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The underlying principle of fair trial, that it should be a truth-seeking contest between equal adversaries, has also been undermined by the cost of competent legal aid. Until 1963, when the Supreme Court's celebrated Gideon v. Wainwright ruling established the absolute right to counsel in serious criminal proceedings under state jurisdictions, the great majority of defendants had no lawyers because they could not afford them (60% still cannot). A disproportionate number of people wound up in jail or on death row largely because they happened to be poor, undefended and ignorant of their rights. In short, criminal justice remained, as the highly conservative William Howard Taft—later Chief Justice—described it in 1905, "a disgrace to our civilization."
What is now under way is a concerted effort by the Supreme Court to make the Bill of Rights a reality for all Americans. A landmark in this process occurred in the 1947 case of Adamson v. California, when the court debated whether state courts should be bound by the Fifth Amendment's provision that a defendant may not be forced to testify against himself. Four Justices argued that the 14th Amendment's due-process clause was a form of "shorthand" for all the guarantees spelled out in the first eight amendments, and that the Bill of Rights thus applied to the states. To give the states greater latitude, however, a five-man majority ruled that state courts would violate due-process only by action that "shocks the conscience" or otherwise imperils "ordered liberty."
All the same, on a case-by-case basis, most of the crucial provisions of the Bill of Rights have since been applied to the states as binding standards under the 14th Amendment.
In Mapp v. Ohio, the Supreme Court ruled in 1961 that state courts must enforce the Fourth Amendment's guarantee against "unreasonable searches and seizures" by excluding illegal evidence, thus forcing state and local police to use judge-approved warrants for the first time in U.S. history. The Gideon decision invoked the Sixth Amendment to establish the right to counsel of all indigents accused of felonies—a decision that may be held to apply to misdemeanor cases as well. In other recent cases, the Supreme Court has also extended to the states the Fifth Amendment guarantee against self-incrimination and the Sixth Amendment right of the accused to cross-examine his accuser.
These rulings have inevitably stirred cries that the Supreme Court is "opening the jailhouse doors" to hundreds of prisoners whose convictions may be nullified retroactively. In an important decision last month (Linkletter v. Louisiana), the court answered much of the criticism by holding that retroactivity depends on each decision's purpose. When a ruling concerns the right to counsel, as in Gideon, it is likely to be made retroactive, because it raises new questions about the prisoner's actual guilt. By contrast, the court refused to make Mapp retroactive because that decision had what lawyers call the "prophylactic" purpose of deterring lawless police action in the future.