Where To After Gideon?

Like most Americans, Justice Potter Stewart heartily endorsed the Supreme Court's famous decision in Gideon v. Wainwright (1963), which ordered all American courts to provide lawyers for indigent defendants--at least in the trial of felony cases. What now bothers Stewart is the court's refusal to answer an insistent question: Does Gideon's right to counsel also cover misdemeanors?

Twice this term, Stewart has publicly chided his brethren for passing up chances to tackle the misdemeanor issue. In October came the case of an indigent Little Rock, Ark., Negro busboy, who was found necking with a white waitress and convicted of "immorality," a local misdemeanor. Tried without counsel, he spent 91 months in jail, working off his 30-day sentence and $254 fine at $1 per day. Only Justice Hugo Black joined Stewart in holding that the case should be reviewed. But such acceptance requires the votes of four justices, and Stewart argued in vain that "it is at least our duty to see to it that a vital guarantee of the U.S. Constitution is accorded with an even hand in all the states."

Last week Stewart again dissented when the court refused to review the Connecticut case of John DeJoseph, charged with criminal nonsupport. Two Hartford judges denied DeJoseph's requests for indigent's counsel because the charge was only a misdemeanor; DeJoseph tried to defend himself and went to jail for six months. By contrast, a Connecticut federal court recently freed another man who had been jailed for exactly the same offense, simply because the state failed to tell him that he had a right to a lawyer. Said Stewart: "When the meaning of a fundamental constitutional right depends on which court in Connecticut a person turns to for redress, I believe it is time for this court to intervene."

Silent Justices. Stewart keeps calling for action for the persuasive reason that only about 10% of U.S. defendants face felony charges. The other 90% are accused of misdemeanors, some of which carry sentences as long or longer than felonies. In Arkansas, for example, a misdemeanor can call for imprisonment of as much as three years. Yet an American Bar Foundation study recently reported that when it came to providing counsel for misdemeanants, "wide variations in practice existed from one state to another and from one county to another in the same state." And the highest courts of Arkansas, Florida and Connecticut have flatly limited Gideon to felonies.

In the Connecticut case, Stewart had a third supporter, Justice William O. Douglas. Will a fourth appear? Justice Abe Fortas, for example, is the very lawyer who won the Gideon decision in one of his great pre-bench coups. As court watchers see it, the silent justices are mainly fearful of the effects of carrying out Gideon's admitted logic. Most misdemeanor cases now take only a few minutes; to require lawyers might inflate them into regular trials. The country has not even begun to provide enough public defenders for accused felons; adding misdemeanor cases might overwhelm the bar.

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