Does Gideon Harm Poor Defendants?

Having just passed the 55th anniversary of the Supreme Court’s decision in Gideon v. Wainwright, holding that an indigent defendant is denied his fundamental right to a fair trial without assistance of counsel, Georgetown lawprof Paul Butler has revisited his 2013 Yale Law Review article on Gideon.

Have we failed indigent defendants by our societal refusal to adequately fund indigent defense? Nah, that’s not his problem at all.

A low income person is more likely to be prosecuted and imprisoned post-Gideon than pre-Gideon. Poor people lose in American criminal justice not because they have ineffective lawyers but because they are selectively targeted by police, prosecutors, and law makers. The critique of rights suggests that rights are indeterminate and regressive. Gideon demonstrates this critique: it has not improved the situation of most poor people, and in some ways has worsened their plight. Gideon provides a degree of legitimacy for the status quo. Even full enforcement of Gideon would not significantly improve the loser status of low-income people in American criminal justice.

It’s one thing to argue that over the past 55 years a great many things have happened in criminal law that have exacerbated the circumstances of the poor. But how is it that providing defense lawyers for the poor is “regressive”?

The “critique of rights,” as articulated by critical legal theorists, posits that “nothing whatever follows from a court’s adoption of some legal rule” and that “winning a legal victory can actually impede further progressive change.” My thesis is that Gideon demonstrates the critique of rights. Arguably, Gideon has not improved the situation of accused persons, and may even have worsened their plight.

The notion that a legal victory can impede more effective change* may be counter-intuitive, but one that can wreak havoc in the trenches. What appears to be a big win on paper doesn’t necessarily translate to a real win in practice. More importantly, a palliative win, the sort that makes you feel all warm and fuzzy but fails to produce the putative change intended, can be very damaging.

In the context of Gideon, the Supreme Court held that counsel is a fundamental right, but failed to establish how that mandate would be fulfilled. And if Gideon doesn’t float your boat, consider the massive joke of Brady v. Maryland, which failed to provide the mechanism by which its wondrous gift would be delivered. But how does the right to counsel “worsen” the plight of the indigent?

The reason that prisons are filled with poor people, and that rich people rarely go to prison, is not because the rich have better lawyers than the poor. It is because prison is for the poor, and not the rich. In criminal cases poor people lose most of the time, not because indigent defense is inadequately funded, although it is, and not because defense attorneys for poor people are ineffective, although some are. Poor people lose, most of the time, because in American criminal justice, poor people are losers. Prison is designed for them. This is the real crisis of indigent defense. Gideon obscures this reality, and in this sense stands in the way of the political mobilization that will be required to transform criminal justice.

There are two distinct assertions being made. That there are vastly more poor in prison than rich is indisputable, but whether that’s because “prison is designed” for poor losers is a matter of ideology. While this may be a controversial assertion, it’s also somewhat gratuitous, and thus not material to the second, and more significant assertion: that Gideon provides cover for over incarceration rather than safeguards the rights of the indigent.

I know that, for some readers, these claims are counterintuitive, and I ask  these readers’ indulgence for the time it takes to read this Essay, in which I will attempt to prove my claims. It is also important to emphasize that I am not making a “but-for” claim of causation. Gideon is not responsible for the exponential increase in incarceration or the vast rise in racial disparities in criminal justice. As I explain later, however, Gideon bears some responsibility for legitimating these developments and diffusing political resistance to them.

It invests the criminal justice system with a veneer of impartiality and respectability that it does not deserve. Gideon created the false consciousness that criminal justice would get better. It actually got worse. Even full enforcement of Gideon would not significantly improve the wretchedness of American criminal justice.

The knee-jerk reaction to this argument is that it’s crazy. How could it possibly be a bad thing to provide lawyers for the poor? Is he suggesting that it would be better to have the poor prosecuted without lawyers? That’s crazy, right?

Not so fast. As Butler explains, his point is counterintuitive, but it focuses on a deeper problem, one that most crim law reformers lack either the experience or depth to grasp. Butler isn’t suggesting that thrusting the indigent into the trenches without lawyers is a good thing, but that it’s an inadequate remedy for a larger, more systemic problem, that defendants lose, whether with or without counsel. Not because they’re necessarily guilty. Not because their guilt, assuming they are guilty, is so awful as to rationally justify the obstacles to their having a level playing field.

