New Article: “Unequal Assistance of Counsel”

New Article: Peter A. Joy, Unequal Assistance of Counsel, Kansas J. L. & Pub. Pol’y 2015.  Abstract below:

There is now, and has always been, a double standard when it comes to the criminal justice system in the United States. The system is stacked against you if you are a person of color or are poor, and is doubly unjust if you are both a person of color and poor. The potential counterweight to such a system, a lawyer by one’s side, is unequal as well. In reality, the right to counsel is a right to the unequal assistance of counsel in the United States. 

The unequal treatment based on the color of one’s skin is reflected by the racial disparity throughout the criminal justice system in which minority racial groups are involved in the criminal justice system as suspects and defendants at rates greater than their proportion of the general population. This is illustrated by the “driving while black” phenomenon in which law enforcement officers initiate traffic stops against persons of color and subject them to searches at a higher rate than whites, even though law enforcement is more likely to find contraband on white drivers than persons of color.

The Sixth Amendment promises the effective assistance of counsel to every person accused of a crime where incarceration is a possible punishment. This guarantee suggests that everyone, rich and poor, is equal before the law. But the reality of the criminal justice system is much different for the majority of those charged with crimes. If one does not have the financial means to hire effective counsel, or is poor and not lucky enough to have a well-funded, effective public defender or appointed counsel, the defendant’s right to counsel is unequal. This disparity is driven largely by the wealth of the accused and falls most harshly on people of color, who are twice as likely as whites to live in poverty and are accused of crimes at rates much higher than their proportion of the population. As a result, class and race are largely determinative of the lawyer, and often the amount of justice one receives.

This article explores how unequal assistance of counsel contributes to unequal justice. The article begins with a brief overview of racial disparities in the ways laws are enforced. The initial step in the criminal justice system, whether the police stop someone, can lead to arrest, charges, and the need for a lawyer. Next, it analyzes the systemic barriers to effective assistance of counsel at the state level, which is driven largely by excessive caseloads and an ineffective assistance of counsel standard that tolerates bad lawyering. It concludes with strategies for achieving more effective assistance of counsel, which emphasize the ethical imperative to provide meaningful assistance of counsel, the importance of data collection by public defender systems, and systemic litigation that positions assistance of counsel claims prior to trials.

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