The Richard J. Childress Memorial Lecture 2016 Keynote
The Richard J. Childress Memorial Lecture 2016 Keynote: The Continuing Denial of Counsel and Assembly-Line Processing of Poor People Accused of Crimes
Stephen B. Bright*
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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].