Gideon’s Next Frontier: No Detention And No Conviction Without Counsel

The right to counsel, and the right to the appointment of counsel for indigents, must attach in any proceeding at which a criminal conviction may result.

Access to The Champion archive is one of many exclusive member benefits. It’s normally restricted to just NACDL members. However, this content, and others like it, is available to everyone in order to educate the public on why criminal justice reform is a necessity.

The Gideon decision was clearly a remarkable breakthrough, but it is time to move on and look toward the next frontier. This special issue of The Champion and NACDL’s 15-month celebration of Gideon v. Wainwright1 acknowledge a noble U.S. Supreme Court decision. The notion that the same government that seeks to prosecute, condemn, imprison, or even kill an accused person must also provide a competent advocate to defend that person and zealously oppose the prosecution embodies the pinnacle of justice. While we are a long way from achieving the full potential of Gideon, no criticism of the Supreme Court’s failure to order a funding mechanism to ensure the implementation of the mandate should diminish the significance of the constitutional right of the poor to have an attorney in a criminal prosecution.

NACDL rightly celebrates as well the string of decisions that extended the right to encompass most situations where the liberty of an individual is at stake and defined the right as requiring effective representation.2 Just within the past couple of years, the Supreme Court extended the right to counsel to an initial bail determination3 and expanded the right to effective counsel to embrace the ever-increasing critical plea bargaining phase of a criminal prosecution.4 

Unfinished Business

Still, the celebration of rights won is no excuse to avert our eyes from the reality that America’s indigent defense system is deficient. It remains a broken patchwork starved for resources. The defense of the indigent hinges upon the courageous dedication of overburdened public defenders and private assigned counsel who are perennially underresourced and undercompensated. Several of the articles in this issue recognize those heroic efforts and suggest important reforms to reinvigorate the right to counsel and ensure that high-quality representation is the constitutional norm.5 A prior Inside NACDL column enumerated much of the unfinished business that remains to finally fulfill the promise of Gideon.6 And we also noted that the Padilla-Lafler-Frye trilogy of decisions calls into question the increasingly pervasive and pernicious “meet and plead” practices. The routine entry of guilty pleas at first appearance, when counsel has not had an opportunity to fully assess the inherent consequences that flow from the plea, must end.7 

But there is yet another frontier that must be conquered. To some extent it is presaged by these recent decisions, and it was recognized by recent action proposed by NACDL’s Task Force on Pretrial Justice and the subsequent adoption of an official policy by the Board of Directors. NACDL has concluded that Gideon must apply at any point at which liberty is at stake or at which a guilty plea may be entered.8 With respect to the first prong of this principle, it is time to establish once and for all that counsel must be provided promptly whenever a person faces detention. Douglas L. Colbert compellingly makes this case in his article, When the Cheering (for Gideon) Stops, and urges aggressive advocacy for pretrial release.9 NACDL’s advocacy has increasingly addressed the vital role counsel plays at the initial appearance.10 Thus, as an organization, through its official policy and its advocacy, NACDL is leading the effort to secure the right to counsel whenever liberty is at stake.

The Next Frontier

But the second prong of NACDL’s newly adopted policy is the true prize. This is the next - and possibly final - frontier to achieve the promise of Gideon. Every accused person must have the right to consult with a fully informed attorney before entering a guilty plea to any criminal charge.

We now live in the era of “inherent consequences” - the never-ending catalogue of disabilities, debarments, and deprivations that flow from a criminal conviction.11 Commercial exploitation of criminal records, powered by new technologies and the omnipresence of the Internet, has created a permanent underclass of disadvantaged in this country. These consequences flow from criminal convictions irrespective of whether or not a jail sentence is imposed. As the Supreme Court noted in Padilla, addressing immigration consequences, deportation is “an integral part - indeed sometimes the most important part - of the penalty that may be imposed on noncitizen defendants who plead guilty to specified crimes.”12 There is no longer anything that is “collateral” about the disabilities that are the direct consequence of a criminal conviction. They are truly an integral component of most convictions.

Notwithstanding the mind-numbing cascade of consequences, in countless jurisdictions nonjailable criminal offenses permeate the system. In many others, prosecutors or judges take a jail sentence off the table to divest accused individuals of a right to appointed counsel. This allows prosecutors or judges to assure defendants that they need not worry about going to jail. In addition, prosecutors or judges can save the cost of providing counsel or further overburdening indigent defense providers, and they can process their overloaded dockets. For many, the offer - to walk out of the courtroom, not have to return, and not face jail - is irresistible. Too often, however, that decision is made oblivious to the consequences that will flow from the fateful decision to enter a guilty plea.

