LAW AND POVERTY CRIMINAL JUSTICE SYSTEM AND THE POOR SUBMITTED TO: DR. GULAM YAZDHANI ASSOCIAT PROFESSOR FACULTY OF LAW, JAMIA MILLIA ISLAMIA.
1|Page
AC%NOWLEDGEMENT At the outset, I would like to thank my Tax Law teacher , Dr. GULAM YAZDHANI, for being a guiding force throughout the
course of this submission and being instrumental in the successful completion of this project report without which my efforts would have been in vain. I am thankful to the Librarians, aculty of Law, !amia "illia Islamia for helping me in collecting the relevant material for my project report. I would like to extend my sincere thanks to my friends and family for their constant review and honest remarks.
PREPARED BY: MOHAMMAD SABIR
B.A. LL.B.(HONS.) FACULTY OF LAW, JAMIA MILLIA ISLAMIA
Intr!"#t$n 2|Page
#riminal !ustice refers to the agencies of government charged with enforcing law, adjudicating crime, and correcting criminal conduct. The criminal justice system is essentially an instrument of social control$ society considers some behaviour so dangerous and destructive that it either strictly controls their occurrence or outlaws them outright. It is the job of the agencies of justice to prevent these behaviours by apprehending and punishing transgressors or deterring their future occurrence. Although society maintains other forms of social control, such as the family, school, and church, they are designed to deal with moral, not legal, misbehaviour. %nly the criminal justice system has the power to control crime and punish criminals. The police harassment of homeless people, criminali&ation of behaviours that stem from poverty, and unfair targeting of poor neighbourhoods$ the criminal justice system targets and harasses poor and homeless people. The working class and the poor 'people working and out of work( are stigmati&ed, scapegoated, and mistreated by the criminal justice system. Those unable to afford an attorney often find themselves represented by under resourced, inade)uate and irresponsible public defenders, and are unable to ade)uately defend themselves in court. In addition, the poor may suffer further when public assistance is cut off because of a convicted spouse or family member. It is a myth that the criminal justice system is not biased against the poor. *ut the fact is that nearly everyone commits crime but only the poor are generally punished for it. All classes commit crime. +owever, the poor experience higher rates of arrest, criminal charges, convictions, long prison sentences and denial of parole. This winnowing process ensures that most rich criminals never see the inside of a prison, while overflowing them with the poor.
3|Page
"ost people who interact with the #riminal !ustice ystem are poor. In --, more than half of all state prisoners reported an annual income of less than /-0,000 prior to their arrest. 1hile roughly 203 of all 4.. men of working age are employed full5time, only 663 of state prison inmates were working full5 time at the time of their arrest. %nly 773 of prisoners nationwide have completed high school, while in the general population 263 of all men 80 to 8 years old have a high school diploma. The 4nited tates spend /-9: billion dollars on policing, corrections, judicial and legal services in 800- and only /8.: *illion on Temporary Aid to ;eedy amilies 'TA;(. The poor are increasingly criminali&ed to protect the interest of the wealthy. The homeless are denied access to public space. "ore and more public parks are refusing entry to individuals without children< public money is used to place bars in the middle of park benches to stop people from sleeping on them, and homeless people are being banned completely from certain neighbourhoods in cities like Athens, =eorgia< #incinnati, %hio< and >ortland, %regon. The homeless are denied access to private space. Local businesses often band to form ?*usiness Improvement @istricts, organi&ations created in order to protect the interests of local businesses. The interests of these ?*usiness Improvement @istricts are generally related to the eradication of the homeless presence in their area and often hire private security guards to restrict access to areas of the community based on economic profiling.
The main objectives of the criminal justice system can be categori&ed as follows$
4|Page
B To prevent the occurrence of crime. B To punish the transgressors and the criminals. B To rehabilitate the transgressors and the criminals. B To compensate the victims as far as possible. B To maintain law and order in the society. B To deter the offenders from committing any criminal act in the future.
