The Coming War on Gideon

For more than 60 years, Gideon v. Wainwright has been the north star of America’s criminal legal system. By unquestionably requiring appointed counsel for people who cannot afford a lawyer, this landmark ruling protects the most vulnerable against the abuses of the most powerful. But Gideon is now vulnerable to a radical betrayal of core American values.

Prominent judges are attacking Gideon

In 2019, in Garza v. Idaho, Supreme Court Justices Clarence Thomas and Neil Gorsuch authored a dissent that revealed a disconcerting willingness to reconsider decades of fundamental due process safeguards. Criticizing Gideon as a source of “expansive rights,” they directly attacked the right to effective assistance of counsel, first established in Strickland v. Washington. The dissenters further claimed that the Supreme Court has only “dubious authority” to enforce the right to counsel when it “impos[es] additional costs on the taxpayers and the Judiciary.” The implication? Expensive rights are dispensable rights.

This attack on Gideon has crept deeper into the federal bench. In a Heritage Foundation essay, Judge Lawrence VanDyke, (United States Court of Appeals, 9th Circuit), wrote that criticism of Gideon “seems warranted.” VanDyke pointedly posed “open questions” about the right to counsel before formal charging. VanDyke’s judicial role constrains him from saying more. But his remarks invite fringe litigators and legislators to curb Gideon’s reach. 

Attacks on Gideon are spreading

Calls to dismantle Gideon are growing louder. In 2023, conservative pundit Ben Shapiro openly rejected Gideon’s core principles. “As far as Gideon v. Wainwright…the notion that the public has to pay for counsel is obviously not correct,” Shapiro said. In other words, “you have a right to defend yourself,” but only if you can afford to hire a lawyer to represent you.

Just this year 14 attorneys general authored an amicus brief in a case about the right to confer with counsel at trial. Alarmingly, they used some of their limited briefing space to attack foundational right-to-counsel decisions:

“In the years since ratification, the Court has expanded the defendant's right to counsel to include broader protections in “ever-growing right to-counsel precedents” interpreting the Sixth Amendment (Garza v. Idaho). Those include the right to appointment of free counsel, Gideon, the right to a certain quality of counsel (Strickland v. Washington), and the right to “effective” counsel anytime “a plea bargain has been offered,” (Lafler v. Cooper).”

Lawyers must understand this as a clarion call: the attorneys general are inviting the Court to begin dismantling the hallmark constitutional doctrine of our criminal legal system.

At the state and federal level, public defenders face overwhelming caseloads and dire attorney shortages, which produce ineffective representation and waitlists for counsel. These crises create two risks to Gideon doctrine.

First, they give rise to new right-to-counsel litigations. Each such litigation creates another opportunity for a court to retreat from Gideon’s protections. As these litigations escalate, prosecutors and courts will propose that we “cure” the public defense shortage by eliminating or limiting the public defense right. 

For now, the Arizona Supreme Court has withdrawn the proposal. But other states are considering allowing non-lawyers to practice criminal law. And Arizona Chief Justice Ann Scott Timmer says her court is willing to revisit the question. 

It’s essential that lawyers and judges reject any retreat from Gideon’s promise of a competent and zealous defense for every arrested person.