Wealth Inequality

Accessible and quality legal representation is inherent to a truly just legal system and is a pillar of American jurisprudence (Gideon v Wainwright, 1963). The function of law is to provide justice to all people, regardless of their race or social position (US Constitution, amend. XIV), however, due to political decisions motivated by the desires of the constituencies of judges and lawmakers, we are presented with a situation where people do not have guaranteed access to proper legal representation. Having legal representation in the criminal justice system is critical because individuals are not equipped with the skills or knowledge to navigate an often complex legal system. As such, legal representation constitutes a critical part of a fair trial as guaranteed by the Sixth Amendment (US Constitution, amend. VI).

However, adequate legal representation for indigent defendants is contingent on the resources allocated by states to public defenders. Because of the legislative desires of the constituencies of lawmakers, the funding of public defenders has become a political question. Often, that question is resolved in a way that underfunds public defenders and dilutes a critical feature of the criminal justice system. As a result, politically marginalised groups are systematically denied legal representation in a process that enables the mass incarceration of their communities, with one in three black men being incarcerated (The Sentencing Project, 2019). This illustrates how underfunded public defenders are particularly damaging for non-white communities who, as a result of systemic racism, disproportionately experience socio-economic disadvantage.

Public defenders often have no choice but to provide poor quality legal representation. Statistically, public defenders encourage their clients to take a guilty plea deal in 95% of cases (Pastore and Maguire, 2003). This indicates a general lack of resourcing. For instance, New Orleans’ public defender's office published a crowdfunding page that has only raised 19% of its goal (WDSU News, 2015). Furthermore, 40% of all county-based public defenders have no investigators on staff and their offices lack basic standards of workplace health and safety, meaning attorneys are often unable to work at their most productive (Farole, 2007).

This leads to a system that is heavily overburdened. 60-90% of criminal defendants need a publicly funded attorney (Giovanni, 2013). Public defenders in Fresno County often work on 1000 cases a year (Fresno Bee, 2015). With caseloads that heavy public defenders cannot possibly prepare an effective defense. A New Orleans study found that some part-time defenders could only spend an average of seven minutes per case (New York Times, 2013). Thus, the public defender system faces overwhelming institutional obstacles as a result of political decisions and is under-resourced, causing a lack of quality representation.

However, underfunding is not the only avenue by which politics dilutes the legal principle of fair representation. Attitudes within the judiciary, informed by political preconceptions, also operate against the provision of fair legal representation. Because of societal associations between the poor and criminality, those that defend the poor are not respected. Some judges have expressed disrespect for public defenders with Florida’s Judge Murphy assaulting a public defender, which then was followed by “[t]he courtroom crowd, which had heard everything, clapp[ing] and laugh[ing]”(Barbash, 2015). Similarly, more than 100 defense attorneys filed ethics complaints against Conrad Hafen, a Las Vegas judge who handcuffed a public defender to teach them a ‘lesson’. They criticised Hafen’s ‘complete disregard for law’ for putting lawyers and defendants in custody for contempt (Guardian, 2016). These extreme examples are indicative of the broader attitude in regard to public defenders, where widespread disrespect and mistreatment of such defenders prevails.

Paradoxically, individuals are barred from free access to an attorney due to the costs of public defenders. Within the current system, using a public defender can actually further criminalise vulnerable individuals through fines and fees. The example of Larry Thompson who was arrested in Florida for driving violations (Thompson v. Florida, 2010) is emblematic of a larger trend. In Florida, defendants must pay a $50 fee to apply for a public defender. Those that are subsequently convicted must pay fees for both their public defender and the prosecution’s costs. Ultimately, after being held in jail for 59 days, Thompson owed $675. In 2015, he was arrested for contempt of court for not paying those fees and subsequently passed away in custody (Cherney, 2015). Additionally, in four US states, one can be poor enough to qualify for food stamps but still not be approved to get state-funded representation and in 43 states one can be billed for a public defender (Sunne, 2014). Realistically, despite being a constitutional right, access to quality, free legal representation is not guaranteed due to political constraints.

The very vulnerable communities whom public defenders are intended to serve are often unable to exert sufficient political pressure on lawmakers and judges to ensure adequate resourcing. It can be politically unpopular to allocate money to public defenders. Voters may consider it a waste of money due to racist or classist attitudes that say such defendants are likely to be guilty regardless of the facts. Many do not view over-incarceration as an issue as they believe minority communities are inherently dangerous and do not contribute to society (Lindqvist, 2017). Seo argues that, “for the poor, who are disproportionately people of color, the criminal justice system in the United States is essentially a plea-and-probation system” (Seo, 2021). The issue is cyclical: the failure of the legal system reproduces social inequalities which deny marginalised communities political power; and the lack of political power permits the failure of the legal system in the first place.

Having a lawyer is critical to the legal system, but due to largely political decisions, the content of what is provided is not sufficient to discharge the Supreme Court’s mandate. Political questions then manifest as legal outcomes which are unconstitutional and remove free access to justice. Lawmakers and judges must resist short term political pressures that demonise public defenders in order to uphold their role as defenders of the legal system.