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Dissenting Opinion

MR. JUSTICE BLACK, dissenting, with whom MR. JUSTICE DOUGLAS and MR. JUSTICE MURPHY concur.

To hold that the petitioner had a constitutional right to counsel in this case does not require us to say that "no trial for any offense, or in any court, can be fairly conducted and justice accorded a defendant who is not represented by counsel." This case can be determined by a resolution of a narrower question: whether, in view of the nature of the offense and the circumstances of his trial and conviction, this petitioner was denied the procedural protection which is his right under the Federal Constitution. I think he was.

The petitioner, a farm hand, out of a job and on relief, was indicted in a Maryland state court on a charge of robbery. He was too poor to hire a lawyer. He so informed the court, and requested that counsel be appointed to defend him. His request was denied. Put to trial without a lawyer, he conducted his own defense, was found guilty, and was sentenced to eight years' imprisonment. The court below found that the petitioner had "at least an ordinary amount of intelligence." It is clear from his examination of witnesses that he was a man of little education.

If this case had come to us from a federal court, it is clear we should have to reverse it, because the Sixth Amendment makes the right to counsel in criminal cases inviolable by the Federal Government. I believe that the Fourteenth Amendment made the Sixth applicable to the states. [1] But this view, although often urged in dissents, has never been accepted by a majority of this Court [p475] and is not accepted today. A statement of the grounds supporting it is, therefore, unnecessary at this time. I believe, however, that, under the prevailing view of due process, as reflected in the opinion just announced, a view which gives this Court such vast supervisory powers that I am not prepared to accept it without grave doubts, the judgment below should be reversed.

This Court has just declared that due process of law is denied if a trial is conducted in such manner that it is "shocking to the universal sense of justice" or "offensive to the common and fundamental ideas of fairness and right." On another occasion, this Court has recognized that whatever is "implicit in the concept of ordered liberty" and "essential to the substance of a hearing" is within the procedural protection afforded by the constitutional guaranty of due process. Palko v. Connecticut, 302 U.S. 319, 325, 327.

The right to counsel in a criminal proceeding is "fundamental." Powell v. Alabama, 287 U.S. 45"]287 U.S. 45, 70; 287 U.S. 45, 70; Grosjean v. American Press Co., 297 U.S. 233"]297 U.S. 233, 243-244. It is guarded from invasion by the Sixth Amendment, adopted to raise an effective barrier against arbitrary or unjust deprivation of liberty by the Federal Government. 297 U.S. 233, 243-244. It is guarded from invasion by the Sixth Amendment, adopted to raise an effective barrier against arbitrary or unjust deprivation of liberty by the Federal Government. Johnson v. Zerbst, 304 U.S. 458, 462.

An historical evaluation of the right to a full hearing in criminal cases, and the dangers of denying it, were set out in the Powell case, where this Court said:

What . . . does a hearing include? Historically and in practice, in our own country, at least, it has always included the right to the aid of counsel when desired and provided by the person asserting the right . . . Even the intelligent [p476] and educated layman . . . lacks both the skill and knowledge adequately to prepare his defense, even though he have a perfect one. He requires the guiding hand of counsel in every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence.

Powell v. Alabama, supra, 68-89. Cf. Johnson v. Zerbst, supra, 462-463.

A practice cannot be reconciled with "common and fundamental ideas of fairness and right," which subjects innocent men to increased dangers of conviction merely because of their poverty. Whether a man is innocent cannot be determined from a trial in which, as here, denial of counsel has made it impossible to conclude, with any satisfactory degree of certainty, that the defendant's case was adequately presented. No one questions that due process requires a hearing before conviction and sentence for the serious crime of robbery. As the Supreme Court of Wisconsin said, in 1859,

. . . would it not be a little like mockery to secure to a pauper these solemn constitutional guaranties for a fair and full trial of the matters with which he was charged, and yet say to him, when on trial, that he must employ his own counsel, who could alone render these guaranties of any real permanent value to him. . . . Why this great solicitude to secure him a fair trial if he cannot have the benefit of counsel?

Carpenter v. Dane County, 9 Wis. 274, 276-277.

Denial to the poor of the request for counsel in proceedings based on charges of serious crime has long been regarded as shocking to the "universal sense of justice" throughout this country. In 1854, for example, the Supreme Court of Indiana said:

It is not to be thought of, in a civilized community, for a moment, that any citizen put in jeopardy of life or liberty should be debarred of counsel because he was too poor to employ such aid. No Court could be respected, or respect itself, to sit and hear [p477] such a trial. The defence of the poor in such cases is a duty resting somewhere, which will be at once conceded as essential to the accused, to the Court, and to the public.

