Commentary

Is Justice Only for Those Defendants Who Can Pay for It?

For years, I have been reporting on Stephen Bright, this nation’s foremost defender, in and out of court, of Gideon v. Wainwright, the Supreme Court’s 1963 decision that sought to guarantee “fair trials before impartial tribunals in which every defendant stands equal before the law.”

Every defendant.

But as president and senior counsel of the Southern Center for Human Rights in Atlanta, Bright keeps demonstrating, in numerous cases, lectures and debates around the country, the pervasive injustice experienced by too many arrested defendants brought before our courts.

In the June 2013 edition of The Yale Law Journal, Bright, a visiting lecturer at Yale Law School, and Sia Sanneh, a senior fellow in residence at Yale Law School, used their own observations to explain how this pillar of America’s rule of law has degenerated.

In fact, Bright and Sanneh pointed out that “the court also discussed equality before the law in another case decided on the same day as Gideon, reiterating its previous statement that ‘there can be no equal justice’ where the kind of justice a person gets ‘depends on the amount of money he has’ ” (“Fifty Years of Defiance and Resistance After Gideon v. Wainwright,” Bright and Sanneh, The Yale Law Journal, June 2013).

As you follow their indictment of our system of justice, keep in mind whether any of these gross distortions of the law are protested or even mentioned in state and federal political campaigns by candidates of either party — or by those who yearn to be our president.

Consider, for instance, the contrasting resources of defense lawyers and prosecutors:

“The lawyer assigned to defend a poor person usually has little or no time and few resources to investigate the charges and mount a defense. …

“Prosecutors have vast resources and immense power in conducting their inquests and dictating outcomes in the plea bargaining that resolves the overwhelming majority of cases. Governments maintain well-staffed offices specializing in the prosecution of cases. Prosecutors regularly appear in court, and many judges rely on their recommendations on issues ranging from pretrial release to sentencing. … Prosecutors have access to law enforcement agencies to investigate cases and laboratories to conduct scientific tests and present expert testimony.”

And dig this about every defendant who “stands equal before the law”:

Prosecutors “have a power that no other litigant has: the ability to reward witnesses for providing information or testimony by granting immunity from prosecution, dismissing or reducing charges, or informing sentencing judges of cooperation.”

And “they can place informants in the cells of defendants.

“On the other hand, in the overwhelming majority of criminal cases against poor defendants, the defense conducts no investigation whatsoever.”

This next one may disturb you somewhat:

“These vast prosecutorial powers and the ruthless use of them in plea bargaining and determining sentences were upheld by the Supreme Court in Bordenkircher v. Hayes.

“There, a prosecutor offered Paul Hayes a sentence of five years in prison for forging a check for $88.30 and warned Hayes that if he rejected the offer, the prosecutor would file repeat offender papers requiring a mandatory sentence of life imprisonment. Hayes declined the offer, and the prosecutor carried out his threat, obtaining the mandatory life sentence.

“The Supreme Court upheld the prosecutor’s actions, calling them part of the ‘ “give-and-take” of plea bargaining.’”

Is this still America?

As for a defendant’s right to counsel so that he or she may stand equal before the law, Bright and Sanneh proved the Supreme Court was at least right in the case it decided the same day as Gideon, arguing that “the kind of justice people receive depends very much on the amount of money they have.

“It determines whether they have counsel, when they obtain counsel, whether they have access to investigators and expert witnesses, and whether the representation provided is zealous or perfunctory.”

Or worse. Citing previous cases and the work of nonprofit The Constitution Project, Bright and Sanneh wrote:

“Poor people accused of crimes, although entitled to counsel ‘within a reasonable time’ after ‘the initiation of adversary judicial proceedings’ may languish in jail for days, weeks or months after arrest without a lawyer. They do not receive the ‘consultation, thoroughgoing investigation and preparation’ that are ‘vitally important’ from the outset in a case.

“As a result, they may lose their jobs, homes, and means of transportation, even though the charges may later be dismissed …

“An ABA (American Bar Association) report in 2004 reached ‘the disturbing conclusion that thousands of persons are processed through America’s courts every year either with no lawyer at all or with a lawyer who does not have the time, resources, or in some cases the inclination to provide effective representation.’”

And where we once were the land of the free and the home of the brave, “a national study in 2009 found that in misdemeanor cases — which far outnumber felonies and which affect millions of people — judges were encouraging defendants to plead guilty without counsel, prosecutors were talking directly with defendants and convincing them to plead guilty without counsel, defendants were discouraged from asking for counsel because of application fees for a public defender as high as $200, and defense lawyers usually had too many cases to provide competent representation.”

Ah, but there is still some official humanity: “Fees for counsel may be waived in most states that have them, but defendants are often not told that the fee can be waived or that they have a right to a lawyer if they cannot afford one.”

This system must be held up “to public examination until governments are shamed into providing the lawyers that are ‘fundamental and essential’ for fairness and justice.”

How long has it been since government on any level in these cases felt ashamed about these injustices?

Nat Hentoff is a nationally renowned authority on the First Amendment and the Bill of Rights. He is a member of the Reporters Committee for Freedom of the Press, and the Cato Institute, where he is a senior fellow.