This week, we’re sharing two discussions on John Whitlow’s recently published article reflecting on New York’s right to counsel in evictions proceedings. Our contributors share visions of right to counsel that move beyond due process rights. The contributors show that right to counsel campaigns are part of broader movements that seek to address the material deprivation underlying the need for counsel in the first place.
373 U.S. 335. For many public defenders, these eight characters are immediately recognizable. Better known as Gideon v. Wainwright—the famous Supreme Court case that established a constitutional right to public defenders in criminal cases. Many defenders have those same eight characters tattooed as a mark of vocation and a symbol of dedication to the work.
Gideon similarly marks the whole profession: it is our foundational myth, which is retold as follows. Clarence Gideon, facing a felony charge, asked the trial court to appoint an attorney to represent him—a request the trial court denied, stating that the court could not appoint a lawyer. After conviction and without counsel from his prison cell, Gideon handwrote and filed an appeal to the Supreme Court. Yale-educated attorney Abe Fortas then took on the case and persuaded the nine justices, who unanimously ordered a new trial for Clarence Gideon. They held that the assistance of counsel in a criminal trial is a fundamental right essential to a fair trial, a right that requires appointed counsel when a person cannot otherwise afford a lawyer.
Liberal law schools everywhere champion this story as a testament to the will and fortitude of a man who kept pushing for his rights, and a Supreme Court, that, in their wisdom, agreed and made this right the law of the land. The moral of this story is that an individual with faith in the system and a talented lawyer with the right ideas can change everything. However, this myth is missing the role of movements in establishing this right—the decades of union and anti-racist organizing that led to all but eight states adopting right to counsel far before Gideon was even decided.
The world is not shaped by the power of elite ideas, but class struggle. The guarantor of our rights is not enlightened liberals in elite institutions asserting our rights in the marketplace of ideas. All of our civil rights are the result of struggle in the real world—in the streets and the workplace. The right to counsel, like the right to form unions, the minimum wage, and to healthcare, were not bequeathed to us by benevolence but rather were the product of struggle. The decades of organizing by ordinary people, whose lives were on the line is missing from this story.
Sure enough, re-reading Gideon reveals an often overlooked and unheralded precedent.Gideon was not the first case in which the Supreme Court recognized that the Sixth Amendment demanded a right to competent counsel. The citation for that proposition was Powell v. Alabama, better known as the Scottsboro Boys trial. The story of Powell is very different from the Gideon myth—a story about the Communist Party, sharecroppers unions, and a multi-racial struggle with the backing of organized labor, fighting like hell for the basic right to a fair trial and competent legal counsel.
The Scottsboro case concerned allegations of rape against nine black teenagers in Alabama in 1931. The State of Alabama gave them a hasty trial, a concession won by anti-lynching organizing and agitation by black activists; however, the trial suffered significant defects, including a lack of competent counsel. The court appointed two unskilled and under-resourced lawyers to represent all nine, resulting in a trial that took less than a single day and resulted in conviction. The International Labor Defense (ILD), the legal wing of the Communist Party in the United States, agitated for and took up the appeal. At the time, the ILD and the Communist Party devoted significant resources to the case, realizing that black liberation was integral to a working-class revolution.
The ILD structured the defense strategy around a concept of “mass defense.” The strategy extends outside of the courtroom and also engages the masses with the defense.Robin D.G. Kelley notes in Hammer and Hoe that there are still young black men who are falsely accused, and there are still heroic efforts to defend them, but there was one fundamental difference in Scottsboro: “The presence of the Left. The Communists and the ILD transformed a local- and I might add, common- injustice into an international cause célèbre by building a mass movement to free the Scottsboro Nine. Two weeks after the arrest, the Communists got thirteen thousand people to take to the streets of Cleveland and protest the “Scottsboro Frame-up.” The very next day, they led a demonstration in New York City, twenty thousand strong. They formed Scottsboro defense committees all over the country, whose members flooded the Alabama governor’s office with telegrams, letters, and postcards demanding freedom for the Scottsboro Boys.” The ILD’s mass defense strategy recognized that the legal battle in the courtroom is only one part of the broader struggle for comprehensive social and economic change. This strategy included letter writing campaigns, media campaigns, mutual aid to care for the families of those incarcerated, and organizing sharecropper unions. With this backdrop, the Supreme Court in Powell ordered a new trial, on the grounds that due process had been violated because of the lack of competent, appointed counsel.
The difference between these stories is a reflection of the fundamental difference in perspectives from which to view the legal system. Lawyers frame Gideon as a story about rights from the top-down—elite lawyers standing at the top of the system and being upset that it is not functioning ideally. The other perspective is from the bottom-up, from people who are being harmed by the system and whose concern is not with its “proper functioning,” but rather, in reducing its capacity to harm them.
This difference in perspective also explains how the evolution of “right to counsel” has failed to live up to its initial potential. The criminal legal punishment system has expanded so that Gideon’s guarantees are now insufficient in providing adequate legal representation. The right to counsel in criminal proceedings has failed to expand, even though the punishments for criminal proceedings have evolved beyond fines, fees, jail, prison, and death. Individuals charged with crimes today face a complex array of legal and administrative hearings triggered by criminal charges. They must represent themselves at these hearings, the impacts of which can include losing their children, facing suspension of their driver’s licenses, losing their jobs, and being evicted or being unable to find new housing. Furthermore, these proceedings can impact outcomes in criminal cases.
“Holistic defense” has, for reform-minded public defenders, become an important way of framing the need for an expansion of the right to counsel. “Holistic defense” means not just representing an individual in their criminal case, but providing services and advocacy to address all the consequences of arrest. Most often, this means representation in immigration, housing, or family court, and ensuring access to mental health, substance use, or social work services. Despite the common-sense recognition that these consequences matter to the lives of the indigent accused (sometimes even more than their criminal case), the right to counsel in these areas is not always guaranteed by law, resulting in people navigating those proceedings without a lawyer.
The deification of elite lawyers and the Supreme Court justices in common retellings of Gideonhas stunted efforts to expand right to counsel. In the housing context, John Whitlow observes that “[b]ecause the political emancipation that theoretically flows from liberal rights regimes is located squarely within the prevailing social order, its benefits typically do not redound to those at the bottom of that order. A narrow focus on legal rights in this context tends to individualize inequality and stratification, and in the process legitimizes the status quo by failing to contend with how power is distributed in society.”
Defenders today sometimes fall into this trap. By comparison, in the time of Powell, lawyers practicing a “mass defense” model sought a right to counsel as part of the effort to dismantle a racist criminal punishment system. Lawyers must learn that if we fail to take the truly holistic perspective in what it means to advocate for and withour clients in all of the aspects of their oppression, then the “right to counsel” will remain a hollow promise.
To win an expansive understanding of the right to counsel, we must follow the path charted by the International Labor Defense and the social movements of the twentieth century. The right to counsel in eviction cases is, as Whitlow notes, only a part of the steps needed that “build the organizing capacity of tenants and place property within the reach of democratic and redistributive intervention.” Conceptualizing the right to counsel as one focused on reducing the harms wrought by the criminal punishment system by providing holistic, mass representation to people will be just the beginning of what working-class and antiracist movements can achieve to make good on the ideal of equal justice under the law.