Taylor Deardorff

Law 100 H
Professor Theodore Myhre
12/18/2015
Poverty as a Factor in the U.S. Justice System: Problems and Possible Solutions
Equal Justice Under the Law. The phrase emblazoned upon the United States Supreme
Court building, and an idea that permeates American social and civic culture. In our country, the
accused are innocent until proven guilty. Everyone has the right to counsel, and everyone has
his or her day in court. But what if equal justice under the law, in effect, applied unequally?
What if the people receiving true equitable treatment only received it because of their higher
socioeconomic status? Throughout the United States, this seems, in many cases, to be the
unfortunate reality. Although the US Supreme Court does not recognize those in poverty as a
suspect class, poverty as a socio-economic status creates many barriers and obstacles to
obtaining equal justice in a court of law. Through both attorney representation and bail
requirements, those in poverty in America face greater barriers to equitable treatment; however,
through increased awareness and policies, some of the negative effects affecting the poorest
may be able to be mitigated in the future.
Since 1963, with Gideon v. Wainwright, every person accused of a non-capital crime has
the right to an attorney. As the Supreme Court explained, because Governments. quite
properly spend vast sums of money to establish machinery to try defendants accused of crime,
this means ...lawyers in criminal courts are necessities, not luxuries...the right of one charged
with crime to counsel may not be deemed fundamental and essential to fair trials in some
countries, but it is in ours (McAlinn 300). That person must be considered indigent, or

unable to pay for a lawyer. But as the Supreme Court noted in Gideon, ...there are few
defendants charged with crime, few indeed, who fail to hire the best lawyers they can get to
prepare and present their defenses (McAlinn 300).
But what constitutes the best lawyer? Defendants with the available funds will
undoubtedly hire a private attorney. With a large cost, private defense attorney can invest a large
amount of time and effort in mounting a defense for that one specific person. For the indigent,
however, the best lawyer is the one provided to you through the government, with a public
defender being your likely counsel.
The problem with public defenders, however, is their workload. Public defenders juggle
many different cases at once, making the time he or she has to devote to one specific case very
small. As Hannah Levintova explains, on average, a public defender would need about 3,035
work hoursa year and a halfto do a year's worth of work assigned to them.
On top of that, theyre underfunded. Even though 80% of the accused cannot afford a
lawyer, in 2007 alone, total spending by state prosecutors offices nationwide exceeded that of
public defender offices by nearly $3.5 billion. In 2008, for every dollar spent on public
defense, taxpayers spent nearly $14 on corrections (Levintova). This makes it harder to hire
and pay new public defenders to lighten the load, and means the money and resources they have
to invest in each case is far less than their prosecutorial counterparts.
Some states use court-appointed attorneys instead of public defenders for indigent defendants;
however, these attorneys come with their host of problems as well. The U.S. Department of
Justice conducted a study entitled Contracting for Indigent Defense Services, which examined
different jurisdictions across the country. They found in California, one attorney handled more
than 5,000 cases each year. This meant that in order to make a profit, the contractor had to

spend as little time as possible on each case to which he or she was assigned. In addition,
because these attorneys are responsible for expenses such as experts, discovery, and trial costs,
low-bid contracts contain an inherent conflict of interest (Natapoff).
Furthermore, representation by a public defender actually seems to have a more favorable
outcome for the defendant than a court-appointed attorney. In a study published in the American
Bar Association Criminal Justice Journal, the results strongly suggest that public defender
representation is associated with improved case outcomes versus appointed attorneys (Joy 2).
Most notably, The likelihood of receiving a life sentence is reduced by 62 percent if the
defendant has public defender representation rather than appointed counsel (Joy 3).
Because of their astronomical caseloads, both public defenders and court-appointed
attorneys use plea-bargaining as a tool to lighten their caseload. Plea-bargaining is a deal
offered by a prosecutor of a reduced sentence or punishment if the defendant pleads guilty to the
crime. In the United States, around 90% of cases are decided in plea-bargaining (McAlinn 299).
Because public defenders and court-appointed attorneys carry caseloads of hundreds or even
thousands of clients, they may meet literally for minutes with them before that client pleads
guilty or (only rarely) goes to trial (Natapoff). In one study they found in Mississippi, "42% of
the indigent defense cases were resolved by guilty plea on the first day the part-time contract
defender met the client (Natapoff). In a study by the ABA, they found that all too often,
defendants plead guilty, even if they are innocent, without really understanding their legal rights
or what is occurring...the fundamental right to a lawyer that Americans assume applies to
everyone accused of criminal conduct effectively does not exists in practice for countless people
across the United States (Natapoff).

