Indigent criminal defendants

Persons accused of crimes who, due to their poverty, are not able to adequately provide for their own defense.

Although social scientists have long debated the causes of crime, it is beyond dispute that the impact of the criminal justice system is felt most heavily among the most economically disadvantaged members of society. In city after city, young, unemployed men dominate the criminal dockets. Nearly two out of three incarcerated individuals lack a high school diploma, and less than 8 percent have ever attended college. Controversy concerns whether poverty causes crime or merely funnels deviants into relatively unremunerative and highly risky kinds of criminal activity, where they are more likely to be apprehended. Another theory is that these crime statistics reflect institutional class biases in the criminal justice system, such as the inability of the impoverished defendant to mount an adequate defense. The commitment to equal justice under law is severely tested by a criminal justice system that imposes further disabilities on the most disadvantaged members of the community.Jury, trial by

The Supreme Court noted in Griffin v. Illinois[case]Griffin v. Illinois[Griffin v. Illinois] (1956), “There can be no equal justice where the kind of trial a man gets depends on the amount of money he has.” This egalitarian impulse was most completely manifest in right-to-counsel cases and seemed to peak during the late 1950’s and 1960’s. It was, however, tempered by considerations of federalism and the realization that public aid to all indigent defendants would be expensive and unpopular. In Powell v. Alabama[case]Powell v. Alabama[Powell v. Alabama] (1932), also known as the Scottsboro case, the Court overturned rape convictions of seven itinerant African American youths. The youths were sentenced to death after single-day trials conducted in an atmosphere of racial hostility and at which they had been casually represented by an attorney unfamiliar with Alabama law who volunteered for the case on the morning of the trial. The Court found the trial to be fundamentally unfair. Adequate representation for such vulnerable defendants required the appointment, at public expense, of effective counsel with ample skill and time to prepare a credible defense. However, in Betts v. Brady[case]Betts v. Brady[Betts v. Brady] (1942), the Court confined the right to appointed counsel in state prosecutions to cases in which special circumstances, not including mere poverty, rendered the defendant particularly vulnerable.

The Right to Counsel

Counsel, right toIn Johnson v. Zerbst[case]Johnson v. Zerbst[Johnson v. Zerbst] (1938), the Court found that the Sixth Amendment required the appointment of counsel for all federal felony trials, a right not extended to state legal systems until Gideon v. Wainwright[case]Gideon v. Wainwright[Gideon v. Wainwright] (1963). Gideon well illustrated the issues presented by the indigent defendant. An unemployed drifter with a poor education and a record of petty crimes, Gideon was denied appointed counsel at his trial for breaking and entering a pool hall and stealing change from a cigarette machine. Forced to defend himself, Gideon failed to explore several credible defenses or to adequately cross-examine the state’s single and dubious witness. After the Court overturned his conviction, Gideon was tried a second time. At last represented by an attorney, he was acquitted.

The principle of Gideon was extended to other areas of the criminal process but not comprehensively. Escobedo v. Illinois[case]Escobedo v. Illinois[Escobedo v. Illinois] (1964) and Miranda v. Arizona (1966) extended the right to appointed counsel into the pretrial stages of the criminal process. Griffin required states to waive costs for filing appeals, in this case the expensive production of a trial transcript. The right to counsel was also extended to sentencing but only to the initial appeal. In Ross v. Moffitt[case]Ross v. Moffitt[Ross v. Moffitt] (1974), the Court held that the state need not supply appointed counsel for discretionary appeals to the state supreme court. Presumably, no such right exists for appeals to the U.S. Supreme Court, although the Court has appointed counsel once a case is accepted for review. In Gagnon v. Scarpelli[case]Gagnon v. Scarpelli[Gagnon v. Scarpelli] (1973), the “special circumstances” rule of Betts was revived for probation revocation hearings, requiring the appointment of counsel only for probationers who were unusually disadvantaged beyond their poverty.

Perhaps the clearest example of the Court’s lessened favor of the appointment of counsel is Argersinger v. Hamlin[case]Argersinger v. Hamlin[Argersinger v. Hamlin] (1972), in which the Court declined to extend the Gideon precedent to all misdemeanor cases. It ruled that the trial court needs to provide assistance of counsel only in cases in which the contemplated punishment is incarceration. Misdemeanor courts are known for their summary procedures, in which the mere presence of counsel often results in dismissal of charges. Because even conscientious judges operate under bureaucratic pressure to keep up with heavy caseloads, Argersinger is widely ignored in practice. Most misdemeanor defendants are unlikely to be incarcerated and are anxious to pay their fines and be done with it. For the indigent, however, even a modest fine can have a significant impact on his or her living standard.

Questions of Fairness

An issue yet to be effectively addressed involves the adequacy of counsel for poor defendants, whether appointed or retained. Many defendants are represented by court-appointed public defenders. Despite their talent and good intentions, public defenders tend to operate under the pressure of unrealistic caseloads and inadequate funding. Defendants who, like the Scottsboro men, first encounter their attorney just before trial are not unusual. Without time or resources to conduct a thorough investigation of the case, public defenders are often reduced to arranging a plea bargain. The economics of criminal defense work often place the private attorney in a similar position.

If access to judicial process is fundamental to the fair administration of criminal justice, it would be expected that the Court would facilitate the indigent’s access to its own forum. The Court permits petitioners for certiorari to file in forma pauperis, or as a pauper. The resulting waiver of the Court’s modest filing fees may be more symbolic than substantive, since less than 1 percent of such petitions are accepted for review. In the 1990’s the numbers of in forma pauperis petitioners was the fastest growing segment of the Court’s caseload, which came to account for more than half of all petitioners. Many of these are filed by prisoners alleging deficiencies in their convictions. Most are frivolous, although an occasional in forma pauperis petition, like that in Gideon, results in a significant decision. The Court now requires a person filing in forma pauperis to provide documentation of his or her impecunious circumstances.

Further Reading

  • Casper, Jonathan. American Criminal Justice: The Defendant’s Perspective. Englewood Cliffs, N.J.: Prentice-Hall, 1972.
  • Cole, David. No Equal Justice: Race and Class in the American Criminal Justice System. New York: New Press, 1999.
  • Feeley, Malcome. The Process Is the Punishment: Handling Cases in Lower Criminal Court. New York: Russell Sage, 1992.
  • Lewis, Anthony. Gideon’s Trumpet. New York: Random House, 1989.
  • Reiman, Jeffrey H. The Rich Get Richer and the Poor Get Prison: Ideology, Class, and Criminal Justice. Needham, Mass.: Allyn & Bacon, 1997.

Argersinger v. Hamlin

Betts v. Brady

Cert pool

Counsel, right to

Escobedo v. Illinois

Gideon v. Wainwright

Johnson v. Zerbst

Miranda v. Arizona

Powell v. Alabama