ESSAY CONTENTS INTRODUCTION I. HOW POOR PEOPLE LOSE IN AMERICAN CRIMINAL JUSTICE II. THE CRITIQUE OF RIGHTS III. THE CRITIQUE OF RIGHTS, APPLIED TO GIDEON A. The Liberal Overinvestment in Rights B. The Indeterminacy of Rights C. Rights Discourse and Mystification D. Isolated Individualism E. Rights Discourse as an Impediment to Progressive Social Movements IV. OTHER COMMENTS ON RIGHTS DISCOURSE IN CRIMINAL PROCEDURE CONCLUSION: CRITICAL TACTICS INTRODUCTION
Gideon v. Wainwright (1) is widely regarded as a milestone in American criminal justice. When it was decided in 1963, it was seen as a major step forward in assuring fairness to poor people and racial minorities. Yet, fifty years later, low-income and African-American people in the criminal justice system are considerably worse off. It would be preferable to be a poor black charged with a crime in 1962 than now, if one's objective is to avoid prison or serve as little time as possible.
The "critique of rights," as articulated by critical legal theorists, posits that "nothing whatever follows from a court's adoption of some legal rule" (2) and that "winning a legal victory can actually impede further progressive change." (3) My thesis is that Gideon demonstrates the critique of rights. Arguably, Gideon has not improved the situation of accused persons, and may even have worsened their plight.
The reason that prisons are filled with poor people, and that rich people rarely go to prison, is not because the rich have better lawyers than the poor. It is because prison is for the poor, and not the rich. In criminal cases poor people lose most of the time, not because indigent defense is inadequately funded, although it is, and not because defense attorneys for poor people are ineffective, although some are. Poor people lose, most of the time, because in American criminal justice, poor people are losers. Prison is designed for them. This is the real crisis of indigent defense. Gideon obscures this reality, and in this sense stands in the way of the political mobilization that will be required to transform criminal justice.
I know that, for some readers, these claims are counterintuitive, and I ask these readers' indulgence for the time it takes to read this Essay, in which I will attempt to prove my claims. It is also important to emphasize that I am not malting a "but-for" claim of causation. Gideon is not responsible for the exponential increase in incarceration or the vast rise in racial disparities in criminal justice. As I explain later, however, Gideon bears some responsibility for legitimating these developments and diffusing political resistance to them. It invests the criminal justice system with a veneer of impartiality and respectability that it does not deserve. Gideon created the false consciousness that criminal justice would get better. It actually got worse. Even full enforcement of Gideon would not significantly improve the wretchedness of American criminal justice.
In Lafler v. Cooper (4) and Missouri v. Frye. (5) the Supreme Court extended the right to counsel to the plea bargaining stage of prosecution. Some people are having a Gideon moment (6): the Court's rulings seem like important victories for indigent accused persons because, as Justice Kennedy observed in Lafler, "criminal justice today is for the most part a system of pleas, not a system of trials." (7) It seems cynical and defeatist to recall Mark Tushnet's observation that "nothing whatever follows from a court's adoption of some legal rule." (8) But one goal of this Essay is to disrupt the "cruel optimism" that Gideon discourse creates.
This Essay proceeds as follows. The first Part develops the claim that the poor--especially poor African Americans--are "losers" in American criminal justice and that providing them with more, or better, defense attorneys would not substantially alter their subordination. Part II describes the critique of rights, and Part III applies it to Gideon. Part 1V compares the critique of rights to other comments on rights discourse in criminal procedure. The Essay concludes with some recommendations on what advocates for poor people might do that would help them more than discoursing about rights.
