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Vol. VIII, No. 2
March, 1963

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Rich and Poor in the Criminal Courts

There are in our country today rich and poor as well as middle class Americans. Individuals from all classes become defendants in criminal cases. While it is the job of economists to plan a society in which there will be no poor, and the job of educators, sociologists, employers, psychologists and penologists to prevent crime and rehabilitate criminals of all classes, it the the peculiar responsibility of the legal profession to ensure that poor as well as rich and middle Americans are accorded due process of law and equal protection of the law.

The concept of due process grows out of centuries of Anglo-American history, and the concept of equal protection has been emphasized off and on for 100 years in America. But it is only within the past few years that the United States Supreme Court has begun to struggle consistently to achieve true equal protection for indigents enmeshed in criminal procedures.

From Griffin v. Illinois (1956) and Eskridge v. Washington (1958), the Court has moved step by step to the seven decisions handed down March 18, 1963: Gideon v. Wainwright, 372.19 on right to counsel; Fay v. Noia, 452.1, Jones v. Cunningham, 452.5, and Townsend v. Sain, 452.6 on habeas corpus; and Douglas v. California, 374.18, Lane v. Brown, 374.17, and Draper v. Washington, 374.19, on appeals by indigent prisoners. The transition has not been easy. Only 3 decisions were unanimous; 2 were 5-4 and 2 were 6-3. The dissenters were Justices Clark, Harlan, Stewart, and sometimes White.

Nonetheless, the Court has now said, quite clearly and unanimously, that an indigent is entitled to counsel in non-capital state cases because the Sixth Amendment provision that "In all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defense" has been carried into the Fourteenth Amendment and made applicable to the states. (Gideon.)

The Court has also said, not quite so clearly or unanimously, that an indigent is entitled to assistance of counsel on some state appeals (Douglas) and to a free transcript or other record of trial for state appeal (Draper). He is also entitled to full federal appellate review of state court denial of coram nobis relief (Lane). And he is entitled to these because a "rich" defendant can take advantage of these procedural safeguards merely because he can afford them.

The Court also said, 5-4, that justice must be done in the state courts and that if it is late when the defendant seeks justice, he is still entitled to it if there are sufficient reasons for his failure to file the proper papers at the proper time (Noia). Requirements for the exhaustion of remedies prior to applications for federal habeas corpus have been modified.

"Fundamental Principles" and the 14th Amendment

Justice Black took the occasion of his opinion for a unanimous Court in Gideon, 372.19, to set forth how far the Court has come in incorporating the Bill of Rights in the Fourteenth Amendment: "Explicitly recognized to be of this "fundamental nature" and therefore made immune from state invasion by the Fourteenth, or some part of it, are the First Amendment's freedom of speech, press, religion, assembly, association, andpetition for redress of grievances. For the same reason, ... the Court has made obligatory on the States the Fifth Amendment's command that private property shall not be taken for public use without just compensation, the Fourth Amendment's prohibition of unreasonable searches and seizures, and the Eighth's ban on cruel and unusual punishment. . . . [And] the Court in Betts was wrong . . . in concluding that the Sixth Amendment's guarantee of counsel is not one of these fundamental rights."


This issue reports all decisions and other changes in the status of pending cases reported in the last issue, as well as describing all new cases filed since then.

However, as an economy measure in this issue only, pending cases in which there have been no developments since the last issue are not listed.


On March 2, 1963, the CIVIL RIGHTS & LIBERTIES HANDBOOK was published by the National Lawyers Guild. It has been hailed by many constitutional lawyers as a useful, practical book.

The HANDBOOK is a looseleaf notebook divided into nine sections: I. Introduction; II. Special Problems in Civil Liberties and Rights Litigation; III. State Criminal Cases; IV. Special State Proceedings; V. Civil Suits in Federal Courts; VI. Appeals in Federal Courts; VII. Forms by Subject Matter—Specific Civil Liberties and Rights (following the DOCKET numbering system); VIII. Digest of Civil Liberties & Rights Citations—2,500 cases with citations to official reports, DOCKET and Race Relations Law Reporter, listed by DOCKET categories; IX. Index to Forms and to the HANDBOOK.

Osmond K. Fraenkel and Prof. Thomas I. Emerson acted as consultants on the HANDBOOK. 45 practicing attorneys contributed sample forms, trial techniques and discussions.

The major emphasis in the first 400 pages is on procedures applicable to all constitutional litigation, such as class suits, 3-judge courts, injunctive relief, and on civil rights and integration cases, north and south. Future supplements will be sent to HANDBOOK subscribers discussing recent Supreme Court opinions on the right to counsel, habeas corpus and appellate procedures for indigents, and will present more information and forms on civil liberties questions.

Box 673, Berkeley 1, California Date_____
Enclosed please find my check for $10.30 (incl. postage)* for one copy of CIVIL RIGHTS & LIBERTIES HANDBOOK: PLEADINGS & PRACTICE.