Some states, by statute or practice, appointed defense counsel for capital or even noncapital felonies, though these were often unpaid: New York started doing so by 1810 and California began in 1872. But Massachusetts and Florida, for instance, did not appoint lawyers for noncapital felonies until the second half of the twentieth century.6
Cities then started creating public defender offices as either government agencies or nominally private charities, beginning with Los Angeles in 1914. Advocates sympathized with poor defendants and sought to end their exploitation by shyster lawyers. Some early boosters favored public defenders as aggressive advocates for defendants, while others hoped they would be almost the mirror image of prosecutors: “quasi-judicial officers [who] would owe a duty not only to their clients, but also to the state.” New York lawyer Mayer Goldman even suggested that public defenders would not “seek to defeat justice by securing the acquittal of a guilty defendant,” but would instead “work harmoniously” with public prosecutors to bring out the truth, protecting the innocent from conviction and the guilty from excessive punishment. These conflicting visions reflected ambivalence about whether adversarial combat against the prosecution or a more neutral, inquisitorial system would better serve truth and justice.7 In the end, public defenders were built and run as traditional, adversarial representatives of defendants’ interests, but these competing sales pitches reflect public qualms about criminal defense that persist to this day.
Once prosecutors and defense lawyers ran many criminal cases, courts developed rules of evidence and procedure to regulate trials, making them longer and more complex. (In the eighteenth century, most trials lasted no more than a few hours; in the nineteenth, they could run for days.) Prosecutors and defense counsel also developed plea bargaining. As repeat players, they could forecast likely outcomes after trial, develop going rates, and build the trust needed to strike bargains and short-circuit these new, elaborate procedures. In other words, increasing complexity begat professionalization, which begat more complexity, which in turn begat shortcuts such as plea bargaining to circumvent costly, cumbersome procedures.
Powell v. Alabama Redux
By the twentieth century, trials had grown long and complex. Defendants could no longer just stand up and argue with victims and witnesses about whodunit. Felony jury trials required elaborate pretrial investigations, witness interviews, jury selection, opening statements, direct- and cross-examination, evidentiary objections, closing arguments, jury instructions, sentencing, and post-trial motions and appeals. Yet many defendants were too poor to hire their own lawyers, and these defendants were often the ones who needed help the most. Many parts of America (especially rural areas) did not have public defenders, and even public defender offices could not represent everyone.
Well into the twentieth century, the U.S. Supreme Court avoided interfering with state criminal justice systems. But the racism and legalized lynchings of the Jim Crow–era South prodded the Court to act. In Powell v. Alabama, the U.S. Supreme Court reversed the defendants’ convictions, holding that Alabama had denied them their right to hire counsel of their choice. Central to the Court’s reasoning was the need for legal expertise to navigate complex trial procedures. Without counsel, the due process right to be heard would mean little. “Even the intelligent and educated layman has small and sometimes no skill in the science of law,” such as the technical rules of pleading and evidence. Without “the guiding hand of counsel at every step,” innocent men risk being convicted based on incompetent, irrelevant, or inadmissible evidence, even if they have strong defenses. That was especially true of the young, illiterate Scottsboro Boys, who were surrounded by a bloodthirsty mob, cut off from their friends and families, and on trial for their lives. Though the issue had been framed as giving defendants time to hire counsel, the Court threw in an aside that opened the door to free lawyers, at least in these extreme circumstances: Courts must appoint lawyers for those who cannot hire them, at least for “incapable” defendants in capital cases.8
Powell was an important first step toward protecting poor criminal defendants. Yet its reasoning and focus raised more questions than they answered. For starters, the Scottsboro Boys did have lawyers, and they never sought court-appointed lawyers free of charge. As the dissenters noted, the Court’s language about appointed counsel was dictum—that is, irrelevant to deciding this case. The Court should not have addressed the right to counsel, which covers whether a defendant has a lawyer at all. The real issue in Powell was what counsel must do to be effective. But the Court in Powell all but avoided that question, as it would continue to do later. The right-to-counsel cases make much of the presence of counsel, but little about how to tell if that counsel was effective.
More generally, the real problems in Powell were not so much the defense lawyers as the rush from the arrest to the trial, the exclusion of blacks from the jury, the domination by a lynch mob, and the biased judicial interference with cross-examining the victims. But tackling Southern racism head-on would have been too explosive, shaking the foundations of Jim Crow criminal justice. In that respect, the right-to-counsel ruling was a dodge, and the Court largely avoided acknowledging the strong racial biases that had tainted the trial. Nevertheless, it planted the seed of a constitutional right to appointed counsel (albeit a small and limited one) that would flower in coming decades.
Even Powell itself is not an unmitigated triumph. The Supreme Court overturned the Scottsboro verdicts one more time in 1935 in Patterson v. Alabama and Norris v. Alabama, because Alabama systematically excluded blacks from those juries. But Alabama kept retrying the cases, and eventually the Supreme Court let convictions in five different cases stand.9
Beyond Capital Cases: From Betts to Gideon
Not long after Powell, the Court clarified that federal criminal defendants had a right to appointed counsel, as did capital (that is, death-penalty) defendants in state court. Criminal cases are full of “intricate, complex, and mysterious” legal rules and prosecuted “by experienced and learned counsel,” so federal defendants needed lawyers to level the playing field. For three decades, however, the Court refused to extend this right to state criminal trials. In Betts v. Brady, the Court held that a poor defendant has no fundamental right to appointed counsel in all cases. Where there are special circumstances that make a defendant unable to try his own case, states may have to appoint counsel on occasion to satisfy due process of law. But Betts was a mature man of ordinary intelligence with past experience in criminal justice, and he chose a bench (non-jury) trial, which made the procedures more informal and flexible. He had no special need for a lawyer to navigate the procedures.10
In later decades, the Court proved increasingly willing to find special circumstances requiring appointed counsel even in routine cases. Reviewing matters case by case in hindsight, the Court could not provide clear guidance to lower courts and legislatures on which cases needed counsel. As Justice Harlan eventually put it, “[t]he Court has come to recognize, in other words, that the mere existence of a serious criminal charge constituted in itself special circumstances requiring the services of counsel at trial.” Thus, in 1963 the Court overruled Betts in Gideon v. Wainwright.11
Clarence Gideon was a sometime drifter, gambler, and small-time thief. In 1961, someone broke into a pool hall in Panama City, Florida, and stole coins from the cigarette machine and juke box, as well as some beer and wine. Witness Henry Cook identified Gideon as the burglar, though Cook had a criminal record and may have committed the crime himself. A police officer arrested Gideon with pockets full of change, which he later testified he had won by gambling. Gideon’s request for appointed counsel was denied, and he was convicted of breaking and entering with intent to commit a misdemeanor.
The Supreme Court unanimously reversed Gideon’s conviction, overruling the special-circumstances requirement to trigger appointment of counsel. Writing for the Court, Justice Black stressed that the Sixth Amendment’s right to appointed counsel is fundamental, so states must follow it to ensure due process of law. “[I]n our adversary system of criminal justice,” poor criminal defendants need appointed counsel to ensure fair trials. “Governments