Gideon and the Complex Problems of the Criminal Justice System

UCLA Law has been sending out notifications informing students that we should apply for the Gideon Fellowship.  The application form for this fellowship indicates that UCLA has partnered with Gideon's Promise, an organization that focuses on promoting and improving indigent representation in the South.  Students who are accepted into this fellowship will enter a training program with Gideon's Promise and then be placed by that organization in one of several southern Public Defender's offices.

My summer work experience throughout law school has been entirely centered on the prosecution side of criminal law, so I am not sure if I would be viewed as a particularly credible candidate for this fellowship.  I am familiar with the criticism that prosecution-oriented students seek to become part of an oppressive system that all too often disregards the rights and circumstances of defendants.

Moreover, I suppose that I am a bit jaded when it comes to Gideon because I recently read this article by Paul Butler.  The citation is: Paul D. Butler, Poor People Lose: Gideon and the Critique of Rights, 122 Yale L. J. 2176 (2013).  Here is the abstract.

A low income person is more likely to be prosecuted and imprisoned post-Gideon than pre-Gideon. Poor people lose in American criminal justice not because they have ineffective lawyers but because they are selectively targeted by police, prosecutors, and law makers. The critique of rights suggests that rights are indeterminate and regressive. Gideon demonstrates this critique: it has not improved the situation of most poor people, and in some ways has worsened their plight. Gideon provides a degree of legitimacy for the status quo. Even full enforcement of Gideon would not significantly improve the loser status of low-income people in American criminal justice. 

This article is one of many Gideon-focused articles in Yale's symposium issue commemorating the fiftieth anniversary of the landmark ruling that the Sixth and Fourteenth Amendments required states to provide counsel to indigent criminal defendants.  While I think that Butler's article makes some controversial claims, he makes it clear that a Gideon-centered approach to systematic injustice in criminal law is at best incomplete, and at worst, destructive.

Unless there are massive developments on the legislative level, or a fundamental reworking of constitutional doctrine, the most important place to seek change is at the level of the police and prosecutors.  Police have wide discretion when it comes to enforcing the law and arresting individuals, and prosecutors often have a great deal of discretion when it comes to determining whether to prosecute and how high of a sentence to seek.  While some nicely-named commentators have argued for the removal of discretion in the policing process, this removal may be politically unfeasible and can probably only proceed in a step-by-step manner.

In the meantime, students, academic organizations, and programs that care about defendants should not alienate students interested in criminal prosecution - they should instead encourage these students to pursue their career goals while keeping in mind the circumstances of those they prosecute.  Defense-oriented individuals and organizations should work to (non-condescendingly) educate those on the side of the prosecution, even as they oppose them in court.

I have been trying to do my part at keeping an open mind.  After my summer with the district attorney, I wrote my rather defendant-friendly paper on self-defense.  During my summer at the attorney general's office, I wrote a brief where the strongest defense argument I needed to answer was one I raised in my own brief after I discovered it in my own research on the case.  Hoping to remain fair and balanced, however, I have balanced out my defense-oriented briefing and blog posts by writing an essay where I strongly favored prosecution of poor, unaware defendants.

Public defenders are an important part of the system - and Butler recognizes this even while he criticizes Gideon.  One must always keep in mind, however, that defenders are only a part of the system, and a disproportionate focus on this part may fail to affect any meaningful, systematic change in the long run.