In my time as an inmate at Attica Correctional Facility working in the law library, I’ve learned some startling facts about what indigent defendants can face. Indigent defendants—more than 80 percent of total defendants—often receive substandard counsel. A defendant may be innocent but still be convicted or urged to plead out by an attorney for a variety of reasons: The attorney is unwilling to argue a case before a jury due of a lack of confidence, a lack of skill or experience, or a lack of resources to bring a solid case. (I’ve also been repeatedly astonished by the errors I’ve encountered in legal briefs filed by degreed attorneys, but that’s another story.) Worse, when defendants are counseled to plead in order to avoid a jury trial, their attorneys may neglect to mention two important rights as guaranteed in the U.S. Constitution: the Sixth Amendment’s right to counsel and the Fourteenth’s right to due process.
Who’s to blame for this egregious failure to protect the rights of our nation’s underserved? We could blame state and local legislatures—and the federal government—for choosing to fund prison expansion rather than legal aid societies. We could blame those judges who merely rubber stamp cases in which prosecutors have done the hard work of interpretation and adjudication. We could also point a finger at the Supreme Court which has decided many cases on the subject of ineffective assistance of counsel—Strickland v. Washington, Padilla v. Kentucky, just to name two—decisions that have reduced a defendant’s claim to being unwinnable and meaningless. What’s happened here is a transformation of the American criminal justice system, from one where adversaries meet on neutral ground to seek justice to a de facto administrative regime committed to processing as many people as possible.
Hope for Indigent Defendants
But two 2012 Supreme Court rulings offer hope for a better outcome for indigent defendants: Lafler v. Cooper (566 US156) and Missouri v. Frye (566 US137). In Lafler, the defendant was persuaded by his attorney not to accept a plea bargain, his attorney being skeptical that enough evidence for intent could be found. The defendant was in fact convicted of intent to murder although the conviction was later overturned due to ineffective assistance of counsel. In Frye, the defendant’s attorney failed to inform him of two deals offered by the state prosecutors, deals which would have lent better terms to his guilty plea. (The dissent opinion in both cases is worth reading since it asserts that each defendant in fact received a fair trial, regardless of the circumstances of their respective cases.)
Specifically, these two cases have benefitted both indigent defendants and the attorneys who serve them. The defense now has better tools to monitor inequality of sentences and to address issues concerning police investigations and techniques; in addition, these decisions open up more resources for attorneys to uncover exculpatory or impeaching evidence and grant attorneys access to the means to test physical evidence with the cooperation of the prosecution.
Three Types of Bias
It is paramount to note that black men constitute more than 40 percent of the U.S. prison and jail population. If we assume that the law is fair and impartial, then we can conclude that the number of black men in prison directly correlates to the fact that more black men commit crimes. But since we know that, in many cases, the law is neither fair nor impartial, these statistics become highly problematic. Moreover, statistics such as these tend to overlook the law’s historic role in maintaining socially oppressive relations toward minorities. In addition, statistical correlations tend to ignore the connection between those who control the highly complex law system and those who consistently enter the system as defendants: blacks, Latinos, and the indigent. A classic illustration of this concept is the idea that law enforcement views drug possession, drug use, and the drug trade among the poor and people of color as illegal activities, while among affluent whites such activities are seen as a social health problem.
In light of this environment, I’d like to explore three kinds of bias that affect our nation’s criminal justice system—explicit, implicit, and structural—and juxtapose them with three historic Supreme Court rulings. Explicit bias may be considered attitudes and stereotypes that are harbored in our subconscious and are endorsed by society at large as appropriate. For example, if no social norm against an explicit bias exists within a given context, then a person may demonstrate such a bias freely and openly. But if norms prevent the expression of a biased attitude, the bias must be concealed and, some argue, free expression thus chilled. Implicit biases are attitudes and stereotypes that are not consciously accessible through introspection. We probably be surprised at how many people hold such biases, many of which are inappropriate.
