Academic journal article The Yale Law Journal

Race and the Disappointing Right to Counsel

Academic journal article The Yale Law Journal

Race and the Disappointing Right to Counsel

Article excerpt



    A. Help for the "Ignorant Negro"
    B. Two Notes from Gideon's Trumpet




Two central features of the criminal justice system are its impact on minorities, both absolutely and compared to whites, (1) and the often inadequate quality of representation provided to those who cannot afford to retain counsel. (2) Many scholars suggest that these are connected and that African Americans and other people of color suffer disproportionately because they lack access to high-quality representation. (3) The story of Clarence Gideon, the victor in Gideon v. Wainwright, (4) supports this idea. Forced to go to trial for burglary with no attorney, he was convicted. After winning in the Supreme Court, with the assistance of experienced counsel, he was acquitted.

In individual cases, particular clients would be helped by better lawyers with lighter caseloads. Certainly, many wrongful convictions, injustices, and tragedies could be avoided with better trained and resourced counsel. But this is different from saying that all, most, or even much of the system's racial disproportionality could be remedied by competent defense lawyers.

This Essay proposes that the right to counsel as articulated by the Court has not been and likely cannot be a remedy for systematic racial disproportionality in the criminal justice system. Paradoxically, right-to-counsel jurisprudence may have made the predicament of African Americans and other racial minorities worse.

Right-to-counsel jurisprudence in the era before Gideon is fairly understood as an outgrowth of Jim Crow ideology. The Supreme Court and other state and federal courts often recognized and remedied injustices faced by African-American defendants. But courts did not do so using the language of rights and justice; instead, they frequently rested their decisions on African-American ignorance and incompetence. Thus, the constitutional right to counsel was a double-edged sword. The very reason African Americans received appointed counsel in particular cases also justified special scrutiny of African Americans in general by the criminal justice system.

Gideon itself, a case involving a white petitioner, was not decided in those terms. The Court in that case recognized the importance of counsel for any layperson, regardless of intelligence and education. Yet, Gideon was a race case, in that Gideon and the Court's other criminal procedure cases of the era were concerned with institutional racism. (5) But it was also, quite clearly, an incremental case. Neither Gideon nor any of its contemporaries or successors was the Brown v. Board of Education of criminal justice, insisting that governments craft a criminal justice "system in which racial discrimination would be eliminated root and branch." (6)

Gideon, by its terms, was designed to remedy wrongful accusations against the innocent, and it was a constructive step in that direction. But it left in place several forms of racial discrimination in the criminal justice system. And it was decided in the context of a criminal justice system much smaller than the one which now exists. (7)

The critical problem of the criminal justice system now, and the one that particularly burdens African Americans, is not the wrongful conviction of the innocent, as important as it is to remedy that injustice. (8) The problem is a lack of fairness in deciding what to criminalize and how to enforce those prohibitions. (9) Most criminal defendants affected by the war on drugs, other forms of overcriminalization, and mandatory minimums and other harsh sentences are, as far as can be known, guilty, and thus cannot, at least systematically, be exonerated even by excellent counsel. But convictions of the guilty selected for punishment because of race are not the kinds of judgments Gideon was designed to prevent, and under the Court's decisions, they are not injustices which counsel can normally address. …

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