Webb v. Baird, 6 Ind. 13, 18. And most of the other States have shown their agreement by constitutional provisions, statutes, or established practice judicially approved, which assure that no man shall be deprived of counsel merely because of his poverty. [2] Any other practice seems to me to defeat the promise of our democratic society to provide equal justice under the law.



Rev.Stat. 1874, Criminal Code, § 422; Jones' Ill.Stat.Ann.1936, § 37.707. [p478] Cf.Laws, 1933, 430-431. See also Vise v. County of Hamilton, 19 Ill. 78, 79 (1857). IOWA: Territorial Laws, 1839, Courts, § 64; Iowa Code, 1939, § 13773. KANSAS: See Compilation published in 1856 as S.Doc. No. 23, 34th Cong., 1st Sess., 520 (c. 129, Art. V, § 4). Laws, 1941, c. 291. LOUISIANA: Act of May 4, 1805, of the Territory of Orleans, § 35; Dart's Louisiana Code of Criminal Procedure, 1932, Title XIII, Art. 143. MINNESOTA: Minnesota General Laws, 1869, c. LXXII, § 1; Mason's Minnesota Statutes, 1927, §§ 9957, 10667. MISSOURI: Digest of Laws of Missouri Territory, 1818, Crimes and Misdemeanours, § 35; Rev.Stat. 1939, § 4003. MONTANA: Montana Territory Criminal Practice Act of 1872, § 196 (Laws of Montana, Codified Stat. 1871-1872, 220); Revised Code, 1935, § 11886. NEBRASKA: General Statutes, 1873, c. 58, § 437; Compiled Stat. 1929, § 29-1803. NEVADA: Act of November 26, 1861 (Compiled Laws, 1861-1873, Vol. I, 477, 493); Compiled Laws, 1929, Vol. 5, § 10883. NEW HAMPSHIRE: Laws, 1907, c. 136; Laws, 1937, c. 22. NEW JERSEY: Act of March 6, 1795, § 2; New Jersey Stat. § 2.190-3. NEW YORK: Code of Criminal Procedure, § 308 (enacted in 1881, still in force). See People v. Supervisors of Albany County, 28 How.Pr. 22, 24 (1864). NORTH DAKOTA: Dakota Territory Code of Procedure, 1863, § 249 (Rev.Codes, 1877, Criminal Procedure, 875); Compiled Laws, 1913, Vol. II, §§ 8965, 10721. OHIO: Act of February 26, 1816, § 14 (Chase, Statutes of Ohio, 1788-1833, Vol. II, 982); Throckmorton's Ohio Code Ann.1940, Vol. II, § 13439-2. OKLAHOMA: Oklahoma Territorial Stat. 1890, c. 70, § 10; Stat.Ann.1941 Supp., Title 22, 464. OREGON: Act of October 19, 1864 (General Laws, 1845-1864, c. 37, § 381; Laws 1837, c. 406 (Compiled Laws Ann, Vol. III, § 26-804). SOUTH DAKOTA: Dakota Territory Code of Procedure, 1863, § 249 (Rev.Codes, 1877, Criminal Procedure 875); Code of 1939, Vol. II, § 34.1901. TENNESSEE: Code of 1857-1858, §§ 5205, 5206; Code of 1938, [p479] §§ 11733, 11734. UTAH: Laws of Territory of Utah, 1878, Criminal Procedure, § 181; Rev.Stat. 1933, § 105-22-12. WASHINGTON: Statutes of Territory of Washington, 1854, Criminal Practice Act, § 89; Remington's Revised Statutes, 1932, Vol. IV, §§ 2095, 2305. WYOMING: Laws of Wyoming Territory, 1869, Criminal Procedure, § 98; Rev.Stat. 1931, § 33-501.

B. By judicial decision or established practice judicially approved. CONNECTICUT: for an account of early practice in Connecticut, see Zephaniah Swift "A System of the Laws of the State of Connecticut," Vol. II, 392:

The chief justice then, before the prisoner is called upon to plead, asks the prisoner if he desires counsel, which, if requested, is always granted as a matter of course. On his naming counsel, the court will appoint or assign them. If, from any cause, the prisoner decline to request or name counsel and a trial is had, especially in the case of minors, the court will assign proper counsel. When counsel are assigned, the court will enquire of them whether they have advised with the prisoner, so that he is ready to plead, and if not, will allow them proper time for that purpose. But it is usually the case that the prisoner has previously employed and consulted counsel and, of course, is prepared to plead.

