TWO SYSTEMS OF CRIMINAL JUSTICE
FEW principles are more fundamental to our conception of American criminal justice than the guarantee that everyone, no matter how poor, has a right to a lawyer when facing serious criminal charges. The case establishing that principle, Gideon v. Wainwright, is probably the most celebrated criminal justice decision the Supreme Court has ever issued.1 Millions have read the story in Anthony Lewis best-selling book, Gideon's Trumpet, and millions more have seen the movie, starring Henry Fonda as Clarence Earl Gideon. It's a classic American story: A penniless drifter, tried without a lawyer and convicted of stealing money from a pool hall vending machine, sends a handwritten letter from prison asking for help from the Supreme Court. The Court takes his case, appoints Abe Fortas, one of the best lawyers in the country, to represent him, and then rules that all indigent defendants facing serious criminal charges have a right to a lawyer paid for by the state. On retrial, with a local trial lawyer, Gideon is acquitted. Hollywood couldn't have written it better. It is a great story, and part of what makes it great is its message: Where criminal penalties are at stake, everyone should stand on equal footing in a court of law. As the Supreme Court stated in another case that was decided about the same time as Gideon, "there can be no justice where the kind of trial a man gets depends on the amount of money he has."2
But of course everyone is not equal before the law. While the legitimacy of our criminal justice system is explicitly premised on the ideal of that equality, it is a myth. At every stage of the criminal justice system, from encounters with police officers on the beat to the appointment of lawyers for the poor to selecting jurors and enacting criminal laws, members of minority groups and the poor receive harsher treatment than white people of means.