Neither Equal nor Just: The Rationing and Denial of Legal Services to the Poor When Life and Liberty Are at Stake

Abstract

The ration of legal services for the poor person accused of a crime has been remarkably thin in most of the United States. Despite the constitutional right to counsel established over thirty-five years ago in Gideon v. Wainwright, many states have yet to provide capable lawyers to represent the accused, and the resources necessary to conduct investigations and present a defense. A poor person may be without counsel when bail is set or denied, and during critical times for pretrial investigation. He or she may receive only perfunctory representation--sometimes nothing more than hurried conversations with a court-appointed lawyer outside the courtroom or even in open court-- before entering a guilty plea or going to trial. The poor person who is wrongfully convicted may face years in prison, or even execution, without any legal assistance to pursue avenues of post-conviction review. While in prison, he or she may endure practices and conditions which violate the Constitution, but have no access to a lawyer to seek remedies for those violations. In contrast, the person with adequate resources may secure a lawyer who will make a case for and perhaps obtain release on bail, work closely with the client in conducting an immediate and thorough investigation, present a vigorous defense at trial, pursue all available avenues of post-conviction relief, and challenge any constitutional violations that occur in prison. Attorney General Janet Reno recently observed that if justice is available only to those who can pay for a lawyer, "that's not justice, and that does not give people confidence in the justice system." Yet little is being done to remedy this denial of equal justice. Indeed, the situation is deteriorating in many parts of the country. This article examines the availability and quality of legal services for poor persons accused of crimes at each stage of the criminal justice process--from arrest through trial, appeal, and post-conviction proceedings--and for those convicted of crimes, who languish in prisons and jails in need of access to the courts for protection of their constitutional rights. It will discuss the indifference to injustice on the part of judges, lawyers, legislators, and a public that allows a country with over a million lawyers to leave many of those most in need of legal assistance without counsel at all, and too often with grossly inadequate counsel when any is provided. Finally, it discusses the need for law schools and the legal profession to respond to these grave deficiencies in the system of justice and see that we do not give up on the unfulfilled quest for equal justice.