"In many courts all over the country today, it is better to be
rich and guilty than to be poor and innocent. And, of course, that is
not equal justice. If the quality of legal representation in criminal
cases does not improve in some places, it is going to become necessary
to sandblast the words 'equal justice under law' off the Supreme Court
building and admit that our courts are like the country clubs and the
skyboxes at the stadiums, available to those who can afford them, but
not the poor" (Bright).
What does this mean? The author seems to feel that the quality of
legal representation in our country seems to increase with the cost of
that representation, leaving the poor in a precarious position.
- Do you agree or disagree?
- Can you think of any examples that support your viewpoint?
In Gideon v. Wainwright, the Supreme Court of the
United States ruled that persons accused of a felony are entitled to a
lawyer in all criminal cases tried in state courts. However, the Court
did not address how states should go about providing a lawyer for the
indigent. Figuring out how to provide these people with adequate
representation is a big issue since they represent a high percentage of
the defendants in this country. At the time of the Gideon decision "the proportion of indigents among state criminal defendants [was] . . . about sixty percent" (Lewis 197).
You live in a state that has a high number of indigent defendants.
You believe that they are entitled to "equal justice under the law." To
achieve that goal, each of the accused must be provided with a defense
that is better than "adequate."
Your task is to work with a group of concerned individuals to answer this question: How will your state ensure high-quality legal defense for indigent defendants?
- Your teacher will assign you to one of the four "base groups." Meet
with the other members of your base group to read the assigned text. If
you have a large class, your teacher will divide the class in half, and
then divide each half of the class into four "base groups."
- Download a copy of the PMI Chart or
construct your own. Then use the information you have gathered in the
designated reading to complete the chart for your assigned group.
- When all of the base groups have completed their section of the PMI
chart, you will move into jigsaw groups as assigned by your teacher,
meaning that you will now be in a group with one member of each of the
other groups. In these jigsaw groups, each person will provide a basic
explanation of the option he or she explored and will address the pros
and cons of that system. As you listen to these reports, you will use
the information to complete the remainder of your PMI chart.
- Next, your jigsaw group will debate the various proposals and decide
which option will work best for your state as a whole. You may select
one of the options discussed or develop your own system. Be prepared to
share your selection, as well as the reasoning, with the rest of the
- Each jigsaw group will present its choices to the class.
Base Group 1: Public Defender
Under this system, certain lawyers agree to work full time defending
indigent clients. Their fees and salaries are paid by the state. The
greatest advantage of this system is that the public defenders become
experts who are knowledgeable in criminal law. Because they have chosen
to defend criminal defendants, they generally believe that all
individuals are entitled to a lawyer and are "innocent until proven
guilty." They differ from lawyers with independent practices who defend
wealthy clients and do occasional pro bono work.
Despite the generally good intentions of public defenders, there are
some drawbacks to this system. Read each of the following articles to
find out what those might be. Be sure to focus on the sections that
address Public Defenders.
Base Group 2: Court-Appointed Lawyers on a Case-by-Case Basis
This option is similar to the public defender system. The difference
is that instead of having a full-time paid public defender on staff, the
judge of the court in which the case is to be tried would appoint local
counsel to represent indigent defendants. Among the advantages of this
system are that local lawyers will rotate through the system. This will
give them—even noncriminal lawyers—the opportunity to experience the
practice of criminal law. Author Anthony Lewis argues that this will be
good for everyone because "the practice of criminal law might be
elevated, the typical corporate lawyer might be educated in social
responsibilities, and the gap in the profession might be narrowed"
(199). Others claim that noncriminal lawyers who are appointed will not
be qualified or motivated to provide adequate defense—they may even look
down upon their clients. Some states have addressed this problem by
appointing only criminal lawyers or by contracting with specific
criminal law firms or "panels" who agree to represent indigent
According to former Attorney General Robert F. Kennedy, the
disadvantages of this system are as follows: The attorneys "are not paid
for their services. They are not reimbursed for their out-of-pocket
costs. They do not receive a shred of investigative or expert help. They
are not appointed until long after arrest, when witnesses have
disappeared and leads grown stale. They often lack the trial experience
essential for a competent defense" (Lewis 195). At the time that Kennedy
made that comment, many states did not pay their court-appointed
lawyers. That has since changed, but as many of the articles note, this
pay is often meager. As for the problem of inexperience, that was
confirmed by a study conducted by the Harvard Law Review, which noted
that the burden of representing indigent accused criminals in the
federal courts fell mainly on "young, inexperienced lawyers, little
versed in the technicalities of the criminal law" (Lewis 195).
To find out how states have addressed these and other issues, read
each of the following articles. Be sure to focus on the sections that
address court-appointed lawyers or contract lawyers.
Base Group 3: Legal Aid Societies
Legal Aid Societies are nonprofit organizations founded to provide
free—or very inexpensive—legal aid, including advice and courtroom
representation, to those who are unable to afford a lawyer. Such
organizations exist in most major cities and are sometimes affiliated
with or sponsored by the local bar association.
This system functions in a manner similar to that of a public
defender's office in that there is a regularly employed staff of lawyers
who represent indigent clients. While they could represent criminal
defendants, most choose instead to deal only with civil cases. Others,
however, are specialized associations, which serve only those who are
charged with the death penalty. The upside of this system is
that lawyers in legal aid associations have chosen this line of work.
This is a strong indication that they believe in the rights of the
indigent. They are by nature committed to the cause and thus will work
hard to develop a strong line of defense. This works to the advantage of
The downside is that the budgets for Legal Aid Societies are often
subject to the whims of the economy because many of them receive funding
based on a percentage of interest earned on certain accounts (called
IOLTA). So, ironically, when the economy is good, many Legal Aid
Societies can serve more people, but when the economy is poor, their
resources are stretched very thin. Some associations must raise money,
often by holding fundraisers or soliciting grants, either from private
organizations or government institutions. Other associations have to pay
fundraisers or hire them, further stretching their budgets.
- Explore the Web site of the Legal Aid Society, which provides free legal services to people in New York City.
- Another take on legal aid societies is the clinic system set up at
law schools. There, law students defend local criminal defendants in
misdemeanor cases under close supervision of the faculty. Read about the
Georgetown University Law Center and think about the advantages and disadvantages of this type of legal aid.
Base Group 4: New Brunswick Option
In New Brunswick, Canada, lawyers have adopted a twist on the
traditional Legal Aid Societies, which are nonprofit organizations
founded to provide free—or very inexpensive—legal aid, including advice
and courtroom representation, to those who are unable to afford a
lawyer. One of the problems with traditional legal aid societies is
money—the funding often runs out. Another problem is that people who
can't afford an expensive lawyer but don't meet the criteria of indigent
can't get a lawyer under this system. Those that do qualify don't
usually don't get to choose who they want to represent them.
As a class, discuss the options selected by the various jigsaw
groups. Then, working individually, respond in writing to the following
- Is there "equal justice under the law" for rich and poor defendants in this country? Explain.
- If not, what do you think needs to be done to ensure that all people receive "equal justice under the law?"
(Note to Teachers: You may choose to discuss these questions as a class.)
- Lewis, Anthony. Gideon's Trumpet. New York: Random House, 1964.
- Steve Bright. "Making Good on the Promise of Gideon v. Wainwright: The Challenges and Rewards of Defending the Poor." [Online] 5 August 2001.