearlyregarded 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- exist-ence of special circumstances in noncapital as well ascapital trials, while at the same time insisting that suchcircumstances be shown in order to establish a denial ofdue process. The right to appointed counsel had beenrecognized as being considerably broader in federal prose-cutions, see Johnson v. Zerbst, 304 U. S. 458, but to haveimposed these requirements on the States would indeedhave been "an abrupt break" with the almost immediatepast. The declaration that the right to appointed counselin state prosecutions, as established in Powell v. Ala-bama, was not limited to capital cases was in truth not adeparture from, but an extension of, existing precedent.

The principles declared in Powell and in Betts, however,have had a troubled journey throughout the years thathave followed first the one case and then the other. Evenby the time of the Betts decision, dictum in at least one ofthe Court's opinions had indicated that there was an abso-lute right to the services of counsel in the trial of statecapital cases.1 Such dicta continued to appear in subse-quent decisions,' and any lingering doubts were finallyeliminated by the holding of Hamilton v. Alabama, 368U. S. 52.

In noncapital cases, the "special circumstances" rulehas continued to exist in form while its substance hasbeen substantially and steadily eroded. In the firstdecade after Betts, there were cases in which the Court

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

2 E. g., Bute v. Illinois, 333 U. S. 640, 674; Uveges v. Pennsylvania,

335 U. S. 437, 441.


335 HARLAN, J., concurring.

found special circumstances to be lacking, but usually bya sharply divided vote.3 However, no such decision hasbeen cited to us, and I have found none, after Quicksall v.Michigan, 339 U. S. 660, decided in 1950. At the sametij.,p, there have been not a few cases in which special cir-cumstances were found in little or nothing more than the"complexity". of the legal questions presented, althoughthose questions were often of only routine difficulty.4

The Court has come to recognize, in other words, that themere existence of a serious criminal charge constitutedin itself special circumstances requiring the servicesL ofcounsel at trial. In truth the Betts v. Brady rule is nolonger a reality.

This evolution, however, appears not to have beenfully recognized by many state courts, in this instancecharged with the front-line responsibility for the enforce-ment of constitutional rights.5 To continue a iule whichis honored by this Court only with lip service is not ahealthy thing and in the long run will do disservice tothe federal system.

The special circumstances rule has been formally aban--doned in capital cases, and the time has now come whenit should be similarly abandoned in -noncapital cases,at least as to offenses which, as the oneinvolved here,carry the possibility of a substantial prison sentence.(Whether the rule should extend to" alt criminal, casesneed not noW be decided.-) This indeed does no morethan to make explicit *something that has long since beenforeshadowed in our decisions.

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

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

5 See, e. g., Commonwealth ex rel. Simon v. Maroney, 405 Pa. 562,176 A. 2d 94 (1961); Shaf.er v. Warden; 211 Md. 635, 126 A. 2d 573(1956); Henderson v. Bannan, 256 F. 2d 363 (C.A. 6th Cir. 1958).

OCTOBER TERM, 1962.

HARLAN, J., concurring. 372 U. S.

In agreeing with the Court that the right to counsel ina case such as this should now be expressly recognized asa fundamental right embraced in the Fourteenth Amend-ment, I. wish to make a further observation. . When wehold a right or immunity, valid against the Federal Gov-ernment, to be "implicit in the concept of ordered lib-erty" ' and thus valid against the States, I do not readour past decisions to suggest that by so holding, we auto-matically carry over an entire body of federal law andapply it in full sweep to the States. Any such conceptwould disregard the frequently wide disparity between thelegitimate interests of the States and of the Federal Gov-ernment, the divergent problems that they face, and thesignificantly different consequences of their actions. Cf.Roth v. United States, 354 U. S. 476, 496-508 (separateopinion of this writer). In what is done today I do notunderstand the Court to depart from the principles laiddown in Palko v. Connecticut, 302 U. S. 319, or to embracethe concept that the Fourteenth Amendment "incorpo-rates" the Sixth Amendment as such.

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

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

Documents

GIDEON v. WAINWRIGHT. WAINWRIGHT, CORRECTIONS ......GIDEON v. WAINWRIGHT. 335 Opinion of the Court. Florida law. Appearing in court without funds and with-out a lawyer, petitioner