Gideon's Trumpet

by Anthony Lewis

  The chief justices’ report was no scholarly contribution to the debate about the role of the Supreme Court. It passed over significant areas in which the modern Court has significantly enlarged state power, notably the power to tax and regulate the economy. But it did indicate how much emotion may arise over issues of federalism—and most interestingly, in relation to Gideon’s case, over the right of the states to run their criminal law without worrying about uniform national standards. For Gideon was asking the Supreme Court to impose on the fifty states a uniform rule of criminal procedure, the universal requirement that counsel be supplied to poor criminal defendants. And that claim inevitably clashed with the belief that diversity among the states was as important a theme in the Constitution as individual rights—a belief held by, among others, Felix Frankfurter.

  “Whatever inconveniences and embarrassments may be involved,” Justice Frankfurter wrote in 1958, “they are the price we pay for our federalism, for having our people amenable to—as well as served and protected by—two governments.” As a strong believer in the independence of the states, Justice Frankfurter was reluctant to impose new restraints on them even in the name of individual liberty. Justice Black was always much readier to cut through the duality and enlarge protections for the individual against any government.

  The contrast in views was graphically illustrated in the case of Alfonse Bartkus, the Illinois prisoner who had been tried by a federal and then an Illinois jury for the same bank robbery. Justice Frankfurter, writing for the Supreme Court majority that upheld the second prosecution, said the result was commanded by our system of dual sovereignties. “The greatest self-restraint is necessary,” he said in the opinion, “when that federal system yields results with which a court is in little sympathy.” Justice Black viewed the case not as a problem in governmental structure but as one of fairness to Alfonse Bartkus. “The Court apparently takes the position,” he said in dissent, “that a second trial for the same act is somehow less offensive if one of the trials is conducted by the Federal Government and the other by a state. Looked at from the standpoint of the individual who is being prosecuted, this notion is too subtle for me to grasp.”

  Underlying the Bartkus case was one of the great issues of federalism, a subject of conflict in the Supreme Court for nearly a century. This was the question of what provisions of the Constitution’s Bill of Rights, if any, applied to the states. The average American would probably have thought that Bartkus’s second trial, by the state of Illinois, was barred by the double-jeopardy clause of the Fifth Amendment: “nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb.” But that clause had been held to cover only federal, not state, criminal proceedings.

  The Bill of Rights is the name collectively given to the first ten amendments to the Constitution, all proposed by the First Congress of the United States in 1789 and ratified in 1791. The first eight contain the guarantees of individual liberty with which we are so familiar: freedom of speech, press, religion and assembly; protection for the privacy of the home; assurance against double jeopardy and compulsory self-incrimination; the right to counsel and to trial by jury; freedom from cruel and unusual punishments. At the time of their adoption it was universally agreed that these eight amendments limited only the Federal Government and its processes. Fear of the new central government had been the reason for their adoption, some states even refusing to ratify the Constitution until assured that the Federal Government would be restrained by a Bill of Rights.

  James Madison, who as a member of the House was a principal draftsman of the amendments, actually included one to guarantee individual rights against the states. It read: “No State shall infringe the right of trial by Jury in criminal cases, nor the rights of conscience, nor the freedom of speech, or of the press.” Madison thought it “the most valuable amendment in the whole list,” seeing more danger of abuse “by the State Governments than by the Government of the United States.” But the Senate rejected his proposal, and the original Bill of Rights limited only federal action. In 1833, in the case of Barron v. Baltimore, Chief Justice Marshall wrote the common understanding into law with a specific decision that the Bill of Rights did not cover the states.

  There matters stood until the Fourteenth Amendment became part of the Constitution in 1868. A product of the Civil War, it was specifically designed to prevent abuse of individuals by state governments. Section 1 provided: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” Soon the claim was advanced that this section had been designed by its framers to incorporate, and apply to the states, all the provisions of the first eight amendments.

  This theory of wholesale incorporation of the Bill of Rights has been adopted by one or more Supreme Court justices from time to time, but never a majority. The climactic battle came in 1947, in Adamson v. California, when four justices read the Fourteenth Amendment as including the entire Bill of Rights—Justices Black, Douglas, Frank Murphy and Wiley B. Rutledge. That five-to-four defeat was the high-water mark of the contention that the first eight amendments were incorporated in toto in the Fourteenth.

  But if wholesale incorporation has been rejected, the Supreme Court has used the Fourteenth Amendment to apply provisions of the Bill of Rights to the states selectively. The vehicle has been the clause assuring individuals due process of law. The Court has said that state denial of any right deemed “fundamental” by society amounts to a denial of due process and hence violates the Fourteenth Amendment. For example, freedom of speech is protected by the First Amendment against abridgement by Congress. If a state abridges free speech, the Court regards that freedom as so central to human liberty that it finds a violation of the Fourteenth Amendment’s due-process guarantee.

