Stephen B. Bright*
The full text of this article can be found in PDF form here.
My address today concerns the problem of poverty in our court system.
There are many poor people with urgent, unmet legal needs who lack access to
the courts and have no ability to even confer with a lawyer about their legal
problems. I am going to discuss people in the criminal courts, but it is
important to mention the people with civil legal problems, who do not have
access to a lawyer. Our legal rights mean absolutely nothing without a lawyer.
If you are being thrown out of your home illegally, it means nothing if you
don’t have a lawyer to defend you against that wrongful eviction. If you are
being exploited by everybody from banks and big corporations on down, you
probably have no ability to challenge it without a lawyer. If you are in a prison
or a jail and you are subject to all kinds of abuse, there is a violation of the
Constitution, no question about that, but unless you have a lawyer there is no
way to get into court to assert the right to be protected from assault, to be
protected from rape, to be protected from denial of medical care, and to be
protected from all of the other unconstitutional practices and conditions that
occur in prisons and jails every day.
Those of you going into the legal profession should worry about whether
we have a legal system that actually provides justice to people high and low
throughout our society. We are increasingly trending in a direction where
many people who are wronged, who clearly are entitled to some kind of legal
relief, have absolutely no ability to get it because they have no access to a
lawyer. That is also true of some people in the criminal courts.
I am going to address what happens to people accused of crimes in the
state courts. You learn a lot about federal courts, but that is five percent of the
cases. Ninety-five percent of the cases, the great mass of people who come in accused of crimes, come into the state courts. As Michael Barrett has pointed
out, they come into the lower courts, they come into the municipal courts, like
the eighty municipal courts in St. Louis County. They come in on all sorts of
things as minor as a traffic ticket to as major as facing the death penalty.
Ninety-five percent of the cases in the criminal justice system are resolved by
plea bargains. Many people don’t understand that. They watch Law and Order
and other television shows thinking these cases are about cross examination,
that they are about all sorts of machinations that go on in the courtroom. They
are really about plea bargaining. And that doesn’t mean that the skills of trying
a case are not important, or that investigation is not important, or that knowing
legal issues is not important. They are of critical importance, but the vast
majority of cases are going to be resolved by plea bargains. The consequence
of that is the tremendous power that it gives prosecutors to decide, not only
what the person is going to be found guilty of, but what the punishment is
going to be.
That is accomplished with what is charged, sentencing guidelines,
mandatory minimums, and other ways of enhancing sentences. Ninety-five
percent of the elected prosecutors in this country are white. Seventy-some-odd
percent are white men. The prosecutor’s power is shown by the case
Bordenkircher v. Hayes. Paul Hayes wrote a bad check for $88.00. How
would you punish somebody for writing a bad check for $88.00? Would you
send him to jail? Would you send him to prison? Would you put him on
probation? What would you do? Let’s say Paul Hayes has written some bad
checks in the past. This is not the first time. The prosecutor offered Paul Hayes
five years, and Paul Hayes didn’t take it. The prosecutor said that if he didn’t
take the deal then he would charge him as a habitual offender so that he would
serve life in prison. Five years is a pretty severe sentence for writing a bad
check for $88.00. A day or two in jail and requiring Hayes to pay back the
$88.00 would probably be sufficient punishment. But Hayes refused to take the
plea offer, and the prosecutor followed through on his promise. It only takes an
hour or two to try a bad check case, and Paul Hayes was convicted and
sentenced to life in prison.
That tells you a lot of what you need to know about plea-bargaining. What
it says is that you can be told, “Here is what you are going to get if you don’t
take the plea. And here is what we’ll offer you today if you take the plea
today.” People are threatened with the death penalty if they don’t take the plea
offer to a lesser sentence.
*Professor of Practice, Georgia State University College of Law; visiting lecturer at Yale Law School; Visiting Professor of Law, Georgetown University Law Center; former President and senior counsel, Southern Center for Human Rights, in Atlanta, Georgia. His curriculum vitae and publications are available at www.law.yale.edu/faculty/SBright.htm [https://perma.cc/ZH2UJN9A].