Go Directly to Jail

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My dear Sir, it is quite impossible for me to take on your case. You lack the most important piece of evidence…that you can pay me fee!’; lithograph by Honoré Daumier, 1846

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.

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 …

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