No Equal Justice: Race and Class in the American Criminal Justice System - Review

Progressive, The, May, 1999 by Dustin Beilke

No Equal Justice: Race and Class in the American Criminal Justice System by David Cole The New Press. 218 pages. $25.00.

It has been thirty-five years since Anthony Lewis wrote Gideon's Trumpet, the celebrated book about Clarence Earl Gideon, a man who was accused of robbing a pool hall in Florida and was easily convicted because he didn't have the money to hire a lawyer. Gideon appealed to the U.S. Supreme Court for the right to representation, and the justices ruled in his favor in 1963. Lewis's book about this case is routinely taught in law schools. "What is not taught, however," writes David Cole in No Equal Justice, "is our utter failure to realize the promise represented by Gideon's case."

Cole, a law professor at Georgetown University and the legal affairs correspondent for The Nation, has written a damning analysis of the American criminal justice system. He explains how the judicial process is stacked against people of color, especially black males. With pinpoint accuracy and an eye for telling detail, Cole shows how nonwhites are disproportionately targeted for arrest, offered little recourse for their defense, given only token opportunity for redress through the appeals process, underrepresented on juries, overrepresented on Death Row, and shunted aside by the Supreme Court.

The injustices are so stark and their effects so dire, Cole contends, that to level the playing field it might be justifiable to reduce the rights enjoyed by the wealthy.

For many observers, the O.J. Simpson murder trial was proof that the criminal justice system is skewed in favor of defendants, that killers and other criminals are able to escape punishment by exploiting a system set up to protect the falsely accused. But Cole shows that most people, regardless of race, are not able to afford a "Dream Team" of highly paid attorneys with the time and resources to press relentlessly for loopholes. Most defendants have to accept the legal assistance of public defenders who may be simultaneously defending dozens of clients. Some will be assigned attorneys who are not even criminal lawyers.

"The poor person facing criminal charges," Cole notes, "not only has no choice in the matter but has no right to be represented by a lawyer experienced in his kind of case, in criminal law generally, or even in trial work. For all practical purposes, he has only the right to be represented by an individual admitted to the bar.... Too often, assistance of counsel for the poor can be like getting brain surgery from a podiatrist."

In recent years, state legislators have attempted to prove their tough-on-crime credentials by starving public defenders of resources. As a result, public defender offices are often too underfunded to hire enough staff attorneys to handle their large caseloads. This forces courts to assign cases to private criminal defense attorneys, but many states pay them so poorly that they end up working below the minimum wage to defend their clients. In Alabama, for example, the statutory pay limit for court-appointed attorneys is $1,000 for all felonies, regardless of how much time the case requires.

Another problem, says Cole, is that the U.S. Supreme Court sets an almost impossible threshold for proving ineffective counsel. Appeals courts have ruled that attorneys who fell asleep, were drunk, or snorted cocaine during trials were still adequately representing their clients. Even in death penalty cases, courts have upheld convictions when the defendants' attorneys were woefully inept.

Cole also draws attention to the police practice of "profiling": the stopping and questioning of anyone who matches a suspect's general description or who may appear "suspicious." Police use this practice to consider virtually any young African-American or Hispanic male as a suspect. The police also use traffic stops as a means of sniffing out drug offenders, he says.

Police officers, Cole adds, often coerce people into "consenting" to otherwise unwarranted searches. Suspects have the right to refuse to be searched, but this is a right people are either not fully aware of or are afraid to assert.

In one Florida county where 95 percent of the residents are white, 70 percent of the drivers stopped by the police were African-American or Latino, according to an Orlando Sentinel study of 148 hours of police videotapes. Cole cites similar statistics all over the United States.

Many police procedures considered standard practice in today's inner cities would cease at once if they were brought to bear on white people with means, Cole argues.

Cole devotes the last section of No Equal Justice to a discussion of solutions. His most provocative suggestion is that we curtail some of the rights that only the wealthy can afford to take advantage of. Since it would be prohibitively expensive for all defendants to buy their own "Dream Team," Cole suggests that we should take measures to ensure that no defendant can spend as much on defense as Simpson did.

This is a bold proposal and one that would likely face at least as much resistance from Cole's friends on the left as it would from those who are content with the status quo.