ESSAY CONTENTS INTRODUCTION I. PROSECUTORS DETERMINE OUTCOMES IN MANY CASES WITH LITTLE OR NO INPUT FROM THE DEFENSE II. GOVERNMENTS HAVE DISREGARDED THEIR CONSTITUTIONAL OBLIGATION TO PROVIDE COUNSEL CONCLUSION INTRODUCTION
Every day in thousands of courtrooms across the nation, from top-tier trial courts that handle felony cases to municipal courts that serve as cash cows for their communities, the right to counsel is violated. Judges conduct hearings in which poor people accused of crimes and poor children charged with acts of delinquency appear without lawyers. Many plead guilty without lawyers. Others plead guilty and are sentenced after learning about plea offers from lawyers they met moments before and will never see again. Innocent people plead guilty to get out of jail. Virtually all cases are resolved in this manner in many courts, particularly municipal and misdemeanor courts, which handle an enormous volume of cases. But it is also how many felony cases are resolved.
Even when representation lasts for more than a few minutes, it is often provided by lawyers struggling with enormous caseloads. These lawyers practice triage as they attempt to represent more people than is humanly--and ethically--possible without the resources to investigate their many clients' cases, retain expert witnesses, and pay other necessary expenses. As a result, they are unable to give their clients informed, professional advice during plea negotiations, which resolve almost all cases in "a system of pleas, not a system of trials." (1) In the rare case that goes to trial, defense counsel often cannot seriously contest the prosecution's arguments, raise and preserve legal issues for appeal, or provide information about the defendant that is essential for individualized sentencing. For the poor person accused of a crime, there may be no adversarial system. Prosecutors may determine outcomes in cases with little or no input from defense counsel.
There are exceptions. Some jurisdictions have provided the resources, independence, structure, training, and supervision that enable capable, caring, and dedicated lawyers to zealously represent their clients. Some public defenders and assigned counsel do heroic work despite overwhelming caseloads and lack of resources. But in many jurisdictions, perfunctory representation and "meet 'em and plead 'em" processing of human beings through the courts remain the dominant culture. Many courts are plea mills: courts of profit that impose fines without any inquiry into the ability of defendants to pay, thus setting them up for failure and return to jail.
The representation received by most poor people accused of crimes--if they receive any at all--is a far cry from the constitutional requirement of the "the guiding hand of counsel at every step in the proceedings," which was established by Gideon v. Wainwright (2) and its progeny. (3) Gideon held that "fair trials before impartial tribunals in which every defendant stands equal before the law" "cannot be realized if the poor man charged with crime has to face his accusers without a lawyer to assist him." (4) 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." (5)
Nevertheless, most states, counties, and municipalities--responsible for over ninety-five percent of all criminal prosecutions (6)--have refused to provide funding necessary for counsel and equal justice, despite repeated reports of deficient representation and gross miscarriages of justice. There is no public support for such funding, and governments have no incentive to provide competent representation, which could frustrate their efforts to convict, fine, imprison, and execute poor defendants. Many state governments have a long history of disregarding or resisting unpopular United States Supreme Court decisions--whether they require desegregation of the schools or the right to counsel--unless these decisions are enforced. The right to counsel is not enforced. Many judges tolerate or welcome inadequate representation because it allows them to process cases quickly. The Supreme Court has refused to require competent representation, instead adopting a standard of "effective counsel" that hides and perpetuates deficient representation.
The cost of this one-sided system is enormous. Innocent people are convicted and sent to prison while the perpetrators remain at large. Important issues, such as the system's pervasive racism--from stops by law enforcement officers to disparate sentencing--are ignored. People are sentenced without consideration of their individual characteristics, allowing race, politics, and other improper factors to influence sentences. Over 2.2 million people--a grossly disproportionate number of them African Americans and Latinos (7)--are in prisons and jails (8) at a cost of $75 billion a year. (9) Nearly an additional five million people are on probation, parole, or supervised release. (10) Over seventy thousand children are held in juvenile facilities. (11) Even those who have completed their sentences may be deported, denied the right to vote, dishonorably discharged from the armed forces, denied public benefits, and denied business or professional licenses. (12) Reentry into society is extremely difficult, (13) extending the costs to the families and communities of those who have been imprisoned. (14)
There are expressive costs as well. A system in which all of the key actors routinely ignore one of its most fundamental constitutional requirements is not a system based on the rule of law, no matter what it claims to be. When those actors shirk their constitutional obligations and bring the immense power of the state down most heavily on African Americans and Latinos, people cease to have confidence in the courts. The system lacks legitimacy and credibility and is undeserving of respect. For this to change, courts, legislatures, executives, and members of the legal profession will need to respond with a sense of urgency and commitment to justice that has been missing in most places during the last fifty years.
PROSECUTORS DETERMINE OUTCOMES IN MANY CASES WITH LITTLE OR NO INPUT FROM THE DEFENSE
The United States supposedly has an adversary system of justice, as opposed to the inquisitorial system employed in much of the rest of the world. (15) In the latter, a judge or magistrate is primarily responsible for directing the investigation and sifting through the evidence and establishing the true facts. (16) America's adversary system relies on the prosecution and defense each to conduct investigations, analyze evidence, select witnesses, argue law, and present "partisan advocacy" (17) to a neutral factfinder. The system is premised on "the principle that truth--as well as fairness--is best discovered by powerful statements on both sides of the question." (18) For this system to work, there cannot be significant disparities between the skills and resources of the prosecution and defense. Both must be able to investigate the case and present their evidence and arguments fully and forcefully.
However, for the most part, only very wealthy individuals and corporations can afford to pay for hundreds--often thousands--of hours of representation by experienced trial lawyers and for the cost of investigation, expert witnesses, and other expenses of defending a criminal case within the adversary system. On the other hand, 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. For those who cannot afford costly representation by experienced attorneys, the system is inquisitorial, but the prosecutor, not a neutral judicial officer, serves as inquisitor.
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. Some judges even rely on prosecutors to write their orders. (19) Prosecutors have access to law enforcement agencies to investigate cases and laboratories to conduct scientific tests and present expert testimony. (20) They can subpoena witnesses to testify before grand juries and produce all documents and records relevant to a case. (21) They 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 criminal charges, or informing sentencing judges of cooperation. (22) They can place informants in the cells of defendants. (23) On the other hand, in the overwhelming majority of criminal cases against poor defendants, the defense conducts no investigation whatsoever.
In most jurisdictions, prosecutors are not required to reveal much of what they know about the case to defense counsel. "[T]he prosecutor's institutional role in controlling access to information relevant to a defendant's guilt, and the prosecutor's ability to withhold evidence that might prove a defendant's innocence ... dramatically distort the ability of the adversary system to function fairly and properly." (24) Most jurisdictions allow prosecutors to withhold almost everything about their case and conduct "trial by ambush." (25) Some prosecutors make plea offers conditioned upon the defendant's not filing any motions or seeking discovery. (26) The Supreme Court has held that prosecutors are not required to disclose exculpatory evidence to a grand jury before it decides whether to issue formal charges (27) or to defense counsel before the entry of a guilty...