Monday, August 13, 2012
This essay, based on an address delivered at the Sixth Annual Texas Tech Criminal Law Symposium, explores the paradox of Gideon v. Wainwright and suggests some new directions for improving defense of the indigent against criminal charges. The paradox of Gideon lies in the widespread agreement (1) that Gideon was a great decision; (2) that from a formal perspective, the Sixth Amendment’s text and history provide scant support for Gideon’s adoption of the Zerbst rule requiring appointment for all indigent defendants in felony cases; and (3) that from a functional perspective, Gideon has not led to effective representation for all defendants. If almost no one thinks Gideon was required by text and history, and if almost no one thinks Gideon has delivered effective representation, why does almost everyone love Gideon?
Reforms are put forward for discussion. These include (1) exempting some self-representing felony defendants, like their misdemeanor counterparts, from sentences of incarceration if convicted; (2) giving counsel for indigent defendants discretion to decline unpromising appeals; (3) permitting lay representation of juvenile and misdemeanor defendants; and (4) recognizing indigent defense as a separate career track from the general practice of law.