After obtaining some sort of counsel and representation, the next step is a pretrial hearing
where bail will be determined. In the United States, the Eighth Amendment prohibits excessive
bail, but does not provide an absolute right to bail and does not prescribe any sort of measure
of at what amount should be set (McAlinn 308). This means that singular judges have a huge
amount of influence and large discretion when setting a defendants bail at a pretrial hearing.
Judges traditionally refuse bail if the defendant represents a serious danger to the community
or a high risk of flight (McAlinn 309). The court is supposed to weigh such things as the
person's ties to the community or their work environment when determining if that person
would be a good candidate for bail. If the person has strong ties to the community, he or she can
be released upon his or her own recognizance without the need to post any sort of bail or bond
(McAlinn 308-309).
Recently, however, setting bail has become a more common practice from judges. As the
Washington Post found, in 1990, ...of every five defendants in felony cases who were released
pending trial...three were let go on their own recognizance or on some other condition that did
not involve bail. However, in 2009, the number had reversed, as three out of five were
required to post bail (Ehrenfreund). This means that most people in jails before their trial are
...there simply because they couldn't come up with $2,500 -- or less, in many cases
(Ehrenfreund). In fact, the nation's jails recorded some 11.7 million admissions in 2013,
and 6 out of ten of the admissions were from pretrial bail hearings. As Nick Turner, the Vera
Institute director, remarked, "That's a function of poverty...your ticket out depends on your
ability to post bail" (Ehrenfreund).
Troublingly, judges weigh a number of factors when determining if or in what amount to
set bail--but they dont consider the persons socioeconomic status. As the VERA Institute of

Justice observed, bail amounts are not set in relation to an individuals ability to pay that bail
amount (Subramanian 34). Bail must be paid entirely in full, or can be posted by a bailbondsman, a service that pays your bail for you, but then puts you on a payment plan with
interest. The problem is that for many misdemeanors, bail-bondsmans arent even an option-many of the bail bondsman's wont provide services for those with lower crimes pending, as the
bail is too low and isnt profitable enough for them to loan out (Subramanian 32). As 2013 New
York City jail data reveals, more than 50% of jail inmates held until case disposition remained
in jail because they couldnt afford bail of $2,500 or lesswith 31 percent of the non-felony
defendants held on bond amounts of $500 or less (Subramanian 32).
Bail has also been increasing in cost around the United States. The average bail amount
in felony cases increased 43 percent...between 1992 and 2009, from $38,800 to $55,400
(Subramanian 29). Because of this, more and more defendants remain in jail simply because
they cannot pay their way out (Subramanian 29). The system punishes those most vulnerable
more harshly than those who can pay their bail. As Ehrenfreund observes, increasingly, jail has
become a de facto punishment for poverty, as the poor are forced to remain there in lieu of bail
while awaiting trial, a punishment for people who are, in theory, innocent until proven
guilty.
Increasing bail postings and bail amounts dont just cause jail incarceration rates to
increase--they actually plays a role in perpetuating poverty. As Hechinger, a lawyer with the
Brooklyn Defender Services explained, Most of our clients are people who have crawled their
way up from poverty or are in the throes of povertyour clients work in service-level positions
where if youre gone for a day, you lose your job...people in need of caretaking the elderly,
the young are left without caretakers. people who live in shelters, where if they miss their

curfews, they lose their housing (Pinto). Because a defendant isnt able to post bail and
return to their home and work, they could lose their job and even the custody of their children
as, often, pre-trial detainment drags on for months.
Further, with bail out of their reach, the fate of the defendant's case is inevitably altered.
By sitting in a jail, a defendant unable to post bond loses an opportunity to play an active role in
their defense. Placing a defendant in pretrial detainment also increases their likelihood of
accepting a plea bargain, which thereafter increases the likelihood that the detainee will be
convicted, imprisoned, and subjected to prolonged deprivation of liberty, privacy, and other
fundamental elements of human existence (Wiseman 1354).
With this state of the affairs, are there any solutions? Though the status quo is bleak, there
are possibilities for improvement both in the appointment of state-funded defense attorneys, and
with the posting of bail.
For both public defenders and court-appointed attorneys, the decriminalization of smaller
crimes would help to reduce their caseloads. The misdemeanor charges that overwhelm PD
caseloads are things as minor as putting your feet on a subway seat or riding a bike on a
sidewalk (Levintova). These small, seemingly insignificant crimes inevitably get the least
attention, though they have immense consequences even if the accused serves no jail time. As
Gross explains, "I don't know what qualifies as a minor case anymorebut when you start
criminalizing things like driving with a suspended license, you start asking the criminal-justice
system to do things it wasn't designed to do (Levintova). Specifically, decriminalizing
marijuana may substantially reduce caseloads for public defenders in a state that elects to do so,
given that currently 55% of prison inmates are there for a non-violent drug related
misdemeanor. Removing this as a possible crime needing defense could free up public

