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Introduction: Equal Access To Justice?
| Article
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19330 |
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Section : |
MODERN THOUGHT
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| Issue
Date : |
6 / 1991 |
2,247 Words |
| Author
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Albert W. Alschuler
Albert W. Alschuler is Wilson-Dickinson Professor at the
University of Chicago Law School. |
The impartial resolution of disputes is a basic social service. It is not a service that our society provides very well. The articles that follow offer glimpses of a justice system in serious trouble.
A central theme of the articles concerned with criminal justice is the power of the prosecutor. In America's criminal justice system, about twenty-five hundred elected prosecutors are, for the most part, answerable only to the voters of their communities. No other legal system in the world affords nearly so much power over life and liberty to essentially unreviewed local prosecutors. Defendants--noting the power that these officials exercise in deciding whether to accuse people of crime, in choosing what charges to file, and in plea bargaining--understand that their cases will be decided by lawyers in courthouse corridors, not by judges and juries in courtrooms. As one defendant remarked, "I feel that a judge really ain't shit, you know. He's just put up there--he's supposed to be the head of the show, but he ain't nothing. The person who runs the show is the prosecutor." Another explained, "The prosecutor is the fellow that gives you the time."
Bennett Gershman's article in this symposium describes several forms of prosecutorial abuse, offers some memorable illustrations, and reveals the inadequacy of current remedies for this misconduct. Among the themes of Stephen Schulhofer's paper on justice and the underclass is how plea bargaining forces indigent defendants "to play by the law of averages and abandon their right to an individualized determination of guilt." Gerald Lefcourt's paper on the Racketeer Influenced and Corrupt Organizations Act (RICO) focuses on defendants at the opposite end of the socioeconomic spectrum. This paper reveals how America has moved toward equal justice for the rich and the poor, not by treating the poor better but by treating the rich worse. (As a card-carrying ACLU member, I take perverse satisfaction in the fact that the Wall Street Journal has become a champion of defendants' rights; in speeches to business groups, an editor of the Journal now defines the "liberal" as "a conservative who's been RICO-ed.")
To be sure, most white-collar defendants are not in the same position as Robert H., a defendant who recently spent six months in an Atlanta jail without any formal charges having been filed against him and without ever appearing in court or seeing a lawyer. On the day that Robert H. met the public defender who represented him, the public defender advised him to plead guilty. Robert's was one of thirty felony cases in which this public defender made court appearances that day--and one
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