The next step in the nationalization of the Bill of Rights concerned the issue of whether criminal procedure protections apply to the states. The Supreme Court was posed with the question of what elements were necessary to ensure a fair trial. In the landmark case, Powell v. Alabama in 1932, the Court incorporated the right to counsel under special circumstances in order to have a fair trial. This case involved nine black, illiterate youths who were accused of raping two women. They were all sentenced to death after three days of trial without adequate lawyers.
This was the first case the Supreme Court had reversed a state criminal conviction and this restricted states' power to control their criminal proceedings. Although Powell did not apply the right to counsel to the states under all circumstances, it did limit power of the states to preserve requirements of due process. This case is important in civil rights history as well as the evolution of constitutional law. It led to a more wide-reaching interpretation of the Fourteenth Amendment with regard to states absorbing the Bill of Right, and expanded the Sixth Amendment right to counsel.
In Johnson v. Zerbst (1936), the court decided that anyone facing felony charges in federal court has the right to an attorney. This expanded the interpretation of the Sixth Amendment as well. A year later in Palko v. Connecticut, double jeopardy was not confirmed a fundamental right in state criminal procedures because as Cardozo stated, this right was not "of the very essence of a scheme in order liberty" (Cortner 3). The Courts are continually defining and expanding the meaning of liberty; however, in this case they claimed that the states' right to control criminal proceedings takes priority.
A 6-3 decision determined that the right to counsel should be determined on a case-by-case basis in 1942 by Betts v. Brady. In other words, the right to an attorney is not a fundamental right necessary to have a fair trial. There was some dissent on this issue because of the small majority and this implies that the Court was still debating over this issue. Betts was a white male of average intelligence and there were no special circumstances in his case. Justice Roberts declared that "appointment to counsel is not a fundamental right essential to a fair trial" (Lewis 116).
Counsel is only required in "serious" cases or under "special circumstances. " This case set the precedent-stare decis-for the next forty years where cases were looked at one-by-one. This case made the process of incorporation very slow and argued for selective incorporation. Over time, Supreme Court justices have had various opinions on how and to what degree the Bill of Rights should be incorporated. Those who were extremely against nationalization, such as Frankfurter, reasoned that total incorporation was not the intent of the founders and would deprive states the opportunity to reform their current governments.
This would also greatly alter every state's criminal procedure, which was originally determined to fall in state governments' domain. Frankfurter also believed in a policy of judicial self-restraint in order to preserve the doctrine of stare decis. Some justices have fought strongly for total incorporation of the Bill of Rights. Black, Murphy, and Douglas urged that everything in the Bill of Rights is fundamental and should all be incorporated. Frankfurter and Black had opposing views of Federalism.
Frankfurter believed that states need independence from the federal government to maintain the relationship of dual sovereignty. On the other hand, Black asserted that states need to be controlled by the national government in order to preserve individual liberties. In Adamson v. California, a divided court ruled that the Fifth Amendment right against self-incrimination did not extend to the state courts. Justice Black dissented saying "one of the chief objects that the provision of the [Fourteenth] Amendment's first section…
were intended to accomplish was to make the Bill of Rights applicable to the states" (Schwartz 209). The 5-4 vote shows that there is not an overwhelming majority on the issue of incorporation of criminal procedure as depicted by the Bill of Rights. The Supreme Court only slightly favors states' rights now, whereas in the late nineteenth and early twentieth century, the courts strongly favored states' rights. A compromise was struck between the two previous incorporation theories and the theory of selective incorporation has been implemented.
In the late 1950s, Cardozo, Warren, and Brennan adopted a policy of applying rights guaranteed by the Bill of Rights to the states one-by-one. This procedure of selective incorporation has been implemented through analyzing concrete cases presented to the Court in order to determine what is a "fundamental right" during the time period the issue is presented. The role of the judiciary is to interpret the Constitution as a reflection of the changes in society, so what is considered "fundamental" today may not have been considered so in the past and some issues have never arisen.
The Courts determined whether issues were "fundamental" through looking at concrete constitutional cases. Most of the amendments have been nationalized; however, not all of them have. Mapp v. Ohio (1961) provided a breakthrough for incorporationists in that the entire Fourth Amendment was incorporated as well as the federal exclusionary rule (Cortner 5). Dolree Mapp was convicted of possessing obscene materials after an illegal police search of her house. She appealed on the basis of free expression and the Fourth Amendment protection of illegal searches and seizures.