What this second assertion seeks to establish is that we’ve created a minefield of crimes around the poor, sent in an army of cops to their neighborhood to catch them (or just make it up if need be) violating the law, and then give them a lawyer as they face a system that produces guilt in 97% of its cases, with or without counsel. But we can all feel good about it because of Gideon. After all, we give the poor free lawyers, right? What more can we do?

Of course, it’s not that Gideon is, in itself, the cause of the problem, or anything other than a great right in theory. But many ideas that seem, at first blush, to be huge wins, highly favorable to the defendant, but inadequate to change the outcome, serve only to perpetuate the problem while making us feel better about them.

This is why it’s so critical to shed the lies we tell ourselves about what the real problems are, and what solutions will seriously address them. We have Gideon. We have massive over-incarceration. The former removes some of the stain from the latter, even though there is a very serious question whether it provides anything more than a veneer of respectability on a system where the poor can’t win no matter what.

*Butler characterizes it as “progressive change,” but since this was published five years ago, it’s unclear whether “progressive” was used then in the sense it’s commonly understood today.

29 thoughts on “Does Gideon Harm Poor Defendants?

  1. PDB

    The “veneer of impartiality and respectability” claim describes pretty much every single Supreme Court case vindicating defendants’ rights: Brady, Strickland, Griffin, Faretta. You could make the same claim about the Bill of Rights as a whole really. That was Stuntz’s argument in The Collapse of American Criminal Justice, that the Constitution is all about process over substance in criminal law. Not sure why the author singles out Gideon, unless its simply to give a representative example.

    1. SHG Post author

      While I obviously can’t speak for Butler, I would assume Gid stands out because it’s expressly directed toward the fundamental rights of the poor, rather than a general right. And you should give a trigger warning before mentioning Strickland.

          1. PDB

            Sorry, I’m not trying to be facetious here, I’m actually wondering what’s going on. Is your opposition just based on how weak of an opinion it is and that the prejudice component effectively renders the test a nullity in so many cases, or is it something more personal?

            1. F. Lee BillyGoat

              You guys are definitely funny. IAMNAL, and I’m not about to start now. Cross 101? Ha, that’s a good one. I can just imagine the torture.

  2. F. Lee Billy

    Butler’s ideas are certainly original, and yes, “counter-intuitive.” I never would have thought of them. They do seem crazy. On the other hand, he has made some interesting points. Gideon does appear to give cover to over-incarceration, which is undeniable nationwide IMO. My own experience, which I assume is in line with the Host here, is that Gideon is absolutely necessary, and a step in the right direction, even after 55 years. The problem is that it does not go far enough; it is underfunded in most, if not all jurisdictions. The fact remains: We like to pass judgment on the least competent and poorest amongst us. That’s why some of us “activists” call it the Prison-Industrial Complex. Beeecause,… that is exactly what it is. Hundreds of thousands of our fellow citizens make a decent living putting folks into prisons where they don’t belong. Most are poor and dumb. Some are poor and smart. Some few may be wealthy [thru ill-gotten wealth] and dumb. That’s life in the Fast Lane!

      1. F. Lee Billy

        We keep fleas in the top drawer. Bedbugs in the second drawer. Cockroaches in the third drawer, and spiders in the fourth. What happened to the rest of my comment? I worked hard on that! A v. important topic. Thanx for posting. No H/T? You didn’t find this Butler fellow all by yourself, did you? Yale Law Review-breath.

      2. F. Lee BillyGoat

        My favorite law review article remains, “Law as Magic,” Jesse Allen, 2007/08. Check it out, you will not be disappointed! Gideon and Brady are bit players in the magic show known as The Law. They, as Butler posits, put a veneer of respectability on those awful, unjust guilty verdicts and unnecessary incarcerations. In addition to the truly innocent, you have the overcharged, and those cases where the alleged crime(s) were committed by no one. Fact is stranger than those dime-a-dozen crime novels would indicate. Collateral damage can be catastrophic for some. But who cares, really?

  3. Joe Strummer

    I agree. These process rights – Brady, Kyles, Strickland, Gideon, and others like 4th amendment suppression rights and Miranda – are better than nothing. It’s like equipping a plumber with a crappy Sears wrench rather than forcing him to use his bare hands to fix your pipes. After you’ve seen these process rights in action, you realize how rarely they actually are useful in extricating your client from his predicament.