HOW POOR PEOPLE LOSE IN AMERICAN CRIMINAL JUSTICE
Indigent persons are much more likely to go to prison today than in the era when Gideon was decided. In 1960, the U.S. imprisonment rate was approximately 126 per 100,000 population. (9) By, 2008, the rate had quadrupled, to 504 per 100,000. (10)
African-American defendants are even worse off. In 1960, three years before Gideon, the black incarceration rate was approximately 660 per 100,000. (11) By 1970, it had fallen some, to slightly under 600 per 100,000. (12) In 2010, the rate of incarceration among black males was an astronomical 3,074 per 100,000. (13)
For men hoping to avoid prison, being both poor and black is a lethal combination. More than two-thirds of black males who do not have college degrees will be incarcerated at some point in their lives. (14) Black male high school dropouts are more likely to be imprisoned than employed. (15)
What is it about being poor and African American that substantially increases the risk of incarceration? The answer, rather obviously, has much to do with class and race and, less obviously, little to do with the quality of the indigent defense system. This Essay employs data about both race and class to demonstrate this claim, but at the start I want to note that it is impossible to disaggregate the effects of race and class. The answer to the questions, "Are poor defendants treated unfairly because many of them are black, are black defendants treated unfairly because many of them are poor, or is there some other dynamic at work?" is "yes." (16) Indeed, the Gideon decision itself was explicitly a class intervention, but implicitly, like other Warren court criminal procedure cases, a racial justice intervention as well. (17)
Approximately two decades after Gideon, two trends began in criminal justice, the effects of which were to overwhelm any benefits that Gideon provided to low-income accused persons. First, the United States experienced the most pronounced increase in incarceration in the history of the world. (18) Second, there was a corresponding exponential increase in racial disparities in incarceration.
This dramatic expansion of incarceration was accomplished on the backs of poor people. The Bureau of Justice Statistics reports that the "generally accepted indigency rate" for state felony cases near the time when Gideon was decided was 43%. (19) Today approximately 80% of people charged with crime are poor. (20)
Other data further illustrate the correlation between poverty and incarceration. In 1997, more than half of state prisoners earned less than $1,000 in the month before their arrest. (21) This would result in an annual income of less than $12,000, well below the $25,654 median per capita income in 1997. (22) The same year, 35% of state inmates were unemployed in the month before their arrest, compared to the national unemployment rate of 4.9%. (23)
Approximately 70% of state prisoners have not graduated from high school. (24) Only 13% of incarcerated adults have any post-high school education, compared with almost 50% of the non-incarcerated population. (25)
College graduation, on the other hand, serves to insulate Americans from incarceration. Only 0.1% of bachelor's degree holders are incarcerated, compared to 6.3% of high school dropouts." (26) Put another way, high school dropouts are sixty-three times more likely to be locked up than college graduates.
The post-Gideon expansion of the prison population was also accomplished on the backs of black people. There have been always been racial disparities in American criminal justice, but from the 1920s through the 1970s they were "only" about two-to-one. (27) Now the black/white incarceration disparity is seven-to-one. (28) There are more African Americans under correctional supervision than there were slaves in 1850. (29) AS Michelle Alexander states, "If mass incarceration is considered as a system of social control--specifically, racial control--then the system is a fantastic success." (30)
In summary, poor people and blacks have never fared as well as the nonpoor and the nonblack in American criminal justice. Since the 1970s, however, the disparities have gotten much worse. Something happened that dramatically increased incarceration and dramatically raised the percentage of the incarcerated who are poor and black. What happened is usually attributed to two main causes: the war on drugs and the law-and-order or so-called tough-on-crime policies of American leaders since the Nixon Administration. (31)
Thus far I have made the case that prisons are populated by people who are disproportionately poor and African American. My next step is to demonstrate that this is not a coincidence, in order to further support the claim that the poor are losers in American criminal justice.
Mass incarceration's process of control--the social and legal apparatus by which poor people become losers in criminal justice--can be broken into five steps.
(1) The spaces that poor people, especially poor African Americans, live in receive more law enforcement in the form of police stops and arrests. (32)
(2) The criminal law deliberately ignores the social conditions that breed some forms of law-breaking. (33) Deprivations associated with poverty are usually not "defenses" to criminal liability, although they may be factors considered in sentencing.
(3) African Americans, who are disproportionately poor, are the target of explicit and implicit bias by key actors in the criminal justice system, including police, prosecutors, (34) and judges. (35)
(4) Once any person is arrested, she becomes part of a crime control system of criminal justice, in which guilt is presumed. (36) Prosecutors, using the legal apparatus of...