Go Directly to Jail

1.

In our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him.

—Justice Hugo L. Black, writing for the Supreme Court in Gideon v. Wainwright, 1963

The court’s decision in Gideon v. Wainwright has been a potent symbol of constitutional rights triumphant. Its holding, that the due process guarantee of the Fourteenth Amendment entitles poor criminal defendants to free lawyers in state prosecutions, was all the more appealing because of the romantic story behind it. A powerless Florida prisoner, Clarence Earl Gideon, wrote a letter to the Supreme Court in pencil complaining that he had been tried and convicted without a lawyer. The Court reconsidered earlier cases that had rejected the claim that poor defendants had a right to counsel. When Gideon was retried after the decision, this time with a lawyer, he was acquitted.¹

But the Gideon case has not led to a system of criminal justice in which defendants who are poor, as almost all are, are assured the effective assistance of counsel against the power of the state. Many have at best a fleeting encounter with a lawyer, who will probably advise them to plead guilty. After being held in prison because they cannot raise the money for bail, they are likely to take that advice.

Those are some of the shattering conclusions of Amy Bach’s remarkable book. Other studies have raised doubts that the high hopes of Gideon v. Wainwright were being met. But Bach has done something different: shown us the reality of the criminal justice process in microscopic, human detail. In different places around the country she watched what went on in courtrooms. Her accounts of what she saw should open others’ eyes to unwelcome reality. It is a revealing and important book.

The book does not challenge the rightness of the Gideon decision or its historic significance. Bach praises its recognition that, as Justice Black said, the trial of a criminal defendant without a lawyer cannot be fair. What she makes us understand is that the overwhelming proportion of criminal prosecutions end without a trial, after actions by judges and lawyers that are hasty, may even ignore the law, and lack meaningful accountability.

Bach’s focus is on prosecutions for misdemeanors—lesser crimes subject, usually, to sentences of no more than a year in jail. The criminal justice process we see on television or in fiction involves felony trials for murder, kidnapping, and the like, with high-powered lawyers. But we should not think of misdemeanor cases as unimportant to the defendants. A misdemeanor conviction “can wreak havoc on a defendant’s life,” Bach writes. It gives the defendant a criminal record, which may lead her to being denied custody of a child or excluded from public housing; it may lead to the deportation of a legally admitted immigrant, one with a green card.²

According to Bach, 47 million Americans have criminal records: an astounding figure. Many of them, almost certainly most, acquired their records by pleading guilty to a misdemeanor, which may be as trivial as loitering. Why do they plead guilty? Because, as Bach shows, they do not understand the consequences or think the alternative is worse.

“I didn’t know I was going to jail,” a defendant in Greene County, Georgia, told the judge. No one had told her what might happen to her if she pleaded guilty. The lawyer assigned to represent her, Robert E. Surrency, was too busy to have much if any conversation with her before her appearance in court.

Surrency got to represent indigent criminal defendants in Greene County by making the low bid for a contract with the county in 1987. That year he had forty cases. Fourteen years later, when Bach first met him, he had hundreds. His pay for those was $42,150. Almost all were resolved by guilty pleas; of 1,493 cases in four years only fourteen went to trial. (Surrency won five of those.) Under the pressure of his caseload, speed of disposition meant success. At the end of the first day that Bach watched him in court, Surrency said, “We have successfully done a ten-page calendar in one day!”

In a hallway of the courthouse Bach found a young woman weeping. Tasha McDonald had applied for a Sears credit card under the name of a colleague at work, used it, and been charged with financial identity fraud. She had repaid Sears. But now Surrency had told her in the hallway that the prosecutor wanted her to serve 90 to 120 days in a detention center or jail. She had three children, girls, one of them with a permanent medical condition. If imprisoned, she was afraid she would lose the mobile home where she and the girls lived. She said she wanted to ask Surrency, “How could you be for me when you have never talked to me?”

As it happens, the prosecutor, Wilson B. Mitcham Jr., heard about McDonald in an interview that Mitcham gave to Amy Bach. He said he was shocked to learn that McDonald had a disabled child. He recommended that she serve minimum time in a diversion center, and she saved her home.