    The real problem, to beat this analogy to death, is that the pipes are badly made, and we shove too much sh*t through them. We have just criminalized vast swathes of human conduct; in a world where most crimes are serious property crimes and crimes against persons, the adversarial system may work fine. In a world where all kinds of non-violent crimes are punishable by outrageous criminal sanctions, the process rights will not save you. Also, $132/hr for a CJA lawyer is pathetic.

    1. SHG Post author

      CJA beats the hell out of Tennessee assigned counsel rates. As for your plumber analogy, it’s . . . interesting.

      1. Joe Strummer


        If the feds can’t even pay a decent rate, what hope is there for the states to live up to the promise of Gideon. Anyway, it tickles to me to hear about how we’re losing these federal judges (Luttig is always mentioned) with their quarter million salaries and federal pensions/benefits and built in support staff. Next time CJ Roberts gives his annual talk about how demanding federal judging is and what it requires in terms of talent, maybe, before that, he could take a road trip with a court-appointed defense lawyer to visit a client in a far-flung county jail to explain to their client how that 15 year ACCA plea is really as good as it’s gonna get because, with all our precious process rights, the feds still have a 93 percent conviction rate on the 5 percent of cases that actually go to trial. We had about 2 dozen trials last year in my district.

        1. SHG Post author

          Most district court judges I know are well-aware of how good they have it. Biggest problem is they can cash in with Biglaw, so that sweet $199,100 seems kinda small potatoes in comparison. But then, most aren’t in it for the money, though it does burn their ass that 3rd year associates are making more than they do.

          Then again, burns most CDLs asses too, considering we can try cases and they can barely spell their name when they endorse their bonus checks.

    2. F. Lee BillyGoat

      Excuse me! Sears is know for its quality tools. When I came of age anyhow. Today, who knows?
      Like your analogy and your comment.
      P.S., I’ll work for half that rate,… or for food.

  4. B. McLeod

    It seems to me that Gideon was a significant help for poor people who needed representation, and would be a lot more significant if adequately funded. It won’t make the legal world perfect for poor people, but it wasn’t supposed to (and probably nothing ever will). I suppose one could argue that the 1920s and 1930s law enforcement techniques whereby police just beat up suspects for minor felonies were less disruptive to the lives of the poor than are the lengthy incarcerations of today. I don’t think that makes the historic methods a fairer or better system of “justice.”

  5. John Barleycorn

    I say… these altschmerz moments of yours might just start erupting if you can finally figure out a way to take your jouska juggling to the next level this spring.

    P.S. I would seriously considering passing on a new pair of loafers and have yourself a fine pair of brogue boots put together. They are coming back you know!

  6. Richard Kopf


    Having concluded my day dealing (some would say screwing) with poor prisoners, I turned to your post on Professor Butler’s well worn critical legal theory that the “Man” is the root of all evil and the law merely a tool of the devil.

    For the sake of your readers, please link to Russell Crowe, as Javert, singing Stars from Les Miserables (2012). Brown’s reasoning and Crowe’s singing are on par with one another. Sorta touching in a juvenile way, but ultimately so bad you want to gauge out your own eyes.

    Looking forward to tomorrow and more poor wretches, I remain your faithful servant and wish you all the best.


    1. SHG Post author

      I would never subject anyone to Russell Crowe’s singing. Eighth Amendment. Butler’s theory is valuable as a warning/reminder for the simpletons of the world (and D.C.) that “this one cool trick” does not a fix make, and brings with it unintended negative consequences.

  7. PseudonymousKid

    Dear Papa,

    We’d be more legitimate if we wore wigs again, I bet. Come on, the judges still get to wear dresses. Let’s really put on a show before we shackle people, herd them together, and lock them in cages. Don’t mind the other impacts on the person and his family. He hit the bottle and went right to the rock, fuck the low class swine and damn him forever.

    Talking about poverty is uncomfortable. Better to just stay away from the topic and “them.”


    1. SHG Post author

      I’m all for it, wigs, gowns the whole shebang. Plus, eliminates the incredibly difficult question: is this tie okay?

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