Race and the Disappointing Right to Counsel
24 Pages Posted: 28 Mar 2013 Last revised: 27 Apr 2013
Date Written: April 2013
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. Gideon did not mark the beginning of a judicial project to eliminate race from the criminal justice system root and branch; three years after Gideon, the Court allowed prosecutors to exercise peremptory challenges of jurors based on race. Since Gideon, the Court has made it practically impossible to invoke racial bias as a defense; so long as those charged are in fact guilty, discrimination in legislative criminalization, in enforcement and in sentencing practices are essentially unchallengeable.
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.
Keywords: Gideon v. Wainwright. sixth amendment, counsel, assistance of counsel, indigent defense
JEL Classification: K14, K42
Suggested Citation: Suggested Citation