“Surrency had little time to talk in detail to his clients,” Bach says,

and so he often had limited information to use in their favor. It was thus difficult for him to bargain with prosecutors to secure a more lenient sentence, nor could he produce the ultimate trump card: a willingness to go to trial when his clients claimed innocence. Many of them risked losing their homes, children, and livelihoods if they pleaded guilty, and yet his actions remained the same.

Bach is hard on Surrency’s performance in the time she watched him, but she has sympathy for him. She makes the point that his contract allowed no expense money for investigations. He would have had to make a special request for funds, and he didn’t want to do that because he thought the Greene County commissioners would be displeased. They, and their public, were reluctant to spend money on indigent defendants. Their thinking was, “They are guilty anyway, what do they need a lawyer for?”

The situation in Greene and other Georgia counties—the burdening of public-defense lawyers with far too many cases, the withering away of genuine representation—was exposed in a series of lawsuits brought by the Southern Center for Human Rights, in Atlanta, whose president and senior counsel, Stephen B. Bright, is a fearless challenger of justice and its institutions. Bright and his team found a defendant in Crisp County who had been held in jail for thirteen months awaiting action on a loitering charge without seeing his appointed lawyer. They showed that in Fulton County (Atlanta) many inmates had spent more time in the county jail awaiting trial than the maximum sentences for their alleged crimes. The Atlanta Journal-Constitution ran a series of articles on the failures in the representation of indigents.

The Georgia Bar and the chief justice of the Georgia Supreme Court, Robert Benham, responded. A commission held hearings, with testimony that embarrassed the system. In 2003 the legislature passed the Georgia Indigent Defense Act, with provisions for more funds and support.

Bach looked at a highly regarded Georgia public defender office, in Houston County. There she found, to her surprise, Robert Surrency. He had left Greene County after being held up as an example of what had gone wrong in the public debate over indigent representation and found a job in Houston County. And he was doing well, respected by the leaders of that office. A supportive structure and funds had made him a changed man.

But the happy ending to the Georgia story did not last. The defense system ran out of money, and the legislature cut its budget. Stephen Bright is filing new lawsuits.

2.

Ordinary Injustice is not just about Georgia or other southern states with a history of disregarding defendants’ rights. One of its more piquant chapters concerns a former city court judge, Henry R. Bauer, in Troy, New York, a small upstate city. From time to time he would impose extremely high bail on defendants charged with such petty crimes as carrying an alcoholic beverage in an open container.

Adam Russell, a preppy-looking man in his twenties, was home on a break from college when he got caught up in a fight at a convenience store. He did not leave the area promptly when the police told him to, and they charged him with loitering. Russell said he had no idea what his crime was, and nobody told him. In court, Judge Bauer did not read him his rights or ask Russell whether he needed a lawyer. The judge ordered him to jail on $10,000 bail. Happily, he had friends and family in Troy. A friend advanced the bail, and a week later the charge was dismissed.

Others, less affluent, were not so lucky. John Casey had a record of petty crimes when he was arrested in 2000 for trespass, loitering, and violation of the law against carrying liquor in an open container. Judge Bauer set bail at $25,000 and sent him to jail without assigning him a lawyer. A week later, in Casey’s absence, the judge entered a guilty plea for him and let him go for time served. The same thing happened two months later: Judge Bauer pleaded a defendant guilty without a lawyer, and sentenced him to time served.

The story of Judge Bauer had a surprise ending, thanks to a petty criminal named Eric Frazier. He was in court in May 2000, charged with stealing $27.77 in goods from a department store. Judge Bauer ordered him held on $50,000 bail. Frazier, outraged, wrote a letter to the New York Commission on Judicial Conduct. He mentioned two other inmates charged with misdemeanors who had also been given bail of $50,000.

After hearings—public, at Bauer’s request—a referee chosen by the commission found that Judge Bauer had failed to inform defendants of their rights, imposed excessive bail, and coerced guilty pleas. The commission, by a divided vote, ordered him removed from the bench. New York’s highest court, the Court of Appeals, upheld the punishment of removal by a vote of 4–3. The court found that Bauer’s failure to advise defendants of their right to a lawyer, coupled with the “imposition of punitive bail all but guaranteed that defendants would be coerced into pleading guilty; it was the only way to get out of jail.”

What struck Bach about the story of Judge Bauer, even more than what he did, was that lawyers regularly in court, including defense lawyers, did not condemn him or even seem to notice his violations of legally required procedure. He remained a highly popular figure in Troy after his fall.

