FREE ESSAY ON POOR AND THE JUSTICE SYSTEM

POOR AND THE JUSTICE SYSTEM

In 1963, the Supreme Court ruled in Gideon v. Wainwright that every criminal defendant has
a right to have an attorney. The poor are appointed an attorney normally known as a
public defender to defend them. The poor are given substandard representation in courts
due to lack of funds and a broken criminal justice system.
The criminal justice system has made strides forward. "The Sixth Amendment right to
counsel was generally understood as guaranteeing criminal defendants the right to hire
their own counsel if they could afford to do so. The Supreme Court has since ruled,
however, that in both federal cases (Johnson vs. Zerbst 1938) and state cases (Gideon vs.
Wainwright, 1963), the government must provide counsel to represent criminal defendants
who cannot afford to hire counsel on their own, and that the right to counsel is
guaranteed regardless of how short the defendant's term of imprisonment may be if
convicted (Argersinger vs. Hamlin, 1972)". Warren Burger, The Washington Times, December
22, 1991. 
The Supreme Court acknowledges that the constitutionally required counsel must provide
effective assistance, court decisions have provided only halfhearted enforcement of the
requirement of effectiveness. The counsel is presumed to be effective once a member of
the bar. The court has held that neither gross inexperience nor unfamiliarity with
criminal practice is enough to support a finding of ineffectiveness. The courts refuse to
mandate even the most elementary steps in effective case preparation, such as
interviewing the client or witnesses. Instead, the courts judge ineffectiveness under the
totality of the circumstances in each case.
In one case, Judge Henry Friendly, writing for the U.S. Court of Appeals for the Second
Circuit, held that a lawyer was not ineffective even though he had slept through a
portion of a witness's cross-examination. Judge Friendly simply speculated that the
witness's testimony probably was not very important because "if it had been, (the trial
judge) would have awakened him." 
Chief Justice Warren Burger, from the opposite end of the political spectrum, has been
similarly critical of performance by defense attorneys. Incompetence is overlooked
because to do otherwise would bring the criminal justice system to a standstill. There
are some jurisdictions that require all attorneys that belong to the bar to serve pro
bono publico. This is to donate time for the poor. The courts have recognized the
connection between economics and the incentives for vigorous defense. Chief Justice
Joseph Weintraub once wrote for the New Jersey Supreme Court, "A lawyer needs no
motivation beyond his sense of duty and his pride." To date over half the states have
found it impermissible to force attorneys to serve pro bono. When the problem was
investigated it was found that the investigation was geared toward the rights of the
attorney and if fair for them. The investigation never looked at the impact on the
indigents right to a dedicated and vigorous defense. The rate of compensation for the
attorney ranges from about $12.50 to $60.00 an hour and have a cap from $500 to $1,200.
If you are an incompetent attorney no need to worry about those poor that were unjustly
convicted due to your inadequate defense. The right for counsel is only for trial and
appeal and not for claims involving constitutional defects (attorney sleeping during the
trial etc...) in the trial. The frequently illiterate indigent must challenge the
professional competence of his appointed counsel without professional help.
The big question is why is the level of performance in public defenders so shoddy? The
answer lies in politics, sociology, and most important economics. A further problem may
be in the future when only big corporations, government, the rich and penniless (who
receive free legal aid) can obtain lawyers for their criminal and civil work. In civil
actions lawyers fees exceed the amount their clients receive if charged on an hourly
rate. Court rules make it too expensive and almost impossible to convict petty crime such
as shoplifting.
The difference between the poor and wealthy is seen in every faucet of the criminal
justice system for example, the poor thief who takes $20 is accused of stealing and
receives a long prison sentence. The wealthy person who embezzles a large amount of money
has only "misappropriated" and will usually not go to jail but be required only to make
restitution. The corporation in many states is not liable for criminal prosecution. The
leading attorneys of our nation speak out at times such as Sam B. Warner and Harry Cabot
of the Harvard Law School stated that "trial procedure gives the criminal defendant an
unfair advantage over the prosecution." These two men were teachers who influenced many
generations of influential attorneys.
The rights of the accused must be enthusiastically protected. The primary goal of the
criminal justice system must be to protect the rights of the accused. The state is a
powerful entity that must be restrained in its attempt to prosecute the accused. The
following is a good closing for this report and Michael B. Mushlin of the Pace Law Review
wrote it, spring 1990. "In Gideon v. Wainwright the highest courts in the land "reach
(ed) down to hear the plea of a fifty-two-year-old drifter, an outcast from society. The
story of how lawyers and judges handled Clarence Gideon's handwritten misspelled appeal
is worth remembering. As Anthony Lewis states, the care, the vision, the imagination of
the attorneys appointed by the Supreme Court to represent Gideon on his appeal makes one
proud of law and lawyers in this country. The simple elegance of the majority opinion
written by Justice Hugo Black, is also impressive. In that opinion Justice Black
proclaimed the "obvious truth (that) any person hauled into court, who is too poor to
hire a lawyer, cannot be assured of a fair trial unless counsel is provided for him."