Academic journal article Fordham Urban Law Journal

The Right to an Attorney Is Not Enough: Steps to Rid the Criminal Justice System of Its Poverty Tax

Academic journal article Fordham Urban Law Journal

The Right to an Attorney Is Not Enough: Steps to Rid the Criminal Justice System of Its Poverty Tax

Article excerpt

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 


"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.


A. Arrest

Joe's chances of being arrested are markedly higher than Richard's, regardless of culpability. …

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