Race, Poverty, and the Right to Counsel
The Sixth and Fourteenth Amendments guarantee a person facing criminal prosecution the right to aid of a lawyer in preparing and presenting his or her defense. In Gideon v. Wainwright, 1963, the Supreme Court declared the right to a lawyer “fundamental and essential” to fairness in the criminal courts and held that lawyers must be provided for people who could not afford a lawyer so that every person “stands equal before the law.” Further, the Court has explained that “the right to counsel is the right to effective assistance of counsel.” However, as Professor Bright points out, [f]ifty years after Gideon, the right to counsel and equal justice are as much a fiction as the adversary system. Additionally, the American Bar Association reports that “thousands of persons are processed through America’s counts every year either with no lawyer at all of with a lawyer who does not have the time, resources, or in some cases the inclination to provide effective representation.
One of the devastating realities of our criminal justice system is this: frequently, poor people and racial minorities are the sacrificial lambs for our legal system’s imperfections. This manifest itself in various forms, from racialized policing to the disproportionate incarceration of Black and Brown people in our nation’s prions. Today, over 2.2 million people are in our jails and prisons, disproportionately African-Americans and Latinos. Then, once arrested and jailed, state and local governments fail, significantly, to provide poor people with access to quality legal representation. Poor people facing prosecution do not have a chance for defend their lives in the courtroom. This approach offends the legal system’s foundational principle: equal justice under law. Today, in courtrooms across this country, fifty years after Gideon — the Supreme Court’s mandate to states to provide counsel to the poor — the right to counsel has been largely ignored.
During college, I spent the summer as an intern with the Innocence Project New Orleans, Louisiana. That summer, I met men who spent almost half their lives in prison for crimes they did not commit. These men’s experiences augmented my understanding of the deficiencies that lead to wrongful imprisonment, among them, ineffective assistance of counsel. Often, like today, this is because public defender systems are terribly underfunded. This, in turn, require lawyers to represent more people than is ethically and humanly possible, increasing the likelihood of wrongful convictions and imprisonment. Still, New Orleans and Louisiana are not unique. As Professor Bright noted, “the representation received by [the poorest] people accused of crimes — if they receive any at all — is a far cry from the constitutional requirement of the ‘the guiding hand of counsel at every step in the proceedings,’ which was established by Gideon v. Wainwright and its progeny.”
Despite the heroic efforts of lawyers at the Orleans Public Defenders, the right to counsel for poor people in the New Orleans is a constitutional crisis. The office has refused to take on new felony cases because it says the office is so understaffed and overwhelmed that it can longer fulfill its constitutional mission: to provide legal representation to the city’s poor. The problem in New Orleans and Louisiana, as is true in other localities: funding. Since 2012, the office’s budget has been slashed from $9.5 million to $6 million, including $700,000 in new cuts this year. Significantly, caseloads at the officer have become “so onerous that the lawyers can spend only seven minutes preparing for each of their cases.” I seriously doubt that seven minutes of legal representation is consistent with the constitutional requirement of “the guiding hand of counsel at every step in the proceedings.”
Moreover, Louisiana spends nearly $3.5 billion a year to investigation, arrest, prosecute, adjudicate and incarcerate its citizens. Only 2 percent of that is spent on legal representation for poor people. Further, poor people must pay $40 to apply for representation, and an additional $45 if they plead guilty or are found guilty.
The same is true for many poor people facing prosecution across the state. The New York Times points out: “The constitutional obligation to provide criminal defense for the poor has been endangered by funding problems across the country, but nowhere else is a system in statewide free fall like Louisiana’s, where public defenders represent more than eight out of 10 criminal defendants.” Additionally, public defender offices throughout the state have been forced to lay off lawyers, leaving those who remain with caseloads well into the hundreds. In seven of the Louisiana’s 42 judicial districts, poor defendants are being put on wait lists; in the 15th judicial district, for example, the list is over 2,300 names long and growing. As the saying goes, justice delayed is justice denied.
In our juvenile and criminal justice systems, race and poverty significantly determines outcome. In fact, there are important cause and effect relations between race and poverty. It’s undeniable and ethically inexcusable that for indigent and racial minorities in our justice systems, both historically and within our contemporary society, the right to counsel is violated almost daily.
More than 150 years ago Fyodor Dostoyevsky brilliantly observed, “the degree of civilization in a society can be judged by entering its prisons.” Today, this also means going to the criminal courts to observe how poor people are processed in the system, frequently without quality legal representation. Our system for public defense is in distress and in need of serious reform.
We must take seriously the issue of the right to counsel for poor people in the criminal justice system. As Derwyn Bunton, chief defender for Orleans Parish, in Louisiana, points out, states “need to arrange adequate and stable financing based on reasoned projects of the workload.” Lawyers should not be required to represent more people than is humanly and ethically impossible, especially in felony cases. Additionally, at Professor Bright’s suggestion, the public, bar associations, and lawyers should be the primary advocates in state legislatures for full funding for adequate public defender systems. Only when adequate funding is provided for legal representation for poor defendants will Gideon’s promise be fulfilled.
Equal justice for the poor requires a strong commitment for the right to competent legal representation and equal justice for indigent people, racial minorities, juvenile offenders, condemned prisoners, and those wrongly convicted in our legal systems.