  The historical process by which provisions of the original Bill of Rights have thus been applied to state as well as federal action was described by Justice Benjamin N. Cardozo as a “process of absorption” of those rights “implicit in the concept of ordered liberty.” It is an ironic note that Justice Black, who had just come on the Court, joined the 1937 Cardozo opinion advancing that formula. As his own philosophy developed, he rejected the “absorption” idea, feeling that it left judges too much at large, and found greater certainty in the thesis of wholesale incorporation. But “absorption” has been and remains the accepted process.

  The difficult question has been which provisions of the first eight amendments to absorb. At first the Court was most reluctant to read any into the due-process clause of the Fourteenth. By the year 1900 the justices had refused to apply virtually every guarantee in the Bill of Rights to the states. As late as 1922 the Court said that the protections of the First Amendment—of free speech, press, religion and assembly—did not apply to the states. “But it is one thing to slam the door of the due-process clause and another to keep it shut,” Professor Paul A. Freund has written. In 1925 the Court changed its mind and said free speech was so fundamental that a state could not deny it without denying due process of law and violating the Fourteenth Amendment. The other freedoms of the First Amendment followed.

  The Court has been much more reluctant to apply to the states the guarantees of fair criminal procedure in the first eight amendments. It evidently felt, over many decades, that the one area in which the states were most clearly entitled to independence was in the application of their criminal law. Nothing could seem more obvious to us today than that to convict a man in an unfair criminal trial is to deprive him of life, liberty or property without due process of law. Yet it was not until 1923 that the Court specifically said unfair methods in a criminal trial were forbidden by the Fourteenth Amendment. That was an extreme case—five Arkansas Negroes condemned to death after a mob-dominated trial and on testimony said to have bee
n extorted by brutality. Justice Holmes suggested that the entire proceeding was “a mask,” with “counsel, judge and jury … swept to the fatal end by an irresistible wave of public passion.” The decision was only to let the prisoners come into federal court and try to prove their charges of unconstitutional treatment, not to set aside their convictions. Even at that, Justice James C. McReynolds dissented, saying: “The fact that petitioners are poor and ignorant and black naturally arouses sympathy; but that does not release us from enforcing principles which are essential to the orderly operation of our federal system.” (The five prisoners eventually had their sentences commuted by state authorities without final legal action.)

  Over the years the Supreme Court steadfastly resisted all efforts to apply to the states the specific criminal-law guarantees of the Bill of Rights, such as the Sixth Amendment’s provision for trial by jury and assistance of counsel and the Fifth Amendment’s ban on double jeopardy and self-incrimination. In 1949 the Fourth Amendment’s prohibition on illegal searches and seizures was dealt with in a notable opinion by Justice Frankfurter. He deeply opposed illegal police intrusion on the home—“the knock at the door,” he called it—but he could not put aside his firm belief in state independence. In this dilemma he took a curious compromise position. He held that the “core” of the Fourth Amendment was absorbed into the due-process clause of the Fourteenth. But he refused to apply to the states the essential enforcement device that had bound the federal courts since 1914, the rule that illegally seized material must be excluded from evidence at a man’s trial.

  History, then, showed a special reluctance on the part of the Supreme Court to impose on the states uniform national standards of fair criminal procedure. But there were signs of change in that history. Beginning in 1936, the Court had struck down state criminal convictions based on confessions coerced from the defendant. At first the third degree—physical brutality—was condemned. Over the years the Court gradually raised its standards of decency, condemning psychological as well as physical coercion of prisoners. By the 1950’s it was clear that the due-process clause of the Fourteenth Amendment was a pervasive guarantee against convictions based on extorted confessions, whether or not there was external evidence to support the truthfulness of the confession. The aim was not just to rule out suspect confessions but to discourage illegal police practices. That attitude on the part of the Court signaled more vigilance toward state criminal procedure in general.

  Another long step was taken in 1956, in the case of Griffin v. Illinois. Under the law of Illinois a person desiring to appeal his criminal conviction had to supply to the appellate court a transcript of his trial. A man too poor to buy one could not appeal. The Supreme Court held, five to four, that such a distinction between rich and poor denied the equal protection of the laws guaranteed by the Fourteenth Amendment; a state must provide a free transcript to poor prisoners, or some less elaborate trial record that would furnish a basis for appeal.

  The Griffin case marked a significant increase in the Court’s willingness to impose minimum standards of fairness on state criminal process. It was met by bitter criticism, from the Conference of Chief Justices among other state sources, but the trend continued.

  In 1961, just a year before it granted Clarence Earl Gideon’s petition for review, the Court took the step that Justice Frankfurter and a majority had been unwilling to take on illegal searches in 1949. In the case of Mapp v. Ohio it overruled the earlier decision and held that the Fourth Amendment was now fully applicable to the states: No illegally seized evidence could be admitted at state criminal trials. Justice Frankfurter, joined by Justices Harlan and Whittaker, dissented.

  Mapp v. Ohio certainly had import for the Gideon case. A majority had been willing to overrule a recent decision, and to do so in the face of strongly pressed claims of federalism. The Court had been warned that imposing a uniform national prohibition on illegal evidence would cripple state law enforcement and empty the jails, just as it could expect to be told in the Gideon case about the baleful effects of a uniform counsel requirement.