Increasing evidence indicates that waiver of counsel is contributing to the rate of uncounseled guilty pleas. More than a decade ago, a Bureau of Justice Statistics report noted that 28.3 percent of jail inmates charged with misdemeanors in state courts reported having had no counsel.13 NACDL’s two recent reports on the crisis in misdemeanors estimated a much higher percentage, including a close examination of practices in Florida, which found that 66 percent of defendants appeared at arraignments without counsel.14 Indeed, there is increasing evidence that many courts are structured to procure waiver through a panoply of questionable procedures that induces defendants to enter speedy guilty pleas, often with the lure of immediate release.15 

Simply put, there is a conviction tragedy unfolding in America. Countless thousands annually plead guilty without counsel to a criminal offense that will profoundly impair their futures.16 If it is constitutionally required that effective representation includes accurate advice about those consequences, as Padilla suggests, and if an accused has a right to accurate information about the likely impact of a guilty plea, as Frye and Lafler imply, surely it must follow that counsel must be constitutionally required whenever a person faces consequences from a conviction. How else can individuals have any hope of learning the true consequences that will follow them for the rest of their lives?

Revisiting Flawed Jurisprudence

It is not as though the idea of providing counsel in all criminal proceedings has not been considered by the Supreme Court. When the Court extended the right to counsel to misdemeanor cases in Argersinger, a case in which the defendant had been sentenced to 90 days in jail, it held that, absent an informed waiver, no defendant may be imprisoned without representation by counsel at trial.17 Justice Powell, who agreed with the result, argued for a flexible approach that would provide the right to counsel “in petty cases whenever the assistance of counsel is necessary.”18 Animated by concerns about the economic impact of a universal right to counsel, however, Justice Powell urged a case-by-case approach. While one can see the deficiencies in such an approach, Lewis Powell, who brought enormous practical experience with him to the bench, accurately foresaw developments that must now be a prevalent concern. He recognized that misdemeanor courts were becoming plea mills:

Beyond the problem of trials and appeals is that of the guilty plea, a problem which looms large in misdemeanor cases as well as felony cases. Counsel is needed so that the accused may know precisely what he is doing, so that he is fully aware of the prospect of going to jail or prison, and so he is treated fairly by the prosecution. In addition, the volume of misdemeanor cases, far greater in number than felony prosecutions, may create an obsession for speedy dispositions, regardless of the fairness of the result.19... An inevitable consequence of volume [that large] is the almost total preoccupation in such a court with the movement of cases. The calendar is long, speed often is substituted for care, and casually arranged out-of-court compromise too often is substituted for adjudication.20 

Justice Powell’s foresight did not stop with concerns about assembly line justice. He recognized that jail was only one of many serious consequences that may afflict a convicted defendant:

Serious consequences also may result from convictions not punishable by imprisonment. Stigma may attach to a drunken-driving conviction or a hit-and-run escapade. Losing one’s driver’s license is more serious for some individuals than a brief stay in jail. ... When the deprivation of property rights and interest is of sufficient consequence, denying the assistance of counsel to indigents who are incapable of defending themselves is a denial of due process.21 

Rather than opening the door to broader access to counsel as Powell urged, seven years later the Supreme Court in Scott v. Illinois22circumscribed Argersinger when it held the right to counsel only applies to cases of actual imprisonment rather than in all cases in which a sentence of imprisonment is possible. While Powell again concurred, reiterating his concern that the rule precluded the provision of counsel in cases where the consequences may be more serious than a brief time in jail, Justice Brennan wrote a dissent in which he argued for the right to counsel for any offense in which imprisonment is authorized, irrespective of whether it is imposed. He relied upon the plan language of the Sixth Amendment:

In all prosecutions, the accused shall enjoy the right to have the Assistance of Counsel for his defense. (emphasis in original)

Decades later, now that an integral network of nonincarcerative consequences has overwhelmed the nation,23 it is time to enforce the plain language of the Sixth Amendment. NACDL believes that the Supreme Court jurisprudence that ties the right to counsel to the actual imposition of a jail sentence must be revisited. Indeed, we must go beyond even Justice Brennan’s concept that the right should be provided when a jail sentence is authorized. The determinant factor must be the possibility of conviction. This nation must recognize that the right to counsel, and the corresponding right to the appointment of counsel if one cannot afford to hire counsel, must attach in any proceeding at which a criminal conviction may result.

Early and universal access to counsel is the next frontier in the saga that began when Clarence Earl Gideon penned his pro se petition. Let us resolve to honor the legacy of Gideon by attacking the antiquated notion that ties the right to counsel to the imposition of a jail sentence.


