In 1963 to a poor petty criminal in Florida reached out to our nation’s highest court on appeal, claiming that he had been wrongly denied his right to legal counsel. Clarence Earl Gideon in the landmark decision Gideon v. Wainwright won his appeal, resulting in the extension of the right to counsel to all Americans. In theory the right of counsel should create a fairer court allowing for the punishment of those convicted under it to be justified. Unfortunately, fifty years after Gideon, procedural conditions in the extensions of adequate counsel render retributivism largely inapplicable to the current state of the US court system as it cannot justify punishment.
The Retributive Theory of ...view middle of the document...
Kant is careful to emphasize that in the system all persons must be treated the same despite disparity in wealth (Kant 145)
Kant’s retributive theory was in response to the utilitarian based Deterrence Theory, which justified, “punishment in terms of social results e.g., deterrence incapacitation, and rehabilitation” (Murphy 630). Under utilitarianism the, “punishment of an innocent man in order to bring about good social consequences … [could] at very least not always be wrong” (Murphy 630). For example, if imprisoning one inncoent person would deter ten others from committing a crime the utilitarian would say that the punishment is justified as brings about the social good of deterrence. Kant took objection to this concept arguing that punishment “can never be inflicted merely as a means to promote some other good for the criminal himself or for civil society” (Kant 104). Kant’s Categorical Imperative is violated as a person is not being treated, “as a means, but always at the same time as an end” (Kant 96).
Under the retributivism if a person is not guilty and they are punished a violation has occurred. The lack of proper counsel has caused this to occur an innumerable amount of times. To understand this an investigation into the right to counsel in the United States pre-Gideon is first necessary. The Assistance of Counsel Clause of the Sixth Amendment to the United States Constitution provides: "In all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence.” The application of this clause to criminal proceedings has not always occurred.
The right of counsel was extended was in Powell v. Alabama. The application occurred after nine black men were sentenced to death in rural Alabama. The defendants were only given access to their lawyers immediately prior to the trial, leaving little or no time to plan a defense. The Supreme Court reversed the decisions partly because under the Due Process Clause of the Fourteenth Amendment the defendant, “were denied the right of counsel, with the accustomed incidents of consultation and opportunity for trial” (Powell). From this ruling followed that “in a capital case, where the defendant is unable to employ counsel, and is incapable adequately of making his own defense because of ignorance, feeble mindedness, illiteracy, or the like, it is the duty of the court, whether requested or not, to assign counsel for him” (Powell). In Johnson v. Zerbst the court extended the right to counsel in all federal cases (Johnson). The Court in Betts v. Brady ruled that counsel was not required in state level cases.
During this tumultuous history the ability of the legal system to dole out fair and equitable punishment was greatly diminished. Hugo Black in dissent in Betts v. Brady perhaps best summarizes the problem writing that the current practice of not providing counsel to the poor, “cannot be reconciled with ‘common and fundamental ideas...