THE RIGHT TO AN ATTORNEY IS NOT ENOUGH: STEPS TO RID THE CRIMINAL JUSTICE SYSTEM OF ITS POVERTY TAX.

• Author: Lustbader, Sarah
• Position: Symposium Issue on David Caplovitz's 'The Poor Pay More'

Introduction 1407 I. Two Systems of Justice 1409 A. Arrest 1409 B. Bail Hearing 1411 C. Pending Case 1414 D. Plea Negotiations 1416 E. Aftermath 1418 II. Closing the Gap: Proposals 1419 A. Arrest: Stop Creating Criminals 1419 B. Bail Hearing: Stop Incarcerating Poverty 1422 C. Pending Case: Stop Dragging Criminal Defendants to Court 1425 D. Plea Negotiations: Create Alternatives to Incarceration for Everyone 1426 E. Aftermath: Ban Collateral Consequences 1426 Conclusion 1427 INTRODUCTION

"You have the right to an attorney. If you cannot afford an attorney, one will be appointed for you." (1) When we hear this phrase recited to a suspect during an episode of Law & Order, we assume that justice will be done, equally and fairly, no matter the circumstances. Whether the suspect has been arrested for a serious felony or for a trivial violation, whether he is guilty or innocent, white or minority, rich or poor, employed or unemployed--in all of these cases, the criminal justice system will work swiftly and fairly to find the truth, with minimal inconvenience and cost to the accused. In practice, this is far from the truth: many people who have been accused of any crime--even a victimless crime or a crime they did not commit--suffer severe consequences that impede their livelihoods and disrupt their lives while serving no appreciable public interest. And those adverse consequences fall disproportionately--in some cases entirely--on the low-income people that the criminal justice system should be committed to protecting. Generally, those attorneys who pursue public defense as a calling do so for this reason: they know that even with an attorney, the odds are stacked against indigent criminal defendants. But many are surprised at just how stark the contrast can be. For this Symposium marking the fiftieth anniversary of David Caplovitz's seminal work, The Poor Pay More, (2) I draw on my experiences as a public defender in the Bronx to elucidate how criminal charges--and in particular, low-level charges--can prove far costlier in time and dollars for indigent defendants, and how this phenomenon can keep the poor in poverty.

This Essay imagines the paths of two individuals, each arrested for misdemeanor drug-possession. (3) It follows Joe, an indigent, thirty-year-old black man, and Richard, a middle class, thirty-year old white man, through identical drug possession cases and traces the ways in which their cases--and the costs involved--diverge due to the race and wealth differences between the two men. (4) The Essay tracks the cases through arrest, bail hearing, pendency of the case, plea negotiations, and aftermath. I conclude by proposing five changes to state-level criminal law, procedure, and policy, one at each stage of the case, that can help ease the poverty tax inherent in criminal cases: (1) eliminate policing practices that pull low-income people into the criminal justice system; (2) encourage judges to make individualized bail assessments tailored to what families can afford; (3) get rid of the requirement for all criminal defendants to appear in court on each of their court dates; (4) create meaningful, affordable, and feasible alternatives to incarceration that do not require defendants to pay for their freedom; and (5) ban all but the most essential collateral consequences of criminal convictions.

1. Two SYSTEMS OF JUSTICE

   1. Arrest

      Joe's chances of being arrested are markedly higher than Richard's, regardless of culpability. Joe is a person of color in the South Bronx, in the poorest congressional district in the country. (5) Richard is a white man who lives a few miles away on the Upper East Side of Manhattan, in the wealthiest congressional district. (6) Stops and searches by the police that lead to arrests are an uncommon occurrence on the Upper East Side and rarely target white people in any neighborhood, but they are an everyday occurrence for people of color in the South Bronx. (7) Police on patrol in the South Bronx may conduct a stop that leads to Joe's arrest. In addition to increased police patrols and stops, there are several other police practices that are far more common in low-income neighborhoods than in wealthier ones. First, an officer may spot discarded drugs or drug paraphernalia on the ground and charge a passerby with possession of those drugs or drug paraphernalia. (8) Second, Joe might be approached by an undercover officer posing as an addict looking for a fix. (9) If Joe directs the undercover officer to a dealer and facilitates a small drug deal, he can be charged with felony-level drug sale, even if he never sold or even possessed drugs. (10) Joe is far more likely to be arrested than Richard, even if Richard routinely walks around with a substantial amount of controlled substances, and Joe never does. (11)

