Low Income, Poor Outcome: Unequal Treatment of Indigent Defendants

Abstract

It is no secret that the law treats poor people worse than rich ones. This is true in criminal law and everywhere else. But some laws do not simply result in disparate impact upon the poor—the way they are written explicitly targets or disadvantages the poor. This Article examines the spectrum of expressly biased laws in four major categories. First, laws that criminalize poverty: bans on poor housing or no housing, traffic laws that require nothing more than paying for things, and cash bail that imprisons people without access to credit. Second, courts impose an enormous number of unwaivable fees at every step of the criminal justice system, and failure to pay results in incarceration—a modern day debtor prison. Third, many criminal procedure rules place the needy on unequal footing. Only indigent defendants are required to suffer reduced expectations of privacy, disclose certain information, face judicial scrutiny, endure low caps on what their attorneys can be paid, or go into hearing without an attorney. And fourth, after conviction, these defendants face unique hurdles to recover for wrongful imprisonment or expensive expungement processes.