As stated in the Declaration of Independence, “we hold these truths to be self-evident that all men are created equal.” Under this same document we have unalienable rights to life, liberty, and the pursuit of happiness. However, all men are not represented equally, and the supposedly unalienable right to liberty can be violated by the system designed to keep us safe from those who deviate from the laws designed to maintain an organized society. Yes, crime doesn’t pay, but no one should be punished for being unable to pay for a crime they may not have even committed. The criminal justice system is unfairly stacked against those who are financially strapped and/or indigent. This is turn puts minority groups at a greater disadvantage and less likely to have equal justice in the criminal justice system. This paper analyzes the correlation between financial status and experience in the criminal justice system and will argue that those who are indigent are more likely to wind up worse off in the system than their counterparts.
As Alexis de Tocqueville said, “[Bail] is hostile to the poor and favorable only to the rich. The poor man has not always a security to pledge.” Bail is money that is put up in order to guarantee the appearance of a suspected offender in court. However, in the case where an offender cannot afford to pay bail, there isn’t really a “flexible payment plan,” putting the defendant at an immediate disadvantage. The American Bar Foundation Research Journal published an article called “Bail Revisited,” in it they argue that bail is ineffective because it unfairly targets those who simply cannot afford it. “Once bail is set, the next move-to make bail if he can-is up to the defendant. As one would expect and as figure 4 shows, the higher the bail, the smaller the proportion of defendants who can make it.” The chart labelled figured 4 showed that when bail was 0-250 dollars, 89% of offenders were able to make bail. As the bail amount increased, the number of inmates able to put up bail dropped. When the bail amount was 250-1,000 dollars 61% of offenders were able to make bail. Once the bail amount exceeded 1,000 dollars only 35% of offenders could put up bail. While bail is a relatively effective way to prevent offenders from fleeing, no system is perfect. “…[bail] will force some defendants unable to make bail to stay in jail, although they would have appeared in court if bail had been set at a level they could have afforded.” In 2010, the Human Rights Watch wrote “The Price of Freedom,” a report designed to show the disparities of criminal verdicts between the wealthy and other defendants, and the beginning of the report highlighted the issue with bail. "Among defendants arrested in 2008 on non-felony charges and given bail of $1,000 or less, only 13% of defendants were able to post bail at arraignment." That means that the remaining 87% of offenders sat in jail until the received his/her day in court. In addition to that, of those people who sat in jail, 71% of those offenses were nonviolent offenses. The problem with this that it creates a vicious cycle that will only serve to further entrap the defendant and put them at a greater risk for recidivism. Many of those who cannot afford to pay their bail work minimum wage jobs, where their attendance is vital for them to maintain their position, if they are in jail they will lose that job and as a result have no way to gather or draw funds to pay for bail. And it is more than likely that if you can’t afford to pay your bail, you definitely cannot afford to hire an attorney to defend your case.
Upon your arrest, you are handcuffed and read your Miranda rights “You have the right to remain silent, anything you say can and will be used against you in a court of law. You have the right to an attorney, if you cannot afford an attorney, one will be provided for you…” Public defenders are attorneys who the state gives cases of those who would otherwise be unable to afford a lawyer to represent them in court, as a citizen you are entitled to an attorney under the Supreme Court decision of Gideon v. Wainwirght (1962). But are public defenders the best defenders? William J. Stuntz, a criminal justice professor at Harvard outlined the problem with unequal representation in his article “Inequality and Adversarial Criminal Procedure.”
“Where criminal defendants supply their own lawyers, rich defendants buy better legal representation than poor defendants can buy, which in turn means that police and prosecutors must invest more in gathering evidence against the rich than against the poor. It follows that, in an adversarial justice system, the government can more easily convict a poor and innocent defendant than a rich and innocent one – perhaps more easily than a rich and guilty one.”
If better financials afford you a better outcome, then indigent offenders are automatically at a disadvantage. In addition to that while the government recognizes that they are required to make attorneys available to indigent, it didn’t say anything about hiring the best attorneys on behalf of the offender. The Virginia Law review highlighted this issue among many in their article “Public Defenders for the Poor in Criminal Cases.”
“The courts do appoint lawyers to defend accused poor persons -but are they really defended? These assigned lawyers usually serve without compensation, except that in some states a fee is paid in capital cases. On rare occasions, distinguished counsel is assigned to defend a prisoner, but as a general rule, these assignments go to young and inexperienced attorneys, or to a type of lawyers in the criminal courts who are not truly representative of a great profession.”
Lack of experience is a severe problem when handling a criminal case. Timing and resources are just a few other issues that make the outcome of favorable verdict less likely. The American Civil Liberties Union published data showing that public defenders are overworked in terms of the case load that they should be taking given their experience. In New Orleans, Detroit, and Atlanta public defenders have little more than an hour to review their new clients case and strategize, the worst of the group being New Orleans giving public defenders on average 7 minutes per case. As a result, what ends up happening is that 90-95% of offenders plead guilty, even if they have not committed the crime. This is often done to avoid any additional costs the offender cannot afford, or simply to obtain a lesser sentence than the crime they were originally charged with.
