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MR. JUSTICE BLACK delivered the opinion of the Court
MR. JUSTICE DOUGLAS concurring.
MR. JUSTICE CLARK,
concurring in the result.
MR. JUSTICE HARLAN, concurring.
I agree that Betts v. Brady should be overruled,
but consider it entitled to a more respectful burial than has
been accorded, at least on the part of those of us who were not
on the Court when that case was decided.
I cannot subscribe to the view that Betts v.
Brady represented "an abrupt break with its own well-considered
precedents." Ante, p. 344. In 1932, in Powell v. Alabama,
287 U.S. 45, a capital case, this Court declared that under the
particular facts there presented -- "the ignorance and illiteracy
of the defendants, their youth, the circumstances of public hostility
. . . and above all that they stood in deadly peril of their lives"
(287 U.S., at 71) -- the state court had a duty to assign counsel
for the trial as a necessary requisite of due process of law.
It is evident that these limiting facts were not added to the
opinion as an afterthought; they were repeatedly emphasized, see
287 U.S., at 52, 57-58, 71, and were clearly regarded as important
to the result.
Thus when this Court, a decade later, decided
Betts v. Brady, it did no more than to admit of the possible existence
of special circumstances in noncapital as well as capital trials,
while at the same time insisting that such circumstances be shown
in order to establish a denial of due process. The right to appointed
counsel had been recognized as being considerably broader in federal
prosecutions, see Johnson v. Zerbst, 304 U.S. 458, but to have
imposed these requirements on the States would indeed have been
"an abrupt break" with the almost immediate past. The
declaration that the right to appointed counsel in state prosecutions,
as established in Powell v. Alabama, was not limited to capital
cases was in truth not a departure from, but an extension of,
existing precedent.
The principles declared in Powell and in Betts,
however, have had a troubled journey throughout the years that
have followed first the one case and then the other. Even by the
time of the Betts decision, dictum in at least one of the Court's
opinions had indicated that there was an absolute right to the
services of counsel in the trial of state capital cases. 1
Such dicta continued to appear in subsequent decisions, 2
and any lingering doubts were finally
In noncapital cases, the "special circumstances"
rule has continued to exist in form while its substance has been
substantially and steadily eroded. In the first decade after Betts,
there were cases in which the Court found special circumstances
to be lacking, but usually by a sharply divided vote. 3
However, no such decision has been cited to us, and I have found
none, after Quicksall v. Michigan, 339 U.S. 660, decided in 1950.
At the same time, there have been not a few cases in which special
circumstances were found in little or nothing more than the "complexity"
of the legal questions presented, although those questions were
often of only routine difficulty. 4
The Court has come to recognize, in other words, that the mere
existence of a serious criminal charge constituted in itself special
circumstances requiring the services of counsel at trial. In truth
the Betts v. Brady rule is no longer a reality.
This evolution, however, appears not to have
been fully recognized by many state courts, in this instance charged
with the front-line responsibility for the enforcement of constitutional
rights. 5 To continue a rule
which is honored by this Court only with lip service is not a
healthy thing and in the long run will do disservice to the federal
system.
The special circumstances rule has been formally
abandoned in capital cases, and the time has now come when it
should be similarly abandoned in noncapital cases, at least as
to offenses which, as the one involved here, carry the possibility
of a substantial prison sentence. (Whether the rule should extend
to all criminal cases need not now be decided.) This indeed does
no more than to make explicit something that has long since been
foreshadowed in our decisions.
In agreeing with the Court that the right to
counsel in a case such as this should now be expressly recognized
as a fundamental right embraced in the Fourteenth Amendment, I
wish to make a further observation. When we hold a right or immunity,
valid against the Federal Government, to be "implicit in
the concept of ordered liberty" 6
and thus valid against the States, I do not read our past decisions
to suggest that by so holding, we automatically carry over an
entire body of federal law and apply it in full sweep to the States.
Any such concept would disregard the frequently wide disparity
between the legitimate interests of the States and of the Federal
Government, the divergent problems that they face, and the significantly
different consequences of their actions. Cf. Roth v. United States,
354 U.S. 476, 496-508 (separate opinion of this writer). In what
is done today I do not understand the Court to depart from the
principles laid down in Palko v. Connecticut, 302 U.S. 319, or
to embrace the concept that the Fourteenth Amendment "incorporates"
the Sixth Amendment as such.
On these premises I join in the judgment of
the Court.
---- Begin EndNotes ----
1 Avery v. Alabama, 308 U.S. 444, 445.
2 E. g., Bute v. Illinois, 333 U.S. 640, 674; Uveges v. Pennsylvania, 335 U.S. 437, 441.
3 E. g., Foster v. Illinois, 332 U.S. 134; Bute v. Illinois, 333 U.S. 640; Gryger v. Burke, 334 U.S. 728.
4 E. g., Williams v. Kaiser, 323 U.S. 471; Hudson v. North Carolina, 363 U.S. 697; Chewning v. Cunningham, 368 U.S. 443.
5 See, e.
g., Commonwealth ex rel. Simon v. Maroney, 405 Pa. 562, 176 A.
2d 94 (1961); Shaffer v. Warden, 211 Md. 635, 126 A. 2d 573 (1956);
Henderson v.
Bannan, 256 F.2d 363 (C. A. 6th Cir. 1958).
6 Palko
v. Connecticut, 302 U.S. 319, 325.
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