5|Page
G&n&r' P$nt
%f late, the relevance of our criminal justice system5 both substantive and procedural5 a replica of the *ritish colonial jurisprudence, is being seriously )uestioned. >erhaps the criminal judicial system is based on the laws that are arbitrary and operate to the disadvantages of the poor. They have always come across as law for the poor rather than law of the poor. It operates on the weaker sections of the community, notwithstanding constitutional guarantee to the contrary. There are hardly any people to advocate for the new laws to help the poor, there are practically none to pressuri&e the government and the legislature to amend the laws to protect the week and the poor. Cven after five decades of independence, no serious efforts have been made to redraft penal norms, radicali&e punitive processes, humani&e prison houses and make anti5social and anti5national criminals etc. incapable of escaping the legal coils. The criminal justice system is cumbersome, expensive and cumulatively disastrous. The poor can never reach the temple of justice because of heavy costs involved in gaining access and the mysti)ue of legal ethos. The hierarchy of courts, with appeals after appeals, puts legal justice beyond the reach of the poor. "aking the legal process costlier is an indirect denial of justice to the people and these hits hard on the lowest of the low in society. In fact, the legal system has lost its credibility for the weaker section of the community. %f course, the judiciary in recent years has taken a lead and has come forward with a helping hand to give some relief to the victims of criminal justice in a limited way.
6|Page
ome of the recent developments that have taken place during the last few years in our judicial delivery system to seek redress and accord justice to the poor are worth mentioning. The importance of these developments to the delivery system of justice canDt be ignored. They have revolutioni&ed our judicial jurisprudence and will go a long way in giving relief to the large masses and the common man.
In view of the importance of the subject matter, it is proposed to explain in brief some of the important areas of the criminal justice system that have attracted the attention of the courts in recent years. These are$
-. >ublic interest litigation. 8. *ail justice jurisprudence. 7. >rison justice. E. #ompensation to the victims. 6. Legal aid and legal services.
7|Page
B'$ J"t$#& S*t&+
*ail is a generic term used to mean judicial release from custodia legis. The right to bail5 the right to be released from jail in a criminal case, after furnishing sufficient security and bond5 has been recogni&ed in every civili&ed society as a fundamental aspect of human rights. This is based on the principle that the object of a criminal proceeding is to secure the presence of the accused charged of a crime at the time of the in)uiry, trial and investigation before the court, and to ensure the availability of the accused to serve the sentence, if convicted. It would be unjust and unfair to deprive a person of his freedom and liberty and keep him in confinement, if his presence in the court, whenever re)uired for trial, is assured. %bjectively analysed the criminal jurisprudence adopted by India is a mere reflection of the Fictorian legacy left behind by the *ritishers. The passage of time has only seen a few amendments once in a while to satisfy pressure groups and vote banks. >robably no thought has been given whether these legislations, which have existed for almost seven decades, have taken into account the plight and the socio5economic conditions of :03 of the population of this country which lives in utter poverty. India being a poverty stricken developing country needed anything but a blind copy of the legislations prevalent in developed western countries. The concept of bail, which is an integral part of the criminal jurisprudence, also suffers from the above stated drawbacks. *ail is broadly used to refer to the release of a person charged with an offence, on his providing a security that will ensure his presence before the court or any other authority whenever re)uired. A reading of the above definition make it evident that money need not be a concomitant of the bail system. As already discussed above, the majority of the |Page
population in rural India, lives in the thrall of poverty and destitution, and donDt even have the money to earn one s)uare meal a day. Get, they are still expected to serve a surety even though they have been charged with a bail able offence where the accused is entitled to secure bail as a matter of right. As a result, a poor man languishes behind bars, subject to the atrocities of the jail authorities rubbing shoulders with hardened criminals and effectively being treated as a convict.
!|Page
D$#r$+$n't$n $n Arr&t R't& ;umerous studies show that the middle class conducts just as much, if not more, crime as the lower class. Cven so, police choose to arrest the poorer criminals at a higher rate. "ost studies proving this bias have been on juvenile delin)uency, but keep in mind that teen5agers and early twenty5year olds form the
largest
criminal
age
group.
%ne study interviewed 2E: males and females between the ages of -7 and -9, and found that 22 per cent of them admitted to committing at least one delin)uent offense. *ut 22 per cent of these youth do not have police records< generally,
only
the
poorest
do.
