Did Gideon enable the war on drugs, the sentencing severity revolution and modern mass incarceration?

The provocative question in the title of this post is the result of my latest personal ruminations over how to "celebrate" the 50th anniversary of the Supreme Court's landmark ruling in Gideon v. Wainwright this month.   Much of the discussion I have seen looks back at the Gideon case, reviews the ruling's import, and then laments that funding for lawyers for poor defendants remains inadequate. 

But this provocative New York Times op-ed by Paul Butler, headlined "Gideon’s Muted Trumpet," provides some broader context for how modern criminal justice has evolved over the last half century after Gideon becomes the law of the land. Here are excerpts, with a few lines emphasized by me to help explain the provocative question in the title of this post:

Fify years after the Supreme Court, in Gideon v. Wainwright, guaranteed legal representation to poor people charged with serious crimes, low-income criminal defendants, particularly black ones, are significantly worse off.

Don’t blame public defenders, who are usually overwhelmed. The problem lies with power-drunk prosecutors — I know, because I used to be one — and “tough on crime” lawmakers, who have enacted some of the world’s harshest sentencing laws.  They mean well, but have created a system that makes a mockery of “equal justice under the law.”  A black man without a high school diploma is more likely to be in prison than to have a job.

A poor person has a much greater chance of being incarcerated now than when Gideon was decided, 50 years ago today.  This is not because of increased criminality — violent crime has plunged from its peak in the early 1990s — but because of prosecutorial policies that essentially target the poor and relegate their lawyers to negotiating guilty pleas, rather than mounting a defense.

After Gideon, things got better for poor defendants in the short term.  Thousands who had not had lawyers at trial were released from jail.  Many states and localities created public defenders’ offices.  But political and legal developments soon eroded those achievements.

The so-called war on crime greatly expanded criminal liability.  A prosecutor can almost always find some charge: there are over 4,000 crimes on the federal books alone. Recreational drug use is one of the more popular activities in America, but racial minorities suffer the brunt of drug-related convictions.

In part because of federal grants to states to incarcerate drug offenders, the United States experienced the largest increase in incarceration in the history of the free world.  Our population is less than 5 percent of the world’s but we have nearly 25 percent of its prisoners.  When Gideon was decided, about 43 percent of defendants were indigent. Now, over 80 percent are....

Today over 90 percent of accused people plead guilty.  It’s rational, because the costs of being wrong are just too high.  As a young prosecutor, I enjoyed having all this power. I worked on a case against a property clerk who was stealing supplies from a government office.  We set up a sting, in which an undercover agent acted as a buyer of stolen merchandise.  Each time the clerk committed to selling more stolen goods, his potential sentence increased by five years.  We got the guilty plea we wanted.

The Supreme Court has famously stated that the prosecutor’s interest “is not that it shall win a case, but that justice shall be done.”  In our adversarial system, however, those are just words on paper.  Gideon, meanwhile, is an underfunded mandate.  Some public defenders are forced to juggle over 2,000 cases per year, as the journalist Karen Houppert found in a new book, “Chasing Gideon.”...

The Supreme Court recently extended Gideon’s reach to the plea bargaining process, a potentially encouraging development.  But, as the federal judge Jed S. Rakoff has written, the main problem is not defense lawyers’ “ineffectiveness” but prosecutors’ “overconfidence.”

Poor people lose, most of the time, in our criminal justice system not just because indigent defense is inadequately financed, although it is, and not because public defenders are ineffective, although some are.  They lose because prosecutors and lawmakers treat them like losers.  That is the real crisis of American indigent defense.

The points I have highlighted above provide the foundation for my rumination that without the Gideon ruling in 1963, many of the "political and legal developments" stressed by Butler might not have happened or even have been possible.  The decade after Gideon is when the modern "drug war" got started, and it is still going pretty strong four decades later; around the same time, as the commitment to rehabilitation in sentencing was assailed, lawmakers and prosecutors embraced more rigid and severe sentencing structures; and these forces were critical components in the multi-decade march toward modern mass incarceration.  I must wonder if these policial and legal development would have taken place the same way, or at all, if lawmakers and prosecutors did not feel confident that poor defendants' rights would always be safeguarded because they now had a constitutional right to a lawyer.

Readers familiar with the late great Bill Stuntz's ground-breaking scholarship will rightly think I am channelling some of his insights about the ways in which landmark Warren Court criminal procedure rulings provided a critical precursor to modern criminal justice problems.  Critically, I absolutely do not mean to assert or suggest — nor do I read Stuntz's work to assert or suggest — that Gideon and other landmark Warren Court rulings directly caused a host of modern criminal justice problems.  But I do not think it is mere coincidence that the American criminal justice landscape started to change dramatically, and often for the worse, not too long after the Supreme Court responded to Clarence Gideon's trumpet call for the constitutional right of all criminal defendants to get a lawyer's assistance.

That all said, I absolutely do not think Gideon was wrongly decided, nor am I suggesting that modern complaints about indigent defense being inadequately financed are overstated.  Rather, I am just eager in this forum to encourage everyone to "celebrate" Gideon by considering broadly what modern American criminal justice might look like if Gideon never became a name in our constitutional lexicon.

Recent related posts:

• "The Right to Counsel: Badly Battered at 50" (at a great moment for hope and change)
• Great symposium at Washington & Lee on Gideon a half-century later