In many cases, justice is not color-blind. African-Americans and other minorities are more likely to be indigent, and as result less likely to receive equal justice from the system designed to dispense it. “…structural and economic factors, such as unemployment, racial disadvantage, poverty and poor housing shape the nature of black offending…” In addition to limited options, many of these cases can be chalked up to police officer bias. The majority of law enforcement is controlled by white males and the lack of diversity can cause certain stereotypes to persist within law enforcement which can enforce racism making it much more difficult for minority defendants. A good example of this would be in drug cases highlighted by the Stuntz article.
“According to the best available survey data, 8.7% of America's black population uses illegal drugs on a regular basis, compared to 8.1% of America's white population (Office of Applied Studies [2006]). Those percentages are not far apart, but punishment rates for the two groups are strikingly different. Of every 100,000 black Americans, 351 are in prison on drug charges. The analogous figure for whites is 27.2 Clearly, black drug offenders are more likely to be convicted and punished than white drug offenders.”
With numbers that are almost identical, there should be no reason that justifies the fact the African-American offenders are convicted almost 13 times more than their white counterparts. With minorities making up a larger category of those who would require financial assistance, the likelihood of a reasonable outcome in a trial is grim. Many see the explanation to the disparities as the result of the increase of drug sentences and felonies in order to break up the gangs that plagued low income African-American communities. While it easier to prove drug charges than homicide or robbery, the focus primarily on African Americans has spiraled out of control leading to biases that produce results like those shown above. With the creation of mandatory minimum sentencing to combat heavy drug use, there was also a discrepancy in the sentences attached to the method of drug used. In his article “Racial, Ethnic, and Gender Disparities in sentencing: Evidence from the U.S. Federal Courts,” author David Mustard explains that sentences can also differ based on whether one used smoking or snorting to obtain their high, even if it was the same type of drug. “Over 90 percent of those convicted of possessing 5 grams of crack cocaine, a felony offense that carries a 5-year minimum sentence, are black. This contrasts sharply with penalties for powdered cocaine users, who are predominantly white. Conviction for possessing 5 grams of powdered cocaine is a misdemeanor
punishable by less than a year in jail.” With that in mind, it wouldn’t matter if minorities and white counterparts were arrested with the same frequency, if just the method of drug use set them apart, there would still be a problem that has yet to be resolved. And once offenders enter the criminal justice system, it can be very difficult to disassociate yourself from that label, even if you have successfully become a re-integrated member of your community.
One of the goals of the criminal justice system is to reform and rehabilitate offenders in order to be able to re-integrate them into society. However, with the lack of programs designed for this purpose, indigent offenders continue to have a more difficult time getting back into society, made even harder by the criminal record attached to their name. The University of Chicago Booth School of Business published an article, Identifying the Effect of Unemployment on Crime, which takes a look at the impact incarceration has on employment prospects and the negative outcomes associated with that impact. “To the extent that criminal activity reduces the employability of offenders, through either a scarring effect of incarceration or a greater reluctance among the criminally initiated to accept legitimate employment, criminal activity may in turn contribute to observed unemployment.” Many offenders came from neighborhoods that had low-level employment options before their arrest and conviction, and with laws that prevent them access from things like public housing, many of them find themselves back in that same type of environment which only increases the likelihood that they will return to the same habits and behaviors that got them arrested in the first place. This also serves to further discriminate against minorities who are more likely to have a harder with finding employment following their release. “Evidence shows that black ex-inmates more than their white peers tend to return to communities plagued by poverty, few job opportunities, and greater exposure to criminal activities. Holzer, Raphael, and Stoll (2003) reported that black men, particularly young men with criminal records, faced greater employment barriers, including employer discrimination.” The Research and Development (RAND) Corporation published a study on work and education programs in prisons finding that the implementation of such programs had a positive impact on cutting down on the number of recidivists in the correctional system. “Inmates who participate in correctional education programs had a 43 percent lower odds of recidivating than those who did not. This translates to a reduction in the risk of recidivating of 13 percentage points.” With work and educational programs available, prisoners are not released with no experience, or they have some sort of demonstration of educational level that allows them a few more options than if they had left the prison system empty-handed altogether. The prison system spends enough money providing services for offenders to begin with, you would think they would be a little more invested in making sure people don’t come back.
As stated before, crime doesn’t pay. But when inability to pay earns you a punishment regardless of guilt or innocence, the system has failed to serve all of its constituents equally. However, some solutions are being brought forward. As of 2013 in the District of Columbia, bail will not be set for offenders who cannot afford to pay for it. Work-study programs are being designed to offer offenders a start upon their release. While this can be considered an excellent start, it certainly isn’t enough. The criminal justice system is designed to punish offenders, and also to rehabilitate offenders. Justice should be given to those who deserve, not those who can afford to buy it.