A >hiladelphia study of 7,E:6 juvenile delin)uents found that police referred lower class boys to juvenile court much more often than upper class boys, even for e)ually serious offenses with similar prior arrest records. 1hen it came to upper class boys, the police were more inclined to treat the matter informally with their parents.
D$#r$+n't$n $n Cn$#t$n 1" | P a g e
The rich have several important, if not decisive, advantages when it comes to handling the legal justice system. They can afford bail, which allows them to conduct their own investigations and prepare for trial. They can afford better attorneys 'by itself an enormous edge(, better expert witnesses, better private detectives, better alibis. In fact, rich corporations or individuals often threaten to put up such a huge legal battle that courts often seek to plea bargain away or even
dismiss
the
charges.
%n the other hand, the poor are often represented by a harried public defender or assigned attorney. %ne study found that most public defenders spend an average of five to ten minutes with their clients< even then the subject of conversation is not the facts of the case, but plea5bargaining strategies. '--( ;ot surprisingly, public defenders win dismissals or ac)uittals in -: per cent of their cases, compared to -2 per cent for assigned attorneys, and 79 per cent for privately
hired
counsel.
This situation becomes even worse in death penalty cases. *ecause of the extreme poverty of most of the defendants, and the huge expense of trying a prolonged capital case, few lawyers of merit are willing to take them.
B$' $n S&nt&n#$n11 | P a g e
There are two ways that sentencing is biased against the poor. irst, the rich either write or lobby for the very laws that purport to oversee their behaviour. +arsh sentences for the poor are softened whenever legislators write them for the rich, even though their crimes may be many times greater. econd, judges have shown themselves reluctant to make common criminals out of the communityHs best and finest. *oth of these biases have created wide disparities in sentencing. or example, millionaire !ack #lark received no fine and only one year in jail for cheating stockholders out of /800 million. Get in the same courthouse, a minimum wage worker who had stolen /6,000 received four years in
prison
55
that
is,
-90,000
times
the
punishment.
'-7(
A study of federal and state courts found that the poor were not only found guilty more often, but that they were not recommended for probation 8: per cent of the time, compared to -9 per cent for the upper classes. The poor were also not given suspended sentences 87 per cent of the time, compared to -6 per cent for the upper classes.
T& R$# '& Cr"#$' A!'nt'-& $n t& C"rt S*t&+.
12 | P a g e
>eople that can afford bail are able to leave jail and conduct investigations, leaving them better prepared for trial. +igher5income people can afford better attorneys, expert witnesses, private detectives, and more ?respectable alibis. >eople who can afford to hire an attorney are less likely to be imprisoned. %f the cases in which the defendant was found guilty in federal courts, 223 of defendants with a public attorney received prison sentences, compared to ::3 of defendants with private lawyers, between -0 and -2. In state courts, public and private attorney have similar prison sentence rates. Those who cannot afford bail and come to the court from jail for their trial are more likely to be imprisoned. *etween -0 and -2, in the :6 largest counties in the 4.., roughly 603 of felony defendants with a public lawyer or court assigned counsel were released from jail pending trail while approximately :63 of private lawyers were released.
The poor face harsher sentences simply
because they cannot afford ade)uate legal assistance. The 4nited tates allots just /8.86 per person for civil legal assistance. Cngland allocates /78, ;ew ealand /-8, and %ntario /--.E0.
>ublic defenders are overworked. elony caseloads of 600, 900, 200 or more annually are common for many public defenders, although it is recommended that the annual caseload for a public defender should not exceed -60 felonies, E00 misdemeanours or 800 juvenile cases. or example, public defenders in >hiladelphia were handling between 900 and -,-00 cases per year. *ecause public defenders are overworked, it is not surprising that they win dismissals or ac)uittals less often than privately hired attorneys.
