The current issue is always free to all readers

If you need the access available to a
and cannot afford the $50 subscription price, request a complimentary subscrpition here.

Why is it that a wealthy nation such as the United States—with $500 billion to throw away on a useless war in Iraq—cannot scrape up the money to provide legal representation to indigent people accused of a crime?

It's all about priorities. The money is available, but the will is absent.

New Orleans Judge Arthur Hunter ordered the release of 42 people from jail because these and many other indigent criminal suspects do not have legal representation. As a result of the depopulation of New Orleans following Hurricane Katrina, the main source of funding for the public defender's office—traffic court fines—dried up. The office, which represents indigent criminal defendants, shrank from 40 lawyers to 6.

Meanwhile, in Georgia, where lawmakers seem more concerned about such issues as commemorating Confederate History and Heritage Month, the legislature has refused to fully fund the state's public defender system. Apparently, some believe that too much money is spent on the defense of the indigent. Critics point to the case of Brian Nichols, who is accused of killing a judge, court reporter and deputy sheriff in an Atlanta courthouse, as well as a U.S. Customs agent, in 2005. So far, it has cost Georgia $1.4 million for a public defender to defend Nichols.

In a society that values the needs of capital and worships the bottom line, the justice system tilts in favor of green. O.J. Simpson received the best defense money could buy for his murder trial. But why shouldn't every defendant receive the best possible defense, his or her own "dream team," if you will?

The legal profession itself is part of the problem. Coming out of law school, an associate at a corporate law firm may earn as much as a judge, or several times more than a young staff attorney at a public defender's office or legal services agency. With exorbitant law school tuition, rising at a rate far in excess of inflation, many people must forego a low-salary public interest career serving the poor.

The legal profession's gatekeeping system, the bar exam, ostensibly protects the public by weeding out incompetent lawyers. In reality, the exam, not unlike the Law School Admission Test (LSAT) and other standardized testing, traces its roots to the racially-tinged I.Q. test movement, and efforts to prove Northern Europeans' intellectual superiority and exclude minority groups. An expensive, arbitrary and sketchy hazing ritual, it is wholly unrelated to competence or the practice of law. Rather, it has everything to do with economic protectionism, regulating the number of lawyers, and maintaining high salaries for corporate attorneys. This only means that fewer attorneys, particularly attorneys of color, are available to serve underrepresented communities, and thousands, if not millions, of poor and disenfranchised people will continue to go without legal services.

This country does not value serving the interests of the least among us. And criminal detainees and prisoners certainly are the least of the least. Unpopular and often unchampioned, the nation's incarcerated have rights. Indeed, if the rights of the imprisoned and detained are not safeguarded, how can the rest of society guarantee that its rights are protected as well? As the famous poem goes, "Then they came for me, and by that time there was no one left to speak up for me."

Sadly, those who find themselves on the wrong side of the system are punished above and beyond their criminal conviction and sentence. Draconian laws on the state and federal level stand in the way of rehabilitation and reform, keeping more people behind bars with longer sentences, and erecting roadblocks to prisoners who hope to seek redress in the courts. For example, the Prison Litigation Reform Act of 1996 (PLRA), enacted by Congress, ostensibly to stem a tide of frivolous prison lawsuits— such as an inmate who sued over receiving chunky-style rather than creamy peanut butter—has crippled inmates' ability to protect their constitutional rights. The PLRA penalizes indigent prisoners who wish to sue, imposes a severe cap on attorneys' fees, strangleholds the federal court's authority to provide relief when prisons violate the law, and creates hurdles that result in blocking valid claims of prisoner mistreatment and abuse.

As is the case with anything else, a criminal justice system is only worth as much as what we are willing to pay for it. Apparently, in the U.S., if you cannot afford an attorney, one may not be provided to you. If society cannot protect the rights of the accused, it must set the captives free.

BC Columnist David A. Love is an attorney based in Philadelphia, and a contributor to the Progressive Media Project and McClatchy-Tribune News Service. He contributed to the book, States of Confinement: Policing, Detention and Prisons (St. Martin's Press, 2000). Love is a former spokesperson for the Amnesty International UK National Speakers Tour, and organized the first national police brutality conference as a staff member with the New York-based Center for Constitutional Rights. He served as a law clerk to two black federal judges. Click here to contact Mr. Love.