“Ordinary injustice results,” Bach writes, “when a community of legal professionals becomes so accustomed to a pattern of lapses that they can no longer see their role in them.” She cites the well-known case of the sleeping lawyer: Joe Frank Cannon, who repeatedly fell asleep while representing a defendant charged with murder in a Texas trial. The conviction was finally set aside by a federal court of appeals, but only by a vote of 9–5. For Bach, the nagging question was how it was “possible that a defense lawyer could fall asleep during a murder trial, and yet no judge, defendant, juror, or member of the bar sitting in the courtroom, no witness, not even the prosecutor, objected.”

Our system of criminal justice is meant to be an adversary system, as Justice Black said in his Gideon opinion, with prosecution and defense watching and monitoring each other. In fact, in misdemeanor cases (and many felonies), that doesn’t happen. Prosecutors and defense lawyers are too rushed—and too friendly with each other. “Whether through friendship, mutual interest, indifference, incompetence, or willful neglect, the players end up not checking each other,” Bach says of what she observed.

The pressure of caseloads also leads judges to intervene instead of sitting back as an umpire—pushing defendants to take a plea deal, under the pressure of knowing that resistance will make them wait weeks or months in jail for a long-deferred trial date. In her research, Bach saw many defendants plead guilty with no lawyer present. Some accepted sentences higher than the maximum set by law. And nobody except Bach, a visitor from outside the system, noticed. In other words, there is no accountability.

There is no citizens’ group that regularly monitors courts, nothing equivalent to the many watchdog bodies for schools, for example. Bach’s suggestions of remedies for the faults she saw include systematic monitoring and regular scrutiny of statistics on such things as the number of guilty pleas and the amounts of bail. Those would be helpful, but they are not likely to turn our lower courts into models of constitutional nicety. We are talking about state courts—Bach does not deal with federal courts, which are far better supported and more rigorous about appointing counsel but handle only a tiny percentage of the country’s criminal cases. And state and local courts are too diverse to imagine a single reform working nationally.

The truth is that human beings and their flaws underlay much of what Bach observed. In Quitman County, Mississippi, the district attorney did not prosecute a single case of domestic violence in twenty years. The cases were just silently shelved. And no one complained except, in unheard anguish, the victims of brutal crimes.

Bach draws one more conclusion, a provocative one, from her work. The constitutional rights of criminal defendants that judicial decisions have spelled out over the last fifty years benefit a minority of those defendants but deprive the majority of a meaningful day in court.

The argument for that surprising idea is simple. The panoply of rights in criminal procedure—exclusion of dubious confessions and illegally seized evidence, extended examination of prospective jurors, and the like—have made trials so long and expensive that most jurisdictions cannot afford to have many. So lawyers and judges find ways around most criminal protections. Bach quotes a German scholar of comparative law, Thomas Weigand: “By affording the whole collection of procedural rights to a small minority of defendants, the system deprives the great majority of rights available to the accused in most civilized countries”—in particular the right to an actual trial.

Professor Albert W. Alschuler, then of Northwestern Law School, wrote in 1986 that the American jury trial has become “one of the most cumbersome and expensive fact-finding mechanisms that humankind has devised.” The Supreme Court, approving of plea bargains, said in 1971: “If every criminal charge were subjected to a full-scale trial, the States and Federal Government would need to multiply by many times the number of judges and court facilities.”³

It is undoubtedly true that the endless motions and repetitive cross-examinations of a major felony trial would bring the system to a stop if they became routine in city courts or other courts handling misdemeanor prosecutions. But I think we need to be careful in applying that truth.

We do not need to turn every loitering case into the prosecution of O.J. Simpson, and Bach would not advocate that. What we need, fundamentally, is to have lawyers who will actually talk to a poor defendant, learn her story, and use the facts in dealing with the prosecutor and the judge.

And we should value the procedural rights that have been won although they benefit a minority of defendants. Even with those rights on the books, too many serious criminal prosecutions go wrong. Too many innocent men on death row have been saved only by the last-minute interventions of a governor with a conscience. Prosecutors have enormous advantages, and, as Bach shows, the criminal justice system is plainly unjust for thousands of poor defendants.