There is no doubt that Gideon v. Wainwright is extraordinary, but in thinking about its uniqueness, we are reminded of "American exceptionalism" and the diametrically opposed meanings that advocates have ascribed to the phrase. Gideon too is exceptional, in both the laudatory and disparaging sense. As we set forth in this Essay, we think Gideon is both a "shining city on a hill" in the world of criminal procedure and something of a sham. We first discuss the extraordinary features of the decision itself, then lay out how it has survived largely intact, unlike virtually all other Warren Court criminal procedure decisions. Then we turn to the bleaker side of the Gideon story, first illuminating how the stingy law of ineffective assistance of counsel renders Gideon's "shining city" illusory for many defendants, and then showing how the routine denial of investigative and expert assistance to indigent defendants further undercuts Gideon's promise. We conclude that the mere presence of an attorney is no panacea for the ills of the twenty-first-century criminal justice system. Unless and until the Supreme Court both significantly raises the bar as to the quality of representation that satisfies the Sixth Amendment right to the effective assistance of counsel and takes action by requiring states to provide more than paltry investigative and expert services to indigent defendants, Gideon will remain an unfulfilled promise.
