Guilty of being poor

There is a myth that persists among criminal defendants that is well known to all of us: if you are poor, there’s a greater likelihood you’ll be found guilty of something. This myth – and a myth it is, because the rate of conviction is so damn high that you can’t honestly carve out any special class among the universe of defendants – is a steady source of amusement for the public servant.

“Man, if I had a real lawyer, I’d have gotten a dismissal already.”

Yeah, sure.

“I know how this works. If I had a private lawyer, he could fight for me more, but I can’t afford one so I’m stuck with you and this crappy deal.”

Whatever you say.

The irony is that the myth “you’re guilty if you’re poor” is just a few minor edits away from being close to the truth. The reality is that in the volume-high, fund-low world of indigent defense, most people are certainly guilty of one thing: being poor.

I’m not referring to the link between poverty and crime, for which there is much to be said – despite the tortured claim put forth last year that the declining economy coincided with a declining prison population and hence there was no link, an argument that any statistician worth the paper his degree was printed on would snarkily dismiss out of hand with the acronym SSS* – and indeed much has been said, but rather to the reality that unfolds every single day in the busiest courthouses across the country.

In response to my post yesterday on the “difficulty facing public defenders” [and if you want to read a more thoughtful post on the subject, check out Gamso's], a commenter points out that what I identified as a difficult wasn’t really exclusive to public defenders. The presumption of guilt applies to all defendants. But what is special to the indigent bar is that we often have to sit by and watch clients plead guilty, without having a clue whether they are actually guilty or not and without having the opportunity to determine that.

For almost every defendant except the guy doing life on the installment plan, the single biggest motivating factor is liberty. “When can I get out?” is the paramount question.

What with the concept of bail being a joke and no one really having any clue what a reasonable amount is anymore, the choices available to the average defendant are stark and bleak: pray for a promise to appear, sit in jail or do whatever it takes to get the hell out.

Some judges and most prosecutors are acutely aware of this dilemma and a fair percentage of them are not above leveraging it into a conviction.

Offer a deal – any deal – that involves no jail time and the incarcerated defendant will jump on it faster than you can say “suspended sentence”. Guilt or innocence be damned. As long as he can get out today, he’s taking it.

For the public defender, this is quite the conundrum. On one hand, the client’s interests are paramount and whatever is the client’s paramount interest is yours. The ability to investigate, to challenge the State’s case, to force a dismissal if the facts align themselves are all tertiary.

“I want to get out” is an argument against which there is no satisfactory response. Ethically, we must convey every offer to the client. And, at times, they’re not bad deals. They’re just not as good as they should be. When the State offers a suspended sentence, it’s patently obvious that there weaknesses in their case, sometimes even fatal ones.

If only we could convince the client to hold out longer, while we finish that investigation, while we round up those witnesses and get those statements, while we beat the State into submission with the glaring holes in their case, while three months have elapsed.

To the poor, incarcerated client, this is just not a convincing strategy. It’s hard to argue with the allure of immediate freedom and escape from the shitholes that are our prisons.

The reality is that our clients are poor. They want out. We stand by, often with nothing more than a police report and counsel them as best we can that we can’t really tell them whether to take the promise of immediate freedom because we haven’t had time to do any research or investigation. They look at us as nothing more than a warm body and decide that they’d rather take the abstract notion of an unjust conviction and the attendant liberty over the potential of no conviction and the fact of more time spent behind bars.

If only they had money to fight the case “from the outside”. If only they weren’t poor and the system didn’t take advantage of that.

That’s a difficult pill to swallow.

*small sample size

6 thoughts on “Guilty of being poor

  1. Rick Horowitz

    Although I am a private attorney, I take a certain number of juvenile appointmenta each month. What you describe comes there in spades. Try convincing the kid AND his parent (there’s usually just one: mom) to wait.

    And yet, the last month, two trials I set resulted in dismissal on the morning of trial because the State could produce no witness.

    Reply
  2. Steven Young

    A recent two-part series on NPR described how the bail system works especially against the poor, who can’t raise the cash to buy the bond to keep them at liberty while their public defenders build a case. The gist of the story, in NPR’s words: “Two-thirds of the inmates in U.S. jails are petty, nonviolent offenders who are there for only one reason: They can’t afford their bail. Sometimes, it’s as little as $50. Some will wait behind bars for as long as a year before their cases make it to court. And it will cost taxpayers $9 billion this year to house them.” (You can search for the series at npr.org.) Of course, the bail system is an archaic holdover from centuries past that’s no less corrupt now than it was then–probably more so, as it’s been turned into a “modern” business with its own lobby, etc. Supported by taxpayers to the tune of $9 billion a year. Talk about the crime of being poor … how about the crime of exploiting the poor at society’s expense?

    Reply
  3. k

    Gideon:

    Our job is to advise our clients and only rarely to make the important decisions for them. Adding notches to the trial victory belt is not part of the job description (although a helluva lot of fun). I’d love for every triable case that is a slam dunk for us to go to trial. The reality is when more than a few months of county jail follows a guilty verdict at trial, time served looks good, real good, even with a strong case. Even strong defense cases ocassionally lose. It isn’t us who have to do the time if we lose. And invariably, every defense attorney loses trials if s/he tries cases other than slam dunks.

    I say this even though I have a fairly high batting average and try more felony trials in my county than any other attorney, every year (and if not every, almost every), stretching back some ways.

    The choice is their choice, not ours.

    Reply
    1. Gideon Post author

      But I’m talking about even before we get to make the assessment of whether it’s a winnable case. In the fast-paced “low courts” with an overwhelming caseload, offers are often made even before the second or third court date. Resources dictate that most cases cannot and will not be investigated – even preliminarily – by then. So we have no basis with which to make any sort of informed opinion and advise the client accordingly.

      Freedom is carrot that is dangled to get people to plead guilty, sometimes to things they didn’t do.

      Reply

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