See Powell v. Alabama, 287 U.S. 45, footnote, 63-64. See also Connecticut General Statutes, Revision of 1930, § 2267, 6476. FLORIDA: Cutts v. State, 54 Fla. 21, 23, 45 So. 491 (1907). See Compiled General Laws, 1927, § 8375 (capital crimes). INDIANA: Webb v. Baird, 6 Ind. 13, 18 (1854). See also Knox County Council v. State ex rel. McCormick, 217 Ind. 493, 497-498, 29 N.E.2d 405 (1940); State v. Hilgemann, 218 Ind. 572, 34 N.E.2d 129, 131 (1941). MICHIGAN: People v. Crandell, 270 Mich. 124, 127, 258 N.W. 224 (1935). PENNSYLVANIA: Commonwealth v. Richards, 111 Pa.Super. 124, 169 A. 464 (1933). See Commonwealth ex rel. McGlinn v. Smith, 344 Pa. 41, 49, 59, 24 A.2d 1. VIRGINIA: Watkins v. Commonwealth, 174 Va. 518, 521-525, 6 S.E.2d 670 (1940). [p480] WEST VIRGINIA: State v. Kellison, 56 W.Va. 690, 692-693, 47 S.E. 166 (1904). WISCONSIN: Carpenter v. Dane County, 9 Wis. 274 (1859). See Stat. 1941, § 357.26.

C. By constitutional provision. GEORGIA: Constitution of 1865, Art. 1, Par. 8. See Martin v. Georgia, 51 Ga. 567, 568 (1874). KENTUCKY: Kentucky Constitution, § 11. See Fugate v. Commonwealth, 254 Ky. 663, 665, 72 S.W.2d 47 (1934).

II. States which are without constitutional provision, statutes, or judicial decisions clearly establishing this requirement:

COLORADO: General Laws, 1877, §§ 91916; Colorado Stat.Ann.1935, Vol. 2, c. 48, §§ 502, 505, as amended by Laws of 1937, 498, § 1. See Abshier v. People, 87 Colo. 507, 517, 289 P. 1081. DELAWARE: See 6 Laws of Delaware 741; 7 id. 410; Rev.Code, 1935, §§ 4306, 4310. MAINE: See Rev.Stat. 1857, 713; Rev.Stat. 1930, C. 146, § 14. MASSACHUSETTS: See McDonald v. Commonwealth, 173 Mass. 322, 327, 53 N.E. 874 (1899). NEW MEXICO. NORTH CAROLINA. RHODE ISLAND: See State v. Hudson, 55 R.I. 141, 179 A. 130 (1935); General Laws, 1938, c. 625, § 62. SOUTH CAROLINA: See State v. Jones, 172 S.C. 129, 130, 173 S.E. 77 (1934); Code, 1932, Vol. I, § 980. VERMONT.

III. States in which dicta of judicial opinions are in harmony with the decision by the court below in this case:

ALABAMA: Gilchrist v. State, 234 Ala. 73, 74, 173 So. 651. MISSISSIPPI: Reed v. State, 143 Miss. 686, 689, 109 So. 715.

IV. States in which the requirement of counsel for indigent defendants in noncapital cases has been affirmatively rejected:

MARYLAND: See, however, Coates v. State, 180 Md. 502, 25 A.2d 676. TEXAS: Gilley v. State, 114 Tex.Cr. 548, 26 S.W.2d 1070. But cf. Brady v. State, 122 Tex.Cr. 275, 278, 54 S.W.2d 513.


^ . Discussion of the Fourteenth Amendment by its sponsors in the Senate and House shows their purpose to make secure against invasion by the states the fundamental liberties and safeguards set out in the Bill of Rights. The legislative history and subsequent course of the amendment to its final adoption have been discussed in Flack, "The Adoption of the Fourteenth Amendment." Flack cites the Congressional debates, committee reports, and other data on the subject. Whether the amendment accomplished the purpose its sponsors intended has been considered by this Court in the following decisions, among others: O'Neil v. Vermont, 144 U.S. 323, dissent, 337; Maxwell v. Dow, 176 U.S. 581, dissent, 605; Twining v. New Jersey, 211 U.S. 78, 98-99, dissent, 114.

^ . In thirty-five states, there is some clear legal requirement or an established practice that indigent defendants in serious noncapital as well as capital criminal cases (e.g., where the crime charged is a felony, a "penitentiary offense," an offense punishable by imprisonment for several years) be provided with counsel on request. In nine states, there are no clearly controlling statutory or constitutional provisions, and no decisive reported cases on the subject. In two states, there are dicta in judicial decisions indicating a probability that the holding of the court below in this case would be followed under similar circumstances. In only two states (including the one in which this case arose) has the practice here upheld by this Court been affirmatively sustained. Appended to this opinion is a list of the several states divided into these four categories.