Fifty years ago Gideon promised that an attorney would vindicate the constitutional rights of any accused too poor to afford an attorney. But Gideon also promised more. Writ small, Gideon promised to protect individual defendants; writ large, Gideon promised to protect our system of constitutional criminal procedure. Much has been written about Gideon’s broken promise to our poor; this Essay is about Gideon’s broken promise to our system.
With its army of zealous public defenders, Gideon should have produced litigation that vigorously protected the core structures of our adversary trial system. Instead, courts have converted Gideon representation into a Gideon defendant’s de facto relinquishment of important Sixth Amendment rights. As a result, counsel – not client – controls the invocation and exercise of the adversary procedures. And, even as to those Sixth Amendment rights still within a defendant’s exclusive control, Strickland eviscerates a defendant’s capacity to seek redress when counsel precludes the exercise of a fundamental right. As a result, Gideon has increasingly become an enforcer of the status quo – a cog in the systemic machine that grinds continually toward under-enforcement of Sixth Amendment adversary rights.