Gideon is important . . . just not for the reason you think!
Pleading the Sixth: On March 18, our country will celebrate the 62nd anniversary of Gideon v. Wainwright, known as the landmark case for guaranteeing the right to a lawyer. But there is a real danger in assuming that no one in America had the right to a lawyer until 1963 – it can be easily dismissed as the result of just another liberal 1960s Warren Court decision of federal imposition over states. The truth is 40 states and two U.S. territories already guaranteed the right to a lawyer in criminal cases by the time Gideon was decided. 6AC gives you the real history!
The most famous line in Gideon pays tribute to a core value of the United States government that sets itself apart from monarchies, theocracies, and dictatorships: “[t]he 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.” But the Court makes a remarkable, yet less known, statement in the next sentence: “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.” What does that mean – from the very beginning?
It turns out that 40 states and two U.S. territories guaranteed the right to lawyer in criminal cases by the time Gideon was decided. Seen in this light, Gideon is the summation of all the hard work state actors accomplished in making the right to counsel a cornerstone of American justice. Indeed, much of 6AC’s success in helping states improve their public defense systems is making known to state policymakers their hidden local histories, often inspiring them to pursue reform from a sense of state pride.
On March 18, 2025, 6AC will publish a timeline of the “History of the Sixth” that traces the history in each state and territory and denotes important events, such as the creation of public defender offices and commissions. Here, we focus solely on the history of the three pre-Gideon eras.
Pre-6th Amendment Era (1215-1791)
In 1215, King John of England signed the Magna Carta establishing a government of laws, which prohibited a lawyer in felonies but allowed one in misdemeanors. The U.S. Supreme Court points to this in Powell v. Alabama: “Originally, in England, a person charged with treason or felony was denied the aid of counsel, except in respect of legal questions which the accused himself might suggest. At the same time, parties in civil cases and persons accused of misdemeanors were entitled to the full assistance of counsel.”
In the 1600s, droves of European people fled religious persecution and began arriving on the shores of America, feeling suspicious of tyranny, concentrated power in the hands of a few, and the justice system of their countries of origin. A person’s liberty is self-evident, they believed, so a high threshold must be met before allowing government to strip away that liberty. One way to depart from these old tyrannical habits was to allow a lawyer to represent a person charged with a felony. Rhode Island was the first to do so in the 1660s:
“Whereas it doth appeare that any person…may on good grounds, or through mallice and envie be indicted and accused for matters criminal, wherein the person that is so [accused] may be innocent, and yett, may not be accomplished with soe much wisdom and knowledge of the law as to plead his own innocencye, &c. Be it therefore inacted…that it shall be accounted and owned from henceforth…the lawful privilege of any man that is indicted, to procure an attornye to plead any poynt of law that may make for the clearing of his innocencye.” II Rhode Island Colonial Records 1664-77.
The fledgling American colonies did not stop there, soon requiring lawyers in serious felonies well before the American Revolution. For example, Pennsylvania statutes in 1718 affirmatively required the appointment of “learned counsel” to the accused in capital cases (most serious felonies at that time, such as horse thievery, were capital offenses). A similar statutory right to counsel in capital cases was the law of the land in Delaware (1718), South Carolina (1731), and Virginia (1734). Moreover, as early as 1750, the custom in Connecticut and New Jersey was to appoint counsel if the accused simply requested one.
After the American Revolution – but before the U.S. Constitution, Bill of Rights, and the Sixth Amendment were ratified – the developing Federal Courts required the court to affirmatively appoint no more than two attorneys “immediately’ to indigent defendants charged with a capital crime in the 1790’s Judiciary Act.
This piece of history is critical to understanding the next historical era. Since most states outside of the 13 original colonies were subsequently carved out of federal territories, the affirmative right to counsel pre-dates statehood in many instances.
6th Amendment – 14th Amendment Era (1792-1868)
In 1803, the land mass of the United States nearly doubled when the country paid France $15 million for the territory of Louisiana, known as the Louisiana Purchase. The U.S. Congress renamed it the “Missouri Territory” when Louisiana became an official state in 1812, and six years later in 1818, the Missouri Territory enacted a law requiring the appointment of counsel in all felonies (capital and non-capital). This means that the right to counsel was the law of the land in what would eventually become the states of Arkansas, Colorado (in part), Iowa, Kansas, Minnesota (in part), Missouri, Montana (in part), Nebraska, New Mexico (in part), North Dakota, South Dakota, Oklahoma, and Wyoming.
This was a period of rapid growth of new states and territories, and without exception, each new state and territory further cemented an affirmative right to counsel. Emerging territories east of the Mississippi River enacted the right to counsel in either capital or felony cases, regardless of whether they fell above or below the Mason-Dixon line. In 1807, for example, the Mississippi Territory – which included land that would become the states of Alabama and Mississippi – enacted a statute requiring the “immediate” appointment of up to two attorneys to any capital defendant requesting assistance of counsel. In 1838, two years after becoming a state, the Arkansas Legislature mirrored the laws of Michigan Territory by enacting a sweeping right to counsel law:
“If any person about to be arraigned upon an indictment for a felony, be without counsel to conduct his defence [sic], and shall be unable to employ any, it shall be the duty of the court to assign him counsel, at his request, not exceeding two, who shall have free access to the prisoner at all reasonable hours.” Ark. Rev. Stat. 1837, ch. 45, s 112 (approved Feb. 13, 1838).
