“GIDEON” One Step Forward, 1963 — The Courts 20 Steps Back, 2001-2012

On this date in 1963, the U.S. Supreme Court ruled that poor defendants being prosecuted for criminal offenses had a right to a court-appointed publicly-funded attorney. The Constitution established a right to counsel but that right was effectively possessed only by those who could afford to pay legal fees, it was a right conditioned upon wealth, and no wealth, no right.

The case known as GIDEON vs WAINWRIGHT was novel for several reasons, first, the defendant, Clarence Gideon had the gumption to write his own appeal once convicted on a charge of larceny for allegedly stealing a few beers, Cokes and jukebox change and sentenced to a five-year term for the $ 50 infraction. That in itself was remarkable because most people are too beaten down by the system to complain much less take action. Second, Earl Warren, Chief Justice and his colleagues were willing to read and consider a handwritten appeal from an indigent defendant.

The drama contained within the case was sufficient to support an award-winning book by New York journalist Anthony Lewis and then a film adaptation starring Henry Fonda.

It was one of several reforms accomplished by judicial review which helped to extend rights to the oppressed and to render our democracy closer to the ideal for which it was founded.

As the 50th anniversary of the decision has been reached the Right to Counsel remains on the books and is black-letter law but is observed only in civics texts and Law 101 classes while ignored in practice. Sure the rights exist but State Legislatures refuse to appropriate the funds to pay for lawyers thus effectively placing legal defense out of the reach of at least half, if not more of the population. Public Defenders, those assigned to provide a legal defense for the poor, are so overworked and so strapped for office support that it is estimated that an average attorney can devote only six minutes per client before arraignment.

In a way it is worse now than in 1963. At least the poor knew they were being shafted then, now we promote an official illusion that they will be represented while knowing full well that it is a scam.

Why are the Courts abdicating their role to protect the rights of the poor and dispossessed? Within the last 20 years the Vast Right-wing Conspiracy suitably provided with millions in donations have led a guerrilla campaign to takeover the Courts on behalf of Corporate interests. Tony Scalia, the squat fascist and his puppet, Clarence “Cokecan” Thomas, didn’t get to the bench by accident. There is a network of jurists and lawyers called the Federalist Society which recruits right-nutters in law school and prepares them with money, training, recommendations and jobs leading to clerkships, professorial appointments and judgeships. The Right’s co-conspirators in Congress have  declined to approve of judicial appointments made by Democratic Presidents while ramming through wingnuts whenever blessed with a patsy in the White House. The result is the most biased, most ideological and most anti-democratic judiciary in our history. Yes, even worse than then.

Ask yourself when has the Supreme Court ever before the 21st century overturned State election laws in order to appoint their own candidate? When has any Court overturned 100 years of legal decisions to extend a right to carry firearms that even  the Marshal of Dodge City in the old west would not recognize? Or put the kibosh on years of Federal and State regulation of campaign financing so as to effectuate corporate dominance of the electoral process. We don’t have objective judges, we have political stooges disguises in robes.

We’ve got a long fight ahead of us. The first thing we must achieve is the recognition that it is not a series of ad hoc differences of opinion among professionals but rather an incessant counter-revolutionary movement intent on overturning the Revolution of 1776, Jeffersonian democracy, Jacksonian democracy, the struggle for the Union of 1861-65, the Reconstruction of 1866-76, the Populist crusades of the 1870s and 1880s, the good-government reforms of the turn-of-the-century and the New Deal of the 1930s. Once recognized the threat of the new Corporate Feudalism may be faced square on and Democracy given a 50/50 chance of winning.


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