Academic journal article Social Justice

The Accused Poor

Academic journal article Social Justice

The Accused Poor

Article excerpt

CRIMINAL AND CIVIL LEGAL AID ARE IN SEEMINGLY PERPETUAL STATES of crisis. Since the Supreme Court incorporated the right to counsel to states in Gideon v. Wainwright (1963), judges, scholars, attorneys, journalists, and the American Bar Association have bemoaned the lack of financial and ideological commitment to criminal legal aid (American Bar Association 2004, Bach 2010, Backus & Marcus 2006, Houppert 2013, Rakoff 2014). The same could be said about federally funded civil legal aid, which does not involve the same kind of constitutional entitlement but emerged out of President Lyndon B. Johnson's War on Poverty in 1964 and evolved into the Legal Services Corporation (LSC) in 1974. Since the 1970s, scholars and practitioners have documented shortcomings in access to justice for civil defendants (Cramton 1981, Legal Services Corporation 2009, Rhode 2004, Rothwell 1965, Tate 1979).

Legal aid continues to be imperiled. Public defenders' lawsuits claim that persistent underfunding prevents adequate representation of criminal defendants (Costello 2013, Drinan 2009, Primus 2006). On the civil side, US President Donald Trump's proposed 2018 budget eliminates all federal funding for the LSC (Ford 2017). The LSC predominates civil legal aid and has already undergone cuts.

Civil and criminal legal aid are tied to the same socioeconomically marginalized communities; accordingly, a juxtaposition of the rights and legal status of poor people in both settings is illustrative. Based on the findings of two separate studies--one of public defenders and one of welfare fraud investigators--this article provides a composite analysis of the legal situation of the accused poor in criminal, civil, and administrative proceedings.

Adversarial legalism dominates the US approach to criminal justice and welfare administration (Kagan 2001). US criminal law leans heavily toward the assignment of individual responsibility and blame and the use of harsh punishments. The US criminal legal system is also highly adversarial in the procedural sense. It is organized around an argumentative process in which contesting parties (the state and the accused) vie over competing narratives of fact and culpability (Kagan 2001, chaps. 4, 5). Similarly, the patchwork US social safety net operates on the basis of a labyrinthine network of rules, regulations, rights, and procedures (Kagan 2001, chap. 8). Disputes--whether involving individuals making claims against the state or the state making claims against individuals--are handled through legalistic adjudication processes. In these processes, as in their criminal justice analogues, opposing parties compete to gain official validation of their positions and determine legal outcomes.

In criminal, civil, and administrative legal contexts, retaining the services of an attorney--especially a private attorney--is an important predictor of success. The empirical data on outcomes for criminal defendants vis-a-vis type of attorney are decidedly mixed. Studies have found that there are no significant differences between types of counsel (Hardey et al. 2010); that public defenders, compared to appointed counsel, reduce their clients' overall expected time served in prison by 24 percent (Anderson & Heaton 2012); that public defenders' clients are more often detained and convicted and have their cases dismissed less often (Williams 2013); and that privately retained attorneys are approximately 2.7 times more likely to obtain acquittals than public defenders (Cornell 2014). It is thus generally better to have a private attorney. Moreover, as in criminal proceedings, lawyers help secure favorable legal outcomes in civil and administrative contexts (Sandefur 2010). (1)

Legal services, however, are generally not free. People who cannot afford to hire legal representation often find themselves at a distinct disadvantage. In recognition of representation's importance, the Sixth Amendment's protections for criminal defendants include the right to assistance of counsel. …

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