Law, order, and the rights of criminal defendants 139not afford a lawyer (except in cases involving the death penalty, for which the state
would provide a lawyer).^139 This changed in 1963 with the celebrated case of Gideon v.
Wainwright. Clarence Gideon was accused of breaking into a pool hall and stealing beer,
wine, and money. He could not afford an attorney, so he tried to defend himself. He did
a pretty good job—calling witnesses, cross-examining the prosecutor’s witnesses, and
providing a good summary argument. However, he was convicted and sentenced to
five years in jail, based largely on the testimony of the person who turned out to be the
guilty party. The Court unanimously overturned Gideon’s conviction, saying: “In our
adversary system of criminal justice, any person hauled into court who is too poor to
hire a lawyer cannot be assured a fair trial unless counsel is provided for him.”^140
Unlike the exclusionary rule and the protection against self-incrimination, the
right to an attorney has been strengthened over time, through both legislation and
subsequent Court rulings. One year after Gideon, Congress passed the Criminal Justice
Act, which provided better legal representation for criminal defendants in federal
court; within two years, 23 states had taken similar action. The Court has defined a
general right to effective counsel (although the bar is set considerably low in terms of
defining “effective”) and more recently mandated that defense attorneys must conduct
any reasonable investigation into possible lines of defense when presenting evidence
that could help the defendant.^141
The Sixth Amendment also protects an individual’s right to a speedy and public trial
by an impartial jury in criminal cases. The Court affirmed the right to a speedy trial in
19 67,^142 and today under the Federal Speedy Trial Act a trial must begin within 70 days
of the defendant’s arrest or first appearance in court. This law was strengthened by a
2006 Court decision stating that a defendant may not waive the right to a speedy trial.^143
The most important legal disputes over the “impartial jury” issue concern the process
of jury selection and peremptory challenges, in which lawyers from each side may
eliminate certain people from the jury pool without providing any reason. The Court has
ruled that race and gender may not be the basis for a peremptory challenge.^144 The Court
has also made clear that racial bias during jury deliberation is not allowed. Although jury
deliberations are normally secret, in a 2017 case in which Miguel Peña-Rodriguez was
convicted of misdemeanor sexual assault, two jurors told the judge that one of the jurors
had demonstrated a bias against Mexican Americans, saying things like “nine times out
of ten Mexican men [are] guilty of being aggressive toward women and young girls.” In
the majority opinion Justice Kennedy argued that “racial bias in the justice system must
be addressed—including, in some instances, after the verdict has been entered” in order
to “prevent a systemic loss of confidence in jury verdicts, a confidence that is a central
premise of the Sixth Amendment trial right.”^145The Eighth Amendment: Cruel and Unusual Punishment
The Founders would be surprised by the intense debates over whether the Eighth
Amendment prohibition against “cruel and unusual punishments” applies to the
death penalty. Clearly, the death penalty was accepted in their time (even stealing a
horse was a capital offense!), and the language of the Constitution reflects that. Both
the Fifth and Fourteenth Amendments say that a person may not be deprived of “life,
liberty, or property, without due process of law,” which implies that someone could be
deprived of life as long as the state followed due process. The death penalty continues
to be supported by many people in the United States, with 31 states allowing capital
punishment. However, there is a clear overall trend away from the death penalty. Seven
U.S. states have abolished the death penalty since 2007 (and four more states have
moratoriums on the death penalty imposed by their governors, although NebraskaThe fight against terrorism has raised
controversial questions about due
process rights. After the United States
killed Anwar al-Awlaki—an Al Qaeda
leader living in Yemen, and a U.S.
citizen—critics argued that his due
process rights, such as the right to a
fair trial, had been violated.Full_05_APT_64431_ch04_102-147.indd 139 16/11/18 1:31 PM