  The ruling in Mapp, together with the long series of coerced confession cases and the protection given the poor prisoner in Griffin v. Illinois, suggested a broad movement of the Supreme Court away from regard for state independence as a primary value in the constitutional law of criminal procedure. Younger justices, brought up in a United States that had become a nation, were concerned less about federalism and more about national ideals of fairness. Justice Brennan indicated the difference in attitude in a speech a few months before Mapp v. Ohio was decided. “Federalism should not be raised to the plane of an absolute,” he said, “nor the Bill of Rights be reduced to a precatory trust.… Far too many cases come from the states to the Supreme Court presenting dismal pictures of official lawlessness, of illegal searches and seizures, illegal detentions attended by prolonged interrogation and coerced admissions of guilt, of the denial of counsel.…”

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  Clarence Earl Gideon probably knew little of the legal history that underlay his case, and nothing of the Supreme Court’s great struggles over federalism, stare decisis and judicial review. It is doubtful that he could even have defined those phrases. (In that he would not have differed from many more elevated Americans.) But he did have an intuitive sense that his case was larger than himself, that he was part of a movement in history and would affect that movement. Or so it seemed to a stranger, interested in the case, who visited the prison at Raiford, Florida, to talk with him.

  “In Betts versus Brady they were trying to allow ’em their states’ rights,” Gideon said. “They gave the state courts discretion, but they don’t use any discretion. They just say no. They talk about states’ rights. I think there’s only one state—the United States.”

  Judging from the externals, it would be hard to imagine a figure less likely to be the subject of a great case in the Supreme Court of the United States. Gideon seems a man whose own private hopes and fears have long since been deadened by adversity—a used-up man, looking fifteen years older than his actual age of fifty-two. (He was born on August 30, 1910.) His figure is gaunt, a stooped six feet, one hundred and forty pounds. Behind light-framed glasses are worried eyes, set far back, with deep creases in the skin around them. His features are sharp, his ears prominent, his gray-white hair wavy. His lower lip trembles, and he speaks in a slow, sad, defeated voice.

  It would be difficult, too, to create a setting as dejected as the locale of Gideon’s alleged crime. Panama City (1960 population 33,275) is a town in the still largely undeveloped northwest panhandle of Florida. Just outside the city limits, twenty minutes from the motels and restaurants and Post Office that make “downtown,” is a gigantic International Paper Company plant, its tall chimneys spewing out sulphurous smoke. Huddled near the plant fence, within sight and smell of the chemical fumes, is the community of Bay Harbor. Community is too grandiose a word for it; Bay Harbor is a bitter, decayed parody of a movie set for a frontier town. It is just a few dilapidated buildings separated by dirt roads and alleys and weed-filled empty lots: a bar, a two-story “hotel,” a grocery and the Bay Harbor Poolroom. One who happened onto that dark street would be eager to drive back through the dank countryside to the highway and its neon. Gideon had no illusions about Bay Harbor; he called it “Tobacco Road.”

  Gideon’s temporary home, the state prison at Raiford, was cheerful by comparison. At the entrance there was no doubt that it was a prison; there were steel gates and a sign saying, that day, “1986 white males 1303 colored males.” (Quarters are completely segregated.) But inside, the scene was unexpectedly unforbidding, with small buildings separated by green lawns and beautifully kept shrubs and flowers. Trusties, wearing uniforms of white fatigues something like a hospital orderly’s outfit, wandered around freely; during the lunch hour some sat around outdoors smoking pipes and reading.

  Gideon was a trusty. He met his visitor in the prison “courtroom,” a bare room with a long table
used occasionally by inmates writing to courts. Gideon complained about the facilities.

  “Here’s the place you have to write your petition,” he said, “and you don’t have no help. That’s what hurts you. The Supreme Court sent me a book of rules, but I still can’t understand that. The rules take a pretty educated man to understand them.”

  He filled a cigarette paper and rolled it in his long, rather artistic fingers, stained with nicotine.

  “There’s no real lawyers in here now. I guess I know more than most, and I help out. I have one boy in here that can’t read or write. I wrote a letter to the Supreme Court of Florida for him asking them to appoint an attorney to write him a petition for habeas corpus. They accepted that letter as a petition and denied it without a hearing, so I wrote the whole thing over and sent it to the Supreme Court of the U.S.” (This prisoner was named Allen Baxley, Jr.; the Court was holding the petition until Gideon’s case was decided.)

  It was clear, in fact, that Gideon enjoyed his role as prison legal expert. And he had some sense of what he was about. He correctly complained, for example, about his trial judge’s statement that Florida law did not permit appointment of counsel in a non-capital case; Florida law merely did not require such appointment. “That wasn’t the law,” Gideon said. “He had all the power in the world to appoint a lawyer if he wanted to.” Gideon appreciated the quality of the letters he had had from Abe Fortas: “I notice he never makes a statement that isn’t well thought out. He never writes you anything that isn’t exactly that way.”