Poor and low-income people experience many disadvantages in American society from infancy through old age. One significant set of disadvantages occurs in the legal system. Much evidence finds that the poor are much worse off than wealthier people in both the civil courts and in the criminal courts. This is because they do not have the money to afford a good attorney, or often any attorney, and because they do not have the knowledge base and “social capital” to succeed in the complex worlds of the civil and criminal courts. Although the Constitution requires effective counsel in criminal cases, in practice, this requirement is rather meaningless because the poor do not receive effective counsel, or at least do not receive counsel that is as skilled and effective as the counsel that a wealthy defendant can afford to hire.
In the civil court arena, recall from earlier chapters that litigation can be very expensive, and that “one-shotters” are at a considerable disadvantage because they simply do not know the way of the courts. These twin problems combine to make it very difficult for low-income people to win justice in the civil courts. If they end up in these courts because of actions taken by a finance company or a landlord, they more often than not lose. If they have a legal problem, they cannot afford an attorney to take action on their behalf. Legal-aid societies help in this regard, but their staff is overworked, and they cannot give clients the same time and energy that wealthy clients receive from a private attorney they hire. For all these reasons, the “haves” come out ahead in the civil courts, and the “have-nots” come out behind, to paraphrase the title of Galanter’s (1974) classic work that discussed this issue. Several studies from the past few decades find empirical support for Galanter’s view that the poor come out behind in the civil courts (Carlin, et al., 1966; Farole, 1999; Songer et al., 1999).
The situation for low-income people in the criminal justice arena is perhaps even worse, if only because their physical freedom may be at stake. Political scientist Herbert Jacob (1978:185) observed long ago that the criminal courts are “fundamentally courts against the poor.” This is because almost all the criminal cases these courts handle involve suspects and defendants who are poor or low-income. Wealthy defendants may commit white- collar crime, but they are much less likely to commit the “conventional” violent and property crimes that are the focus of the criminal courts.
Because almost all criminal suspects and defendants are poor or low-income, we do not really have enough wealthy people accused of violent and property crime to determine how disadvantaged poorer suspects and defendants are in the criminal justice system.
Still, as Jacob (1978:185-186) also observed, “Those few defendants who are not poor can often escape the worse consequences of their [criminal] involvement.” This is partly because, he said, they can afford bail, and they can afford to hire a skilled, private attorney who can devote much time to their case.
Two celebrated cases since Jacob made this observation illustrate his point. After O. J. Simpson, the former football player and movie celebrity, was arrested in 1994 for allegedly brutally murdering his ex-wife and her friend, he was able to afford a highly skilled legal defense team that cost him an estimated $10 million and won him a jury acquittal (Barkan, 1986). A decade later, star basketball player Kobe Bryant was prosecuted for alleged rape; his legal defense probably cost several million dollars and helped him to win his freedom after the alleged victim refused to testify and the prosecutor was forced to drop the charges (Saporito, 2004).
Beyond examples like these, many sociological and journalistic accounts since the 1960s confirm that indigent defendants typically do not enjoy effective counsel or even adequate counsel (Downie, 1972; Fritsch and Rohde, 2001; Strick, 1978; Sudnow, 1965). Criminal cases in the nation’s urban courts are often called “factory-line justice” because overworked public defenders or assigned private counsel have so little time to handle any one case.
When we compare the sentencing of white-collar crime defendants, who can commit crime that is more serious than many violent and property crimes, we see ready evidence of social class bias in sentencing. When corporations produce dangerous products or maintain dangerous workplaces, it is very rare that a single corporate executive is ever incarcerated, even though many people may be harmed or even killed by their companies’ criminal behavior (Barak, 2017). One widely cited study found that California defendants convicted of grand theft were twice as likely as physicians convicted of Medicaid fraud to go to prison, even though the economic loss from the Medicaid fraud was ten times greater than the cost from the grand theft (Tillman and Pontell, 1992).