Decades ago, the late comedy legend Richard Pryor said about the criminal justice system, “If you go down there looking for justice, that’s exactly what you’ll find – just us.” And for Black and Brown folk, it’s been a criminal “injustice” system featuring over-policing, over-incarceration, longer sentences for the same crimes as whites, as well as never-ending police brutality.
But one of the biggest injustices is the lack of access to quality legal representation and all the negative ramifications that follow, particularly for Blacks, Hispanics and the economically challenged.
A foundational principle of the U.S. criminal justice system is that accused persons are innocent until proven guilty. However, over 555,000 presumed innocent individuals are detained pre-trial. And though the Constitution requires indigent individuals (people too poor to afford an attorney) be provided one, 314,000 people in Texas alone were appointed what legal experts call “mere shadows of proper representation.”
Here are some of the main problems for persons accused of a crime – and for society as a whole – when racial and economic disparities in access to quality legal representation are allowed to persist.
LACK OF RESOURCES, TRAINING, OVERSIGHT
“If you’re accused of a crime and you can’t afford $40,000 to $50,000 [to pay for a lawyer] to prove you’re innocent, then the court system will appoint you one,” said Monique Joseph, holistic services director for Restoring Justice, a non-profit that provides “holistic and loving legal defense and social services” for individuals unable to afford adequate representation.
“Everybody has a constitutional right to have counsel, and that counsel has standards. They have to provide certain types of representation for folks. But oftentimes indigent defendants don’t get that same representation.”
In Harris County, those who can’t afford a lawyer can get one through the county’sPublic Defender’s Office (harriscountypublicdefender.org) or via court-appointed private attorney. The latter are typically attorneys who started their own law firms and are making top dollar via their big-money clients, but supplement their income, often greatly, by receiving pay from the Indigent Defense System for representing “the poor.” Roughly, 80 to 90% of indigent people are represented by a private attorney.
Joseph contends this reality is problematic because there’s neither oversight nor a support system for these private attorneys, many of whom fail to provide even basic representation for their clients while getting fully paid.
“Prosecutors have police departments, government crime labs, forensic experts to help investigate, while defense attorneys don’t have any investigators, experts, or assistants, and too often cases are resolved without the defense engaging in any investigation. So, what we often see is folks stuck in custody, they bring them out for court dates and they sit them in this back room outside of everybody’s view. The attorney comes in and says, ‘Hey, they’re offering you a 35-year plea. You take it or go to trial and can get 99 years.’ The person’s like, ‘I’m not taking 33 years.’ And the attorney says, ‘Okay judge, reset for six months.’ And the attorneys never even come to court half the time,” shared Joseph.
“The lawyer comes out; he just hands another reset paper. There’s just nothing we can do about it,” said Ivory Lathan, who had been incarcerated for over 350 days with no trial when interviewed by NowThis.
One bright spot here, recently Harris County added Managed Assigned Council, but for misdemeanors only. If a client gets a court-appointed “misdemeanor attorney,” there is a body that makes sure they do all the things required of and expected from counsel.
INDIGENT DEFENSE SYSTEM
Every year, more than 70,000 people charged with crimes in Harris County can’t afford to hire a lawyer. According to Joseph, Harris County’s current indigent defense system is set up to profit everyone but the individual needing legal defense.
“Attorneys donate to judges’ election campaigns. Judges then assign these cases to those attorneys, who make their money. Then the attorney turns around and gives the money back to that judge via more donations to keep them elected. That’s what we’re trying to prevent,” said Joseph.
Between 2004 and 2018, Harris County judges appointed attorneys who donated to their campaigns at double the rate, on average. This amounted to an average of about $17,000 per year in additional income for those attorneys, according to a 2020 Georgetown study.
And the more cases a lawyer gets, the more money they pocket. But it often doesn’t equate to more or better legal representation.
Jerome Godinich, known as Houston’s most overloaded attorney, handles roughly 360 felonies annually, more than double the caseload limit recommended by the U.S. Department of Justice.
“We often take a lot of his cases because he’s notorious for making millions off of Black and Brown bodies stuck in the jail. He never goes to visit them. He plea deals people through the system. And when we take his case, he hates it. He hates the fact we come in and provide representation,” shared Joseph, who said one of the people Restoring Justice provided counsel for was a former Godinich client; a Black woman who suffered a mental crisis and got into an accident that unfortunately caused two deaths.
“This woman had no criminal record. She was represented by [Godinich] and sat in jail for three years [with no trial].”
Johnny Ray Johnson and Keith Steven Thurmond were executed in 2009 and 2012 respectively, without having their cases reviewed because their court-appointed lawyer, Godinich, missed the deadline for filing their appeals, according to Stephen Bright, a law scholar and Visiting Lecturer at Yale Law School.
“A lawyer who can’t file his papers on time should not be allowed to practice law. And yet he continues to be appointed year after year, to lots of cases,” said Bright. “Part of it is because he’s made campaign contributions to judges who, in turn, appoint him to cases.”
“The problem of a poor person accused of a crime, of course, they cannot afford to hire a lawyer. So, they’re really at the mercy of the system. They may be assigned a fairly good lawyer who represents them well. They may be assigned a terrible lawyer. And if they’re assigned a terrible lawyer, there may be nothing they can do about that,” added Bright.
WORSENING NUMBERS
From the post-Summer of George Floyd promises of reform to the present, most HCJ numbers are bleaker.
| July 19, 2021 | Sept. 5, 2023 | |
|---|---|---|
| Total HCJ Population(max capacity: 10,000) | 8,781 | 10,800 *9,552 in HJC*1,248 shipped to other jails in Texas and Louisiana |
| Total Pre-Trial Population | 7,529 | 8,275 |
| Average Length of Detention | 208 days | 193 days |
DN: Read about other major challenges and solutions at DefenderNetwork.com
