Gideon v. Wainwright and the Right to Counsel in Immigration Removal Cases: An Immigration Gideon?

Gideon v. Wainwright and the Right to Counsel in Immigration Removal Cases: An Immigration Gideon? by Kevin R. Johnson, University of California, Davis - School of Law, Yale Law Journal, Forthcoming (part of symposium on the 50th anniversary of Gideon v. Wainwright)

Abstract: Fifty years ago, the Supreme Court decided Gideon v. Wainwright, the landmark case that constitutionally guaranteed counsel to defendants in criminal cases in the United States. Together with the Court’s decision three years later in Miranda v. Arizona, the decision radically transformed the American criminal justice system, both in the courtrooms and in the public eye. Few would disagree that the guarantee of a lawyer in criminal prosecutions can make a world of difference to the ultimate outcome of a case. It surely did for Clarence Gideon, who was convicted of burglary without an attorney but, in a new trial, was acquitted of the charges with the assistance of counsel. Besides affecting the outcomes of individual cases, the guarantee of counsel renders the results of a criminal justice system more legitimate and trustworthy to ordinary Americans. The contributions to this symposium no doubt will highlight the many legacies – legal and otherwise – of Gideon v. Wainwright. In thinking about the important impacts of the decision, it is critical to remember that the case involved a criminal defendant; the Court’s decision rested on the Sixth Amendment right to counsel for the accused in criminal prosecutions. As a legal matter, the law sharply demarcates between the many rights available to criminal defendants and the significantly more limited bundle of protections for civil litigants. The rationale for the dichotomous allocation of rights is that the potential loss of liberty justifies significantly greater constitutional protections for the criminal defendant than those available to civil litigants. The all-important criminal/civil distinction is embedded in many of the Bill of Rights, which provide protections to criminal defendants but not civil litigants. As is often the case for dichotomies, the differences between civil and criminal proceedings blur at the margins. There are, for example, civil cases where the stakes are extraordinarily high, so high that they arguably approximate the life and liberty interests implicated by a criminal prosecution. A loss of public benefits or potential eviction from a dwelling, to offer two examples, can have devastating impacts on the lives of people. Importantly, for poor and working Americans, access to the courts with the assistance of a lawyer can make all the difference in the outcome of such important civil proceedings.

Part I of this essay first analyzes the right to counsel in civil cases involving litigation for high stakes to poor and working people. Part II proceeds to study the right to counsel in a particular category of civil cases – immigration removal cases, which implicate life and liberty concerns similar in important respects to those raised by criminal prosecutions.

KJ