Unequal Justice

By James Kwak

If I write about a legal matter on this blog, it usually involves battalions of attorneys on each side, months of motions, briefs, and hearings, and legal fees easily mounting into the millions of dollars. That’s how our legal system works if, say, you lie to your investors about a synthetic CDO and the SEC decides to go after you—even if it’s a civil, not a criminal matter.

But most legal matters in this country don’t operate that way, even if you face the threat of prison time (or juvenile detention), and all the collateral consequences that entails (ineligibility for public housing, student loans, and many public sector jobs, to name a few). Theoretically, the Constitution guarantees you the services of an attorney if you are accused of a felony (Gideon v. Wainwright), misdemeanor that creates the risk of jail time (Argersinger v. Hamlin), or a juvenile offense that could result in confinement (In re Gault). The problem is that this requires state and counties to pay for attorneys for poor defendants, which is just about the lowest priority for many state legislatures, especially those controlled by conservatives.


In Crisp County, Georgia, home of the Cordele Judicial Circuit, this just doesn’t happen. In 2012, for example, there were 681 juvenile delinquency and unruly behavior cases. The public defenders handled only 52 of those cases, and we know that most of the defendants couldn’t have afforded private attorneys. The result is hundreds of guilty pleas resulting in detention by children who have no idea what their rights are.

We know this because of a lawsuit (complaint; summary by Andrew Cohen) brought by the Southern Center for Human Rights. (I am a member of the SCHR’s board of directors.) This is not an isolated case. The SCHR alone has repeatedly sued the state of Georgia for underfunding its public defender system to the point where defendants lack any reasonable semblance of representation. This problem is not confined to less-serious cases (which are, of course, still extremely serious to the person facing time in prison). In Alabama, for example, state law limits the amount that can be spent on a court-appointed lawyer to $1,500—for death penalty appeals. (That’s $1,500 total, not $1,500 per hour, for those of you who work on Wall Street.)

At one end of our legal system, it’s too hard to hold anyone responsible for blowing up our financial system and costing 8 million Americans their jobs. At the other end, we are shuttling thousands of young people into detention and prison (and forcing them to pay fees for the public defenders who don’t show up at their hearings) because we can’t be bothered to pay decent lawyers. Something is wrong here?

12 responses to “Unequal Justice

  1. And then look at civil law. While the consequences of the problems in that system are not usually as awful as the failures of public defense in criminal law, they are real and painful.

  2. Its obvious to me that law firms are highly over paid, that, along with poor lawmaking, makes for quite an expensive juggling experience. Can you say “consequences”.

  3. The poor are criminalized in the US particularly people of color. We live in a shameful society that perpetuates violence at home and around the globe and worships money and greed.

  4. . . . and forcing them to pay fees for the “public defenders” who don’t show up at their hearings.

    Don’t you think you’re painting with too broad a brush. You’ve condemned an entire segment of the legal profession and accused them of malpractice. There are a lot of hard working, dedicated attorneys out there – both public defenders and those who represent indigent clients pro bono – representing the interests of their clients who are not in it for the money. In this case the rhetoric overstates the point.

  5. We need to downsize the prison system. Maybe it takes an Industrial Policy and a jobs policy. Far too many of the victims are young black and brown kids. Recently an article in the Nation entitled “Dollars for Collars” detailed how cops were targeting young kids at the end of their shift to collect OT pay. They preferred clean high school age kids as opposed to drunks and junkies who might puke on them. The whole rage to punish is not good for society or the economy. Imagine if your kids record was the result of some cop just looking to make some extra overtime pay. Collars for Dollars is the real crime.

  6. I remember reading an article a year to two ago regarding the lack of a competent public defender. Many have little or no trial experince and are handling 100s or more cases at the same time. The Michigan ACLU’s “FACES of FAILING PUBLIC DEFENSE SYSTEMS: Portraits of Michigan’s Constitutional Crisis” documents nearly $13 million in wasted taxpayer dollars and decades in wasted time as it tells the stories of thirteen people failed by Michigan’s network of county-based public defense systems.

  7. It happens all the Craig, The cops are instructed to sit at local the mcdonalds and wait for you to brush the curb with a tire so they can make an arrest. Then you get a whipper snapper councilor who wants to charge $500 an hour and keep the case going when the limits were set low to encourage such behavior. No job any where, is worth $500 per hour,

  8. Lewis: I didn’t mean to impugn public defenders in general. In most places, public defenders are better lawyers than the court-appointed alternative, and it is generally a good thing when a state moves to a public defender system. And, as they say, several of my friends are public defenders (and I spent one summer working in a public defender office, albeit a specialized one working on death penalty cases).

    I did take out the quotation marks in response to your comment.

  9. Yes James, I have so many people on death row right now that, I don’t even know where to begin, sort of.

  10. Disambiguating

    Respective to capital punishment, Washington State’s Governor uses a novel, temporary solution: all capital punishment internees given reprieve until our state Governor ends his last term in that office. That answers the question, how much justice can you afford?

  11. Yes, something is definitely wrong. And it seems to be getting worse, not better. Another unfortunate consequence of elite capture of the system in general? Unfortunate is an understatement; this is devastating to the individual lives caught up in this unfair system.

  12. The entire judicial system is corrupt, owned, controlled, manipulated by the predatorclass. The predatorclass is shielded, protected, immunized, excused, and removed from any semblance of that thing called justice, the socalled ruleoflaw, and accountability for endemic and systemic criminal activity. While the 99%, particularly our minority sisters and brothers are ruthlessly victimized and punished by a system that is in every measurable way unjust! Bobby Jindels wife is one of the most venal criminals in this nationwide abuse, wherein predatorclass oligarchs populate our prison industrial complex with innocent, or minor offenders for PROFIT!!!! PROFITEERING of the predatorclass fills our prison industrial complex. Amerika incarcerates more people than Russia or China, and these are not ratio, but actual numbers . PROFITEERING fills our prison industrial complex with more citizens than nations with three times Amerika’s population

    The rank abuses of the prison industrial complex are manifold and well documented. So to is the insidious militarization of the pigs – I mean the predatorclass thugs – I mean the socalled police! Again – the rampant increase in abuses and murder of unarmed citizens by our socalled police are systemic and equally well documented.

    Since there is no real justice, and only a corrupt and criminal legal system that shields and excuses and immunizes the superrich – the predatorclass on one hand – and ruthlessly punishes and incarcerates the 99% on the other – in practical reality – there is no justice. There is no law!!!! In a world where there are no laws – there are no laws for anyone predatorclass biiiiaaatches!!!’

    Burn it all down! Reset! It’s the only hope for that thing called justice!!’