  1. In 2011, NACDL’s Board of Directors resolved to commemorate Gideon’s golden anniversary during the period that will span the date of the signing of the pro se petition (January 1962) with the Supreme Court through the date of the decision (March 1963). Visit BdResolution.
  2. In re Gault, 387 U.S. 1 (1967) (extending the right to counsel to juvenile proceedings); Argersinger v. Hamlin, 407 U.S. 25 (1972) (extending the right to counsel to misdemeanor cases where imprisonment may result); Strickland v. Washington, 466 U.S. 668 (1984) (establishing the right to effective assistance of counsel).
  3. Rothgery v. Gillespie County, Texas, 554 U.S. 191 (2008).
  4. Padilla v. Kentucky, 130 S. Ct. 1473 (2010); Lafler v. Cooper, 566 U.S. ___, No. 10-209, 2012 WL 932019 (March 21, 2012); Missouri v. Frye, 566 U.S. ___, No. 10-444, 2012 WL 932020 (March 21, 2012).
  5. Andrea D. Lyon, The Promise of Effective Assistance of Counsel: Good Enough Isn’t Good Enough, The Champion, June 2012 at 67; Jonathan Rapping, Redefining Success as a Public Defender, The Champion, June 2012 at 30; Joshua L. Dratel, The Significance of Gideon to the Guantánamo Detainees, The Champion, June 2012 at 70.
  6. Norman L. Reimer, After Half a Century, Gideon’s Promise Remains Elusive, The Champion, January/February 2012 at 7.
  7. Norman L. Reimer, Frye and Lafler: Much Ado About What We Do - And What Prosecutors and Judges Should Not Do, The Champion, April 2012 at 7.
  8. “NACDL urges all states and U.S. territories to adopt such constitutional provisions, laws or regulations necessary to guarantee that every accused person, irrespective of financial capacity to engage counsel, shall be guaranteed counsel at the first appearance before a judicial officer at which liberty is at stake or at which a plea of guilty to any criminal charge may be entered.” Read the resolution at
  9. Douglas L. Colbert, When the Cheering (for Gideon) Stops, The Champion, June 2012 at 10.
  10. NACDL submitted amicus briefs ( in Rothgery v. Gillespie County, Texas, 554 U.S. 191 (2008), and Hurrell-Harring v. New York, 930 N.E.2d 217 (N.Y. 2010).
  11. According to Margaret Colgate Love, who is implementing the ABA’s National Inventory of Collateral Consequences, as of June 2012, researchers have identified at least 40,000 disabling consequences from criminal conviction.
  12. Padilla v. Kentucky, 130 S. Ct. 1473, 1480 (2010).
  13. Caroline Wolf Harlow, Defense Counsel in Criminal Cases, NCJ 179023 (Nov. 2000), at 6, Table 13.
  14. Robert C. Boruchowitz, Malia N. Brink & Maureen Dimino, Nat’l Ass’n of Criminal Def. Lawyers, Minor Crimes, Massive Waste: The Terrible Toll of America’s Broken Misdemeanor Courts 14-15 (2009) ( misdemeanor); Alisa Smith & Sean Maddan, Nat’l Ass’n of Criminal Def. Lawyers, Three-Minute Justice: Haste and Waste in Florida’s Misdemeanor Courts 15 (2011) (
  15. For a discussion of this project, see Report of the National Right to Counsel Committee, Justice Denied: America’s Continuing Neglect of Our Constitutional Right to Counsel 84-89(April 2009).
  16. For a summary of the extent to which states provide counsel in various categories of cases, see Paul Marcus, Why the Supreme Court Got Some (But Not a Lot) of the Sixth Amendment Right to Counsel Analysis Right, 21 St. Thomas L. Rev. 142, 164-165 (2009).
  17. Argersinger, 407 U.S. at 37.
  18. Id. at 47.
  19. Id. at 34.
  20. Id. at 34-35.
  21. Id. at 48 (citations omitted).
  22. Scott v. Illinois, 440 U.S. 367 (1979).
  23. Paul Marcus, supra note 16, at 172-187 (discussing the many aspects of life in which a conviction, irrespective of imprisonment, may lead to dire consequences).

Editor’s Note: To underscore NACDL’s determination to secure indigent defense reform in the coming years and to ensure universal access to counsel in every criminal prosecution, NACDL’s president and executive director, who normally write separate columns, have joined together to articulate NACDL’s vision of an important next step to fulfill the promise of Gideon. 

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