Tuesday, April 9, 2013
Gabriel J. Chin (University of California, Davis - School of Law) has posted Race and the Disappointing Right to Counsel (122 Yale Law Journal, 2013, Forthcoming) on SSRN. Here is the abstract:
Critics of the criminal justice system observe that the promise of Gideon v. Wainwright has been unfulfilled. They decry both the inadequate quality of representation available to indigent defendants, and the racially disproportionate outcome of the process. Some hope that better representation can help remedy the gross overrepresentation of minorities in the criminal justice system. This essay is doubtful that better lawyers will significantly address that problem.
When the Supreme Court decided Gideon, it had two main purposes. First, it intended to protect the innocent from conviction. This goal, while imperfectly achieved at best, was explicit. Since Gideon, the Court has continued to recognize the importance of claims of innocence at trial, with important, pro-defense decisions in the areas of confrontation, jury fact-finding, the right to present a defense and in other areas.
The Court's second goal was to protect African Americans subject to the Jim Crow system of criminal justice. But, as it had in Powell v. Alabama, the Court pursued this end covertly and indirectly; the Court attempted to deal with racial discrimination without explicitly addressing it. This timidity was portentous.
Since Gideon, racial disproportionality in the prison population has increased. Not only might Gideon not have solved the problem, it may have exacerbated it. To the extent that Gideon improved the quality of counsel available to the poor, defense lawyers may be able to obtain favorable exercises of discretion in investigation, prosecution and sentencing for indigent white defendants that they cannot for clients of color. For these reasons, racial disparity likely cannot be remedied indirectly, with more or better lawyers. Instead, the remedy lies in directly prohibiting discrimination, and having fewer crimes on the books, fewer arrests, and fewer prosecutions.