Both explicit and implicit biases can result in an absence of fairness in the courtroom. Structural, or institutional biases can also take place in legal proceedings, resulting in a perpetuation of systemic inequalities and unfair practices. These biases are especially insidious because, while they may not be overtly attributable to prejudice against a particular group, they still work to that effect. Consider the judge in a court case: Judges exercise discretion in setting bail, deciding motions, jury selection, evidence rulings, presiding over trials, rendering verdicts, and setting sentences. There is no reason to assume that judges are immune from bias—of any kind—and, in fact, studies have shown this to be true. 
A Look at Three Landmark Cases
To return to the maltreatment of indigent or minority defendants, let’s look at three representative cases. In 1932, several black men were arrested in Alabama for allegedly raping two white women. The state quickly found these men guilty and sentenced them to death. The case went before the Supreme Court (Powell v. Alabama, 287 U.S. 45, 1932) where it was determined that the state trials had indeed violated the due process clause of the Fourteenth Amendment as well as the right to counsel provision of the Sixth Amendment. The Supreme Court website Oyez.org summarized the case as follows: “Alabama officials sprinted through the legal proceedings: a total of three trials took one day and all nine [defendants] were sentenced to death. Alabama law required the appointment of counsel in capital cases, but the attorneys did not consult their clients and had done little more than appear to represent them at the trial. 
In 1942, the Supreme Court heard Betts v. Brady (316 U.S. 455, 1942) in which a defendant indicted for robbery in Maryland claimed indigency and requested a court-appointed attorney. The judge refused the request and Smith Betts pled not guilty while maintaining that he had a right to counsel and the right to argue in his own defense. The trial transcripts reflect a contempt for Betts and his attempt to assert his rights and articulate his case in a lettered fashion. For this, he received a sentence of eight years not, it would appear, for the stated crime but for his temerity in standing before a white judge and speaking his mind. The Supreme Court overturned the Maryland decision and determined that the right to counsel meant that the state could not interfere in the defendant’s request for representation, but that the state was not obligated to provide said representation. 
Accused of breaking and entering a Florida poolroom with intent to commit petty larceny, Clarence Earl Gideon first attempted to defend himself. Ignorant of the law and unaware of the need to declare “special circumstances” to secure representation (poverty, illiteracy—both of which described him), Gideon lost his case and was thrown in prison. He began legal studies and, in 1961, submitted a handwritten petition of habeas corpus. (The story goes that Gideon’s first petition was submitted on toilet paper, that being the only paper to which he had access.) After it was rejected, he followed up with a handwritten writ of certiorari submitted in forma pauperis to the Supreme Court. The result was the landmark 1963 Supreme Court case Gideon v. Wainwright (372 U.S. 335) in which Gideon claimed he had been denied his constitutional right to representation. Gideon received a new trial and was acquitted of the crime of robbing the poolhall. The case, which also overturned Betts v. Brady, resulted in numerous inmates in Florida being granted new trials or being released from prison as well as setting the precedent of assured representation for the indigent.
Justice Not Personal Gain
The three cases above represent bias in all its forms, implicit, explicit, and structural. The nature of these cases reflects the time period in which they took place, in which Jim Crow laws and generations of ingrained class, race, and economic prejudices undeniably influenced the prosecution of justice. Not until the Miranda v. Arizona case of 1966 would the right to legal representation become the law of the land (the central issue of the case was actually self-incrimination). I would implore graduating law students to reflect on these cases and others involving bias or prejudice and to reject their influence when the pursuit of justice is at stake. Don’t let what Thorstein Veblen might have called “avaricious transactionalism” be your guide, sending you down the path of possessive individualism and voracious consumerism rather than that of ardent humanism.
William T. Oree is currently serving a twelve years-to-life sentence at Attica Correctional Facility. A. Ott, P. Nieves, S. Everson, J. Rodriguez, and C.R. Thibeault, also serving at Attica, contributed to this article.
 See Jeffrey J. Rachlinski; Sheri Johnson; Andrew J. Wistrich; and Chris Guthrie, “Does Unconscious Racial Bias Affect Trial Judges?,” , Cornell Law Faculty Publications, 786; https://scholarship.law.cornell.edu/facpub/786; first published in Notre Dame Law Review, vol. 84, no. 3 [March 2009].