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April 18, 2013

"Race and the Disappointing Right to Counsel"

The title of this post is the title of this notable new article by Gabriel (Jack) Chin now available via SSRN. Here is the abstract:

Critics of the criminal justice system observe that the promise of Gideon v. Wainwright has been unfulfilled.  They decry both the inadequate quality of representation available to indigent defendants, and the racially disproportionate outcome of the process.  Some hope that better representation can help remedy the gross overrepresentation of minorities in the criminal justice system.  This essay is doubtful that better lawyers will significantly address that problem.

When the Supreme Court decided Gideon, it had two main purposes.  First, it intended to protect the innocent from conviction.  This goal, while imperfectly achieved at best, was explicit.  Since Gideon, the Court has continued to recognize the importance of claims of innocence at trial, with important, pro-defense decisions in the areas of confrontation, jury fact-finding, the right to present a defense and in other areas.

The Court's second goal was to protect African Americans subject to the Jim Crow system of criminal justice.  But, as it had in Powell v. Alabama, the Court pursued this end covertly and indirectly; the Court attempted to deal with racial discrimination without explicitly addressing it.  This timidity was portentous.  Gideon did not mark the beginning of a judicial project to eliminate race from the criminal justice system root and branch; three years after Gideon, the Court allowed prosecutors to exercise peremptory challenges of jurors based on race.  Since Gideon, the Court has made it practically impossible to invoke racial bias as a defense; so long as those charged are in fact guilty, discrimination in legislative criminalization, in enforcement and in sentencing practices are essentially unchallengeable.

Since Gideon, racial disproportionality in the prison population has increased.  Not only might Gideon not have solved the problem, it may have exacerbated it.  To the extent that Gideon improved the quality of counsel available to the poor, defense lawyers may be able to obtain favorable exercises of discretion in investigation, prosecution and sentencing for indigent white defendants that they cannot for clients of color.  For these reasons, racial disparity likely cannot be remedied indirectly, with more or better lawyers. Instead, the remedy lies in directly prohibiting discrimination, and having fewer crimes on the books, fewer arrests, and fewer prosecutions.

I am very pleased to see Jack Chin's willingness to note not only that Gideon may not have solved the problem of a racialized criminal justice system, but even that Gideon "may have exacerbated it."  In many ways, Jack's piece here is another articulation of this recent provocative New York Times op-ed by Paul Butler last month, headlined "Gideon’s Muted Trumpet," which highlighted various ways in which the modern criminal justice evolved for the worse during half century after Gideon became the law of the land.  And I echoed another variation on these ideas when I asked in this post, "Did Gideon enable the war on drugs, the sentencing severity revolution and modern mass incarceration?."

I do not surmised that Jack or Paul are saying, and I know that I am not saying, that Gideon was wrongly decided or that our current criminal justice system would be better without Gideon.  But I do think we are all eager to encourage reflection on the reality that there may be a lot more wrong with our modern criminal justice systems than poor funding and poor functioning of some defense lawyers. 

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April 18, 2013 at 04:53 PM | Permalink


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"First, it intended to protect the innocent from conviction. This goal, while imperfectly achieved at best, was explicit. Since Gideon, the Court has continued to recognize the importance of claims of innocence at trial, with important, pro-defense decisions in the areas of confrontation, jury fact-finding, the right to present a defense and in other areas." No.

The lawyer dumbasses on the Supreme Court freed a totally guilty person when Gideon got to hire the slickest Florida criminal lawyer at government expense. He declined the help of the amateurish ACLU. He got off Scot free after being picked up at the scene of a break in of a cigarette machine with $23 in quarters in his pocket. The real aim of Gideon is to get guilty people free, using loopholes that require lawyer training.

Gideon is a landmark case in lawyer rent seeking. If in rent seeking, one takes tax money, and one returns nothing of any value, this case is the poster for the rent. The public defender is basically a salesman for the prosecutor plea offer. The defendant can negotiate better without getting bullied by his own lawyer. If he public defender goes to trial, the chance of success is lower than if the defendant goes pro se. No value is added by these worthless rent seekers.

Posted by: Supremacy Claus | Apr 18, 2013 9:08:46 PM

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