13 | P a g e
ome defendants who cannot afford to hire an attorney themselves are never assigned a public defender. In 8008 there were more than -8,000 guilty pleas entered by people who were not represented by an attorney just in #alifornia alone. #ounties in =eorgia have faced lawsuits after completely failing to provide counsel to misdemeanour defendants, or delaying so long to appoint counsel that the pre5trial wait in jail was longer than the sentence would have been if a conviction had occurred. Clsewhere, suspects are coerced into waiving their constitutional right to counsel in return for a Jdeal,D available only if they plead guilty immediately. Fery few jurisdictions comply with the 4.. upreme #ourtDs decision to extend the right to counsel to people receiving probation or a suspended sentence.
"any death row prisoners have been represented by incompetent and incapable lawyers or in some cases no lawyers at all. In Texas, about - in E death row prisoners was represented by a lawyer who at some point had been reprimanded, suspended, placed on probation, or barred from practicing law in Texas. The same is true for - in 6 prisoners that have faced execution in the past 80 years in 1ashington tate. In Alabama, about E0 of the -26 death row prisoners do not have attorneys. A study by the Innocence >roject of #ardo&o Law chool indicated that in :0 exonerated death row sentences, 783 of these cases occurred because of incompetent lawyers.
14 | P a g e
Cn#"$n
A perusal of the above cases highlights the strong anti5poor bias of the Indian criminal justice system. Cven though the courts in some cases have tried to intervene and also have laid down certain guidelines to be followed but unfortunately nothing has been done about it. There is also a strong need felt for a complete review of the bail system keeping in mind the socio5economic condition of the majority of our population. 1hile granting bail the court must also
look
at
the
socio5economic
plight of the accused and must also have a compassionate attitude towards them. A proper scrutiny may be done to determine whether the accused has his roots in the community which would deter him from fleeing from the court. The court can take into account the following facts concerning the accused before granting him bail$ '-( The nature of the offence committed by the accused. '8( The length of his residence in the community. '7( +is employment status history and his financial condition. 'E( +is family ties and relationships. '6( +is reputation character and monetary conditions. '9( +is prior criminal records, including any record or prior release on recogni&ance or on bail. ':( Identity of responsible members of the community who would vouch for his reliability. '2( The nature of the offence charged and the apparent probability of conviction 15 | P a g e
and the likely sentence in so far as these factors are relevant to the risk of non5 appearance. '( Any other factors indicating the ties of the accused to the community or barring on the risk of wilful failure to appear. It is thought that from the various schemes the government operates for rural employment, loans to farmers etc., a portion of the funds which it transfers to the panchayat for developmental work of the same should be set aside and kept to meet the bail amount for under trials belonging to the particular panchayat K block. The utili&ation of this fund would be in the hands of the elected leaders of the society with the representative of district collector K district magistrate being a part of the system. This would, go a long way in securing freedom for scores of under trials who would then be able to contribute to society thereby playing an important role and forming part of the national mainstream. uch a scenario will have the effect of reducing the burden of over5crowding in jail. The setting up of separate jails, or at any rate isolating under trials from convicts, would prevent hardened criminals from exercising their deleterious influence over under trials. uch segregation would also change the attitude of jail authorities and society at large towards under trials. The under trials who have been charged with petty crimes can further be put in reformative homes instead and asked to do community service till the time they are released on bail. Clementary education facilities must be granted to those under trials who are uneducated and illiterate. Thus, I feel that the benefit of bail should not only be in the hands of a few, but, should be available to the masses including those who do not have the financial capacity to afford it. >ublic officials portray prisons as ?clean industries and promise new jobs to poor communities. +owever, prisons are often cited the same way other 16 | P a g e
polluting industries are focusing on poor communities of colour. >risons use large amounts of local natural resources, and towns where prisons are located are re)uired to pay for the roads, sewers and utilities used by the prisons. >rison construction often takes land out of productive use. >rison jobs typically do not go to residents of the host towns, and employees of the prisons rarely move into town after being hired. ince, the majority of prison employees commute to work, the host townsD local businesses see little, if any, business from the prison employees.
17 | P a g e
B$/$-r'0* V.R. KRISHNA IYER-Social Justice-Sunset or Dawn, Second Edition, Eastern J.S. GANDHI-Law and social !an"e A.#.$ur%!&,- Law and 'o(ert& )'ENDRA *A+I- Law and %o(ert&
1 | P a g e
