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Landmark Cases of the U.S. Supreme Court

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Key Excerpts from the Concurring Opinions

Justice Clark wrote a concurring opinion

. . . .

That the Sixth Amendment requires appointment of counsel in "all criminal prosecutions" is clear, both from the language of the Amendment and from this Court's interpretation. . . . It is equally clear from the above cases, all decided after Betts v. Brady, . . .(1942), that the Fourteenth Amendment requires such appointment in all prosecutions for capital crimes. The Court's decision today, then, does no more than erase a distinction, which has no basis in logic and an increasingly eroded basis in authority.

. . . .

I must conclude here . . . that the Constitution makes no distinction between capital and noncapital cases. The Fourteenth Amendment requires due process of law for the deprival of "liberty" just as for deprival of "life," and there cannot constitutionally be a difference in the quality of the process based merely upon a supposed difference in the sanction involved. How can the Fourteenth Amendment tolerate a procedure which it condemns in capital cases on the ground that deprival of liberty may be less onerous than deprival of life—a value judgment not universally accepted or that only the latter deprival is irrevocable? I can find no acceptable rationalization for such a result, and I therefore concur in the judgment of the Court.

Questions to Consider
  1. Justice Clark agrees with the other justices that Betts v. Brady should be overturned. However, he cites a different reason. What reason does he give? 
  2. Do you agree or disagree with Justice Clark's reasoning? Explain. 

Justice Harlan wrote a concurring opinion

. . . .

. . . In 1932, in Powell v. Alabama, . . . 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"—the state court had a duty to assign counsel for the trial as a necessary requisite of due process of law.

. . . .

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 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.

. . . .

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.

. . . .

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" 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.

. . . .

On these premises I join in the judgment of the Court.

Questions to Consider
  1. What are Justice Harlan's beliefs regarding "special circumstances?" 
  2. Some people believe that the passage of the Fourteenth Amendment meant that all of the rights in the Bill of Rights applied to the states, and not just the federal government. Why is Justice Harlan hesitant to make this generalization?

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