What¿s Wrong with Gideon

Gideon v Wainwright' is an icon of criminal procedure. The case, decided in 1963, established the constitutional right of indigent felony defendants to have counsel appointed to represent them in state criminal courts.2 To many, the Court's conclusion in Gideon was a long-awaited and obvious one. Indeed, Robert F Kennedy, then Attorney General, speaking at The Law School on Law Day a year after Gideon was decided, wondered whether lawyers even needed a constitutional determination to spell out appropriate professional responsibilities for representing indigent defendants.3 Given its status, then, one might find it somewhat surprising that I take issue with the case. I have set this task for myself, but I must be clear about what I perceive to be the problem with Gideon. I have no quarrel with Gideon's conclusion establishing the constitutional right of indigent defendants to appointed representation. That principle is, of course, why Gideon is famous. What I find problematic about Gideon is the basis of the Court's opinion. Gideon, I believe, represents a break with a kind of constitutional decisionmaking in the criminal procedure areaa break that has negative consequences. Specifically, Gideon marks the beginning of a shift in the Court's articulation of the requirements of fair trials away from notions of fundamental fairness in the Due Process Clause and toward reference to the Bill of Rights via the process of incorporation. The effect of this shift is subtle but significant. Throughout the early due process cases comprising the infancy of constitutional criminal procedure, the Court demonstrated not only an interest in securing accurate determinations of guilt for state criminal defendants, but also an obvious concern about the relationship between the structure of