This article was originally published on The New York Times by Paul Butler on March 17, 2013.
FIFTY years after the Supreme Court, in Gideon v. Wainwright, guaranteed legal representation to poor people charged with serious crimes, low-income criminal defendants, particularly black ones, are significantly worse off.
Don’t blame public defenders, who are usually overwhelmed. The problem lies with power-drunk prosecutors — I know, because I used to be one — and “tough on crime” lawmakers, who have enacted some of the world’s harshest sentencing laws. They mean well, but have created a system that makes a mockery of “equal justice under the law.” A black man without a high school diploma is more likely to be in prison than to have a job.
A poor person has a much greater chance of being incarcerated now than when Gideon was decided, 50 years ago today. This is not because of increased criminality — violent crime has plunged from its peak in the early 1990s — but because of prosecutorial policies that essentially target the poor and relegate their lawyers to negotiating guilty pleas, rather than mounting a defense.
After Gideon, things got better for poor defendants in the short term. Thousands who had not had lawyers at trial were released from jail. Many states and localities created public defenders’ offices. But political and legal developments soon eroded those achievements.
The so-called war on crime greatly expanded criminal liability. A prosecutor can almost always find some charge: there are over 4,000 crimes on the federal books alone. Recreational drug use is one of the more popular activities in America, but racial minorities suffer the brunt of drug-related convictions.
In part because of federal grants to states to incarcerate drug offenders, the United States experienced the largest increase in incarceration in the history of the free world. Our population is less than 5 percent of the world’s but we have nearly 25 percent of its prisoners. When Gideon was decided, about 43 percent of defendants were indigent. Now, over 80 percent are.
Since Gideon, the court quickly moved backward on defendants’ rights. Perhaps the greatest setback was Bordenkircher v. Hayes, decided in 1978. The defendant was accused of passing a bad check for $88.30. The prosecutor warned that if he turned down a plea offer of five years, the prosecutor would pursue a life sentence, under a repeat-offenders statute. The defendant opted for a jury trial and, sure enough, got a life sentence. The court ruled that while prosecutors had the authority to offer such draconian deals, that power “carries with it the potential for both individual and institutional abuse.”
Ruling on Texas’ “three strikes” law in 1980, the court upheld a life sentence for a man who refused to return $120.75 he’d been paid to repair an air-conditioner.
In 2000, it ruled that if the police see someone running from them in a high-crime neighborhood, they can detain him, even if they have no reason to suspect him of a crime.
Today over 90 percent of accused people plead guilty. It’s rational, because the costs of being wrong are just too high. As a young prosecutor, I enjoyed having all this power. I worked on a case against a property clerk who was stealing supplies from a government office. We set up a sting, in which an undercover agent acted as a buyer of stolen merchandise. Each time the clerk committed to selling more stolen goods, his potential sentence increased by five years. We got the guilty plea we wanted.
The Supreme Court has famously stated that the prosecutor’s interest “is not that it shall win a case, but that justice shall be done.” In our adversarial system, however, those are just words on paper. Gideon, meanwhile, is an underfunded mandate. Some public defenders are forced to juggle over 2,000 cases per year, as the journalist Karen Houppert found in a new book, “Chasing Gideon.”
The law professor Angela J. Davis has recommended that prosecutors conduct “impact studies” of their policies’ social and racial consequences. New York State provides a beacon of hope: over the last decade, it has reduced both its crime rate and its inmate population.
The Supreme Court recently extended Gideon’s reach to the plea bargaining process, a potentially encouraging development. But, as the federal judge Jed S. Rakoff has written, the main problem is not defense lawyers’ “ineffectiveness” but prosecutors’ “overconfidence.”
Poor people lose, most of the time, in our criminal justice system not just because indigent defense is inadequately financed, although it is, and not because public defenders are ineffective, although some are. They lose because prosecutors and lawmakers treat them like losers. That is the real crisis of American indigent defense.