And it was not just the legislative and executive branches doing the heavy lifting. For example, in 1854, the Indiana Supreme Court in Webb v. Baird stated:
“It is not to be thought of, in a civilized community, for a moment, that any citizen put in jeopardy of life or liberty, should be debarred of counsel because he was too poor to employ such aid. No Court could be respected, or respect itself, to sit and hear such a trial. The defense of the poor, in such cases, is a duty resting somewhere, which will be at once conceded as essential to the accused, to the Court, and to the public.”
That same year, the Georgia Supreme Court stated in dicta in Jim v. State that the appointment of counsel is required in all cases:
“It is true, that, in our State, no man, white or black, bond or free, can be tried without the assistance of counsel, as the humane provisions of our law require the appointment of counsel by the Court, for every one accused with crime, who is unable to procure counsel for himself; and in this way, this prisoner found able and zealous assistance at Court.”
14th Amendment – Gideon v. Wainwright Era (1869-1963)
In the aftermath of the Civil War, the 14th Amendment was added to the U.S. Constitution to guarantee equal protection of the laws and due process of the law to all people in the United States. In the early stages of this era, the right to counsel took center stage in the Wild West, where no one trusted anyone, land wars and conflict were rife, lawlessness was pervasive, and everyone wanted lawyers when their liberty was threatened for being charged with crimes. The Wild West is an important part of this history because it is when states and territories started requiring lawyers in misdemeanor cases, and required those lawyers be paid for their services.
At the dawn of this era, 1863 Dakota Territory laws (encompassing the lands of North Dakota, South Dakota, Montana, Wyoming and parts of Nebraska) required courts appoint counsel to criminal defendants who appeared without counsel at arraignment (making no distinction between felonies and misdemeanors). This right was clarified in 1874 requiring counsel to a defendant who was “unable to employ counsel,” and in 1879, Dakota Territory counties were directed to pay “reasonable and just compensation” to appointed counsel for their services.
Nevada was the first state to require counsel, and payment to counsel, in all case types. The story of how this occurred is told in 6AC’s report, Reclaiming Justice, retelling the story of how accused stagecoach robber, Shepherd L. Wixom, fought for the right to have an attorney. The Nevada Supreme Court identified how engrained the affirmative right to counsel was in America at the time:
“In many of the states, perhaps in most of them, the judges of the courts of record are required by statute to assign counsel to poor defendants, and in all of the states it is the common, perhaps the universal practice to do so. Certainly, it is a humane and commendable practice to do so, and a statute (Laws of 1875, 142) passed since the trial of this petitioner, has made provision for compensation of attorneys appointed to defend in such cases. Probably since this statute, if not before, a failure to assign professional counsel for a poor defendant would be deemed a fatal error on appeal.” In re Wixom, 12 Nev. 219, 224 (1877).
This era is also when the country begins seeing the creation of professional public defender offices. For example, in 1914, the Los Angeles County Public Defender is established as the first government-staffed public defender office in the country. The next year, Portland, Oregon establishes the first municipal public defender office. In 1917, Shelby County (Memphis), Tennessee, establishes a government-staffed public defender office – the second county public defender office in the nation and the first public defender office east of the Mississippi.
As the United States continued to expand, the new territories continued to make the right to an attorney a core tenet of American justice. In 1919, the Hawaiian Territory required counsel in felony cases. Similar laws requiring the right to counsel were enacted in Puerto Rico (1935) and U.S. Virgin Islands (1954). And although not required, laws allowing the right to counsel were enacted in Guam (1950) and American Samoa (1960).
So, as the U.S. Supreme Court was gearing up to hear Gideon v. Wainwright, 40 states and two U.S. Territories already had an affirmative right to counsel in either statute or caselaw. Another five states either provided the right to counsel in practice or had a limited right to counsel.
So, what did Gideon accomplish?
Most states already firmly believed the “obvious truth” that anyone accused of a crime “cannot be assured a fair trial unless counsel is provided” to them. What Gideon accomplished was that it determined that providing the Sixth Amendment right to counsel is a state obligation under the due process clause of the Fourteenth Amendment. When a state chooses to delegate this constitutional responsibility to local governments, the state must guarantee that those local governments can, and do, provide effective representation. A state cannot do so if it does not have a state entity or state commission tasked with ensuring that the right to counsel is met.
Rhode Island was the first and only state to establish a state public defender system before Gideon. After Gideon, states immediately moved to a state approach to meet the constitutional mandate, including: Delaware (1964), Minnesota (1965), New Jersey (1967), Alaska (1969), Colorado (1969), Hawai’i (1970), Maryland (1971), Kentucky (1972), Missouri (1972), New Hampshire (1972) and Vermont (1972).
Today, the Sixth Amendment right to counsel means that every indigent person facing jail time must be provided with the early appointment of a qualified and trained attorney, who has sufficient time and resources to provide effective representation under independent supervision, at all critical stages of cases. Although there is still much work to do to meet this mandate, it is important to understand its history to continue making progress.
