Gideon's Trumpet (12 page)

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 been 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.…”

C
larence 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.”