Academic journal article The Yale Law Journal

Poor People Lose: Gideon and the Critique of Rights

Academic journal article The Yale Law Journal

Poor People Lose: Gideon and the Critique of Rights

Article excerpt

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 


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. …

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