defenders case loads and increase their ability to properly defend their clients. Public funding
for public defenders should also be expanded, allowing states to hire more public defenders and
more equitably distribute the cases and lowering the need for the high reliance on pleabargaining.
As for bail, on the conservative side, states could employ a more equitable and reasonable
way to determine if and for how much bail should be set. One of the biggest problems with bail
reform is a fear that the person released on bail will harm the surrounding community. However,
as a report by the Vera Institute of Justice explains, many different calculations and systems are
already available that more comprehensively determine who is a flight risk or a threat to the
community. Kentucky, for example, has a single statewide agency that assesses all defendants
using a locally validated risk assessment instrument, and the state is now releasing seven in
ten defendants pending trial without requiring bail from them (Subramanian 32). Notably,
only 8 percent of the defendants Kentucky released under this program were arrested again,
compared to 16 percent of those nationally who were released on bail (Subramanian 33).
Another possibility is the establishment of city funds specifically for bailing out indigent
defendants. This past summer, the New York City Council set aside 1.4 million for a fund such
as this. The fund bailed our nearly 200 defendants who then went on to have an appearance
rate of 96% for later court appearances, which was higher than that of people who posted their
own bail, and not a single client went to jail on the charges for which bail had been posted
(Pinto).
A more radical suggestion would be the elimination of cash bonds all together. Jonathan
Lippman, the chief Judge of the New York, has been a strong advocate for this elimination for
decades. He explains that it would cause a cascade effect throughout the system. Without bail

posting causing an increase in plea-bargaining, courts would face a huge increase in volume of
cases. As he explains, you want pressure on the system you want everyone involved to be
reconsidering because of how much it could clog the system, you might have people on high
telling cops to stop picking people up for an open-container violation, because I dont want to
deal with it in my courtroom (Pinto). Washington DC, in the 1980s and 1990s, actually
reworked its bail system with a a supervised-release program and other measures designed to
reduce the number of people held on bail and the number of people locked up on bail
plummeted (Pinto). However, because the court culture didnt change with the laws,
eventually these improvements went away (Pinto). If nationwide, bail worked its way out of our
court culture, our system could see some real change.
Those in poverty are far from being viewed equally under the law in the status quo. The
problems poor defendants face in our legal system are a reality, and the solutions are, at this
stage, only a possibility. In the end, it will take not only judges, public defenders, and
prosecutors, and the entire American public to make significant change to help make the system
accessible and equitable for all citizens.

Works Cited
Ehrenfreund, Max. "How Bail Punishes the Poor for Their Poverty." Washington Post. The
Washington Post, 13 Feb. 2015. Web. 19 Dec. 2015.
Joy, Peter A., and Kevin C. McMunigal. "Does the Lawyer Make a Difference? Public Defender
v. Appointed Counsel." Criminal Justice 27.1 (1997): 1-4. Web.
Levintova, Hannah. "Charts: Why You're in Deep Trouble If You Can't Afford a Lawyer."
Mother Jones. N.p., n.d. Web. 19 Dec. 2015.
McAlinn, Gerald Paul., Daniel Allan. Rosen, and John Peter Stern. An Introduction to American
Law. Durham, NC: Carolina Academic, 2010. Print.
Natapoff, Alexandra. "Gideon's Silence." Slate. N.p., n.d. Web. 18 Dec. 2015.
Pinto, Nick. "The Bail Trap." The New York Times. The New York Times, 15 Aug. 2015. Web.
19 Dec. 2015.
Subramanian, Ram, Ruth Elizabeth Delaney, Stephen Roberts, Nancy Fishman, and Peggy
McGarry. Incarceration's Front Door: The Misuse of Jails in America. 1-54. Feb. 2015.
Web.
Wiseman, Samuel R. "Pretrial Detention and the Right to Be Monitored." Yale Law Journal
123.5 (2014): 1344-1404. Web.