Answer to Question 1
Plea bargaining is not the only way to arrive at a guilty plea. Many defendants plead guilty to
the charges against them even when no bargaining takes place. In an effort to secure a conviction, the prosecutor will start with the most serious charge and work down. That is, the prosecutor may overcharge as a first step in the bargaining process. This negotiation process is much like that of buying a used car at a dealership, in which the dealer usually starts with a ridiculously high price but is willing to negotiate. In the end, however, few buyers end up purchasing a car for its fair market value. The concern with plea bargaining, then, is that the defendant will be encouraged to plead guilty to an offense that is more serious than that for which he or she would be convicted at trial.
Answer to Question 2
Prior to Gideon, the right to counsel did not exist for all individuals. Usually, counsel was provided only for defendants who could afford it. There were occasions prior to the 1960s, however, in which counsel was provided to criminal defendants who could not afford it. For example, the constitutional right of an indigent defendant to be represented by counsel was first announced in Powell v. Alabama (287 U.S. 45 1932). In that case, the Supreme Court reversed the convictions of several indigent defendants who were not represented by counsel at trial.
Significantly, though, the Court based its decision on the Fifth Amendment's due process clause, not the Sixth Amendment:
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