The Court concluded that the evidence was illegally obtained and applied the exclusionary rule to the states. This case led to nationalization of several other amendments that supported civil rights such as the right to counsel in the Sixth Amendment. Gideon v. Wainwright is a significant case which overruled Betts v. Brady in order to nationalize the Sixth Amendment right to counsel. Gideon was a white male of average intelligence was a past criminal, and where there were no special circumstances in his case.
He was found roaming around in front of a pool hall that had just been robbed and was arrested. Before his case, he requested that a lawyer be appointed to him because he was poor and could not afford one; however, the court refused to give him a lawyer because Florida state law did not require counsel in non-capital offenses. Gideon went to trial and did his best to defend himself, but an attorney could have made a great difference in the outcome of the case. He was found guilty and sentenced to five years in prison.
Gideon appealed to the Supreme Court, claiming his right to counsel based on the Fourteenth Amendment had been violated, which called for the incorporation of the Sixth Amendment. This amendment had not been previously absorbed because of the emphasis placed on the states' right to control criminal justice. Previous court cases indicate that the court has been moving toward favoring individual liberties through the due process clause over states' rights to control the criminal law, and this factor benefited Gideon.
The Supreme Court selected this case because of the constitutional issue it raised due to the increasing complexity of the judicial system, making lawyers a necessity rather than a luxury (Goldman 2002). The Courts took on the role of correcting the ills of society. Gideon was given a great lawyer named Fortas, who argued that he does not have the responsibility to just win the case, but to get as many justices as possible to agree with him (Lewis 129). It is important to try to persuade the Court to make a unanimous decision because it gives the case more legitimacy and power in society.
Fortas argued that liberty requires the right to an attorney because of the complicated trial system. A critical factor in criminal procedure is the resources, power, and experience of state prosecutors, which gives them an extremely large advantage over ignorant, powerless, poor, and inexperienced defendants. Betts v. Brady was an inconsistent and confusing case because it did not define the "special circumstances" required to obtain a lawyer. Fortas also reasoned that Betts v.
Brady was damaging to federalism because state courts did not know in advance whether a lawyer would have made a difference in the outcome of a case. On the other side, Florida contended that the doctrine of stare decis should be considered, that states should have the right to control criminal justice, and that overruling Betts would release many people from jail. The Supreme Court overturned Betts v. Brady in a unanimous decision to incorporate the Sixth Amendment because the right to an attorney-in serious crimes-is a fundamental right protected by the Constitution.
Gideon's case played a significant role in the process of incorporation. It proves that the Court has taken a new approach to the interpretation of the Constitution and has placed more importance on the rights of individuals rather than states' right to control criminal justice. Previous court cases support an important transition in the views of the Supreme Court. In the late nineteenth and early twentieth century, the court believed that states' rights were fundamental and interpreted cases, like Barron v. Baltimore, in a unanimous or close to unanimous vote.
A unanimous vote gives a decision more legitimacy because more justices agree on the issue. Between 1925 and 1950, cases such as Powell v. Alabama and Betts v. Brady, were more divided, showing a transition to supporting the significance of personal rights. The fact that Fortas was able to convince the Court to all agree on the incorporation of the Sixth Amendment implies that the Court has shifted their opinion on nationalization of the Bill of Rights because society has changed and criminal justice systems have become more complex.
Betts v. Brady was a very similar case to Gideon; however, in 1942, the Court did not all agree on which amendments should be selectively incorporated. Fortas critically argued for a fundamental right to counsel under no special circumstances because no one can be sure whether a lawyer present would have impacted the case. It took over one hundred years since the Fourteenth Amendment was passed to change the criminal justice system because change is difficult.
In the context of enlarged individual rights and political and cultural change, the Court was ready to overturn the Betts decision to incorporate the Sixth Amendment. The Supreme Court is power because it has the power to settle constitutional conflicts between state and national government, and states' and individuals' rights. They can also create law through appellate and original jurisdiction. Through judicial review, the Courts reviewed previous cases to interpret and apply the "Supreme law of the land" (US Constitution), to conform to the Constitution.
This eventually led to the incorporation of the Bill of Rights. Gideon v. Wainwright suggested the profound importance of equal justice under the law and the fundamental right to fair justice. The Supreme Court recognized the fundamental nature of most of the Bill of Rights to protect individuals from state government, which led to the final incorporation of most aspects in the first through eighth amendments. The issue of incorporation of the Bill of Rights endures because where the line should be crossed between individuals and government, as well as federal and state government remains an open issue.