      If he is arrested, Richard can call one of several attorneys he knows. He could call his sister, who is a civil lawyer, or his college roommate who became a prosecutor. That attorney can invoke his rights to the police, (12) thereby halting any police questioning, and can come to the precinct to witness any lineup or other procedures, voicing any objections to the process and generally acting as an additional pair of eyes, warding against abuses of police authority. Joe, on the other hand, counts no lawyers among his family or friends, and although his brother liked the public defender he was assigned for a minor arrest last year, he does not have her phone number on hand. Police are therefore free to question Joe and try to get him to make an inculpatory statement. Because he was arrested in New York City, Joe does not receive representation until his bail hearing, which means that he does not benefit from legal counsel while detained by police. (13) Even though he denies the charge of drug possession, the officers manage to make him nervous enough to trip over his words when explaining where he was headed when the police stopped and arrested him. The prosecutor can later use that misstatement during a bail hearing to make Joe appear suspicious. Joe also does not have the benefit of an attorney's presence for any part of identification or other pre-booking procedures. Even before the case has begun, police have a greater opportunity to create a case against Joe than Richard.

   2. Bail Hearing

      The bail hearing, an early court appearance during which the charges are read and the judge makes a bail determination, presents the clearest difference between Richard's experience and Joe's. Richard will almost surely walk out of court and fight his case from the outside, while Joe may be forced to spend weeks, months, or even years (14) in jail while his case is pending. The most obvious reason for this is that Richard's friends and family have more cash readily available to pay any bail that might be set. Depending on the judge, the jurisdiction, the prosecutor, the defense lawyer, and on Richard and Joe's respective prior experiences with the criminal justice system, a judge might release them on their own recognizance or might set bail of several thousand dollars. In most other states, defendants are not guaranteed an attorney at all during bail proceedings, so unless they have a private lawyer or the locality chooses to provide public defenders at that stage, they are not represented when bail is determined. (15)

      But let us suppose that, despite all this, bail is set equally. The judge sets bail at "$2000 bond/$1000 cash" for both Joe and Richard, meaning that they can bail out by paying $1000 in cash or by getting a bond worth $2000. Richard can easily get any number of friends or relatives to withdraw $1000 and, if they post it at the courthouse, he can be released directly from court before being taken to Rikers Island. At the end of his case, assuming Richard has not absconded, the court will return about ninety percent of the posted bail. Richard is a software engineer at a successful start-up firm. When he is arrested, he calls his boss and says he needs to take two personal days for an emergency. No questions are asked, and his pay and employment are not affected. Richard rents his apartment from a private landlord, who never finds out about his arrest, and by next year, he will own his own apartment. (16)

      Joe has no bank account, and most of his friends and family work off the books and don't use banks, either. No one can afford $1000 to pay his bail in cash. His family and friends might be able to gather the $200 to $600 that would be needed as collateral to get a bail bond for $2000, but it will take some time. (17) It would also require one or two people who work on the books to prove their income and agree to pay the entire bond should Joe run off. For many in Joe's position, it is not easy to find someone with a regular paystub who is willing to front the collateral and to be liable for the full amount. Even if he does convince his brother's girlfriend, who is a teacher, and his cousin, who drives a taxi, to sign off on his bond, the bail bondsman will keep thirty percent to forty percent of the collateral at the end of the case. For a small bond, like this one, the bondsman will often keep the entire collateral. And in many cases, bail bondsmen require defendants who bail out with bonds to wear monitoring devices such as ankle bracelets, and charge hundreds of dollars monthly for the use of those devices. (18) These costs can add up to far more than the bail that was initially set--the cash payment that Richard made.

      If the judge sets bail that Joe cannot afford, the prospect of incarceration will create a strong incentive for him to accept the first plea bargain offered by the prosecution, (19) even if that offer requires him to serve some jail time or would give him a criminal record. Richard, fighting his case from the outside, will have time on his side and can wait the months or years it takes to get to trial or to receive an acceptable offer from...