Is justice for defendants in criminal cases possible?
The perspective of a criminal defense investigator and ethicist
J. Steven Bromwich
[Note: This is not legal advice]
If you are poor, real justice is unlikely
Justice is elusive for an accused individual who is poor. When I say “justice,” I am talking about more than having a competent lawyer and fair trial. Properly defined justice must include the sum of the entire process.
Justice is defined as right relationship. This means our behavior towards others must be in accord with the dignity and natural rights we possess as human beings. In the judicial system it must also include the government’s right relationship with its citizens in exercising restraint and respecting human dignity and natural rights.
The founders of the United States of America were primarily concerned with government power exceeding what the people could control, especially the power of the government to deprive citizens of freedom. Freedom is a natural right.
Police, prosecutors, and judges are directly in the business of depriving citizens of freedom for committing crimes. They are the government. People who are poor are especially vulnerable to the sheer magnitude of a well-funded government apparatus seeking to prove their guilt and remove their freedom.
Pre-trial
Most defendants cannot afford an attorney. Approximately 80% of state and 90% of federal defendants need a public defender. Private legal representation costs too much. Most public defenders I know have caseloads exceeding 150 defendants. This does not mean public defenders are less competent, just overworked.
Jail
Most defendants cannot afford bail and are therefore detained. If people are innocence until [unless] proven guilty, then we have lots of innocent people languishing in jails for months, even years, awaiting a resolution to their cases.
Pre-trial defendants are usually housed in county jails with people who have been convicted of crimes or taken a plea deal for them. “Innocent unless proven guilty” is a lovely phrase, but it is meaningless when you are forcibly confined in jail and treated like a criminal. I have never met a pre-trial inmate who felt like an innocent citizen in a county jail.
When your freedoms have been stripped, including the freedom to interact with loved ones face-to-face (most are video visits) and having to pay 0.20/minute for phone calls, you may be technically innocent unless proven guilty, but you are nothing more than another inmate in a jumpsuit.
The process is the punishment
Let’s look at an oversimplified example of how an arrest could ruin your life, even if you are innocent. The process, not the facts or outcome, can ruin people’s lives.
You are arrested for Burglary 3rd degree. Kentucky defines this crime as:
“A person is guilty of burglary in the third degree when, with the intent to commit a crime, he or she knowingly enters or remains unlawfully in a building” (511.040).
You entered a building thinking you were permitted to be there. Someone calls the police. When the police arrive, they question the owner who states you have already left but you were there to steal expensive equipment kept in the building (the intent).
The police locate you, ask if you entered the property in question. You say “Yes,” and try to explain. The police arrest you and transport you to the local jail.
Your bail is set at 5000.00 (typical for a class D felony in Kentucky). You cannot even afford the 20% required to make bail. You are assigned a public defender as your legal counsel and remain incarcerated in the county jail pending resolution of your case.
The police released your name on their Facebook page, while the local news outlet published your arrest and mugshot on their website. People predictably condemn you in the comments section and gossip about you around town. Then you lose your job.
Awaiting trial in jail means months without income. You lose your apartment, car, phone service, become delinquent with credit cards, and are racking up daily jail fees. An amazing defense lawyer and investigator work your case and find exonerating evidence. After you spent eight months in jail, the prosecutor dismisses the charges against you. You are released from custody. Awesome, right?
You lost your freedom for eight months, being unable to hug your children. You lost your job, apartment, car, phone, credit cards, your reputation, and you owe the county thousands of dollars for the eight months you spent incarcerated as an innocent person awaiting your day in court.
At least you got justice, right?
About the author
J. Steven Bromwich is a criminal defense investigator and ethicist, with advanced training in history and diplomatic studies. He writes about crime, power, and ethics to help readers navigate modern problems through historical perspective and first principles.