DATE DOWNLOADED: Mon Oct 30 02:42:40 2023

SOURCE: Content Downloaded from HeinOnline

Citations:
Please note: citations are provided as a general guideline. Users should consult their preferred
citation format's style manual for proper citation formatting.

Bluebook 21st ed.

A. Kenneth Pye, Administration of Criminal Justice, The , 66 COLUM. L. REV. 286
(1966).

ALWD 7th ed.

A. Kenneth Pye, Administration of Criminal Justice, The , 66 Colum. L. Rev. 286
(1966).

APA 7th ed.

Pye, A. (1966). Administration of criminal justice, the Columbia Law Review, 66(2),
286-304.

Chicago 17th ed.

A. Kenneth Pye, "Administration of Criminal Justice, The ," Columbia Law Review 66,
no. 2 (February 1966): 286-304

McGill Guide 9th ed.

A. Kenneth Pye, "Administration of Criminal Justice, The " (1966) 66:2 Colum L Rev
286.

AGLC 4th ed.

A. Kenneth Pye, 'Administration of Criminal Justice, The ' (1966) 66(2) Columbia Law
Review 286

MLA 9th ed.

Pye, A. Kenneth. "Administration of Criminal Justice, The ." Columbia Law Review,
vol. 66, no. 2, February 1966, pp. 286-304. HeinOnline.

OSCOLA 4th ed.

A. Kenneth Pye, 'Administration of Criminal Justice, The ' (1966) 66 Colum L Rev 286
Please note: citations are provided as a general guideline. Users should consult
their preferred citation format's style manual for proper citation formatting.

-- Your use of this HeinOnline PDF indicates your acceptance of HeinOnline's Terms and
Conditions of the license agreement available at
https://heinonline.org/HOL/License
-- The search text of this PDF is generated from uncorrected OCR text.
-- To obtain permission to use this article beyond the scope of your license, please use:
Copyright Information
 THE ADMINISTRATION OF CRIMINAL JUSTICE
A. KENNETH PYE*

The clear mandate of the Constitution after Griffin,1 Hardy,2 Douglas,3

Coppedge,4 and Gideon5 seems to be that the poor man under police investiga-
tion or charged with crime is entitled to the same rights and privileges as a
wealthier citizen. While absolute equality is not required-and, indeed, prob-
ably cannot be obtained-"invidious discrimination" between the rich and the
poor in the administration of criminal justice must be avoided.
Many of those who have participated in the movement to ensure equality
of treatment to the poor defendant in the criminal process have gradually come
to appreciate that any program, plan or project which is designed to achieve
this object should have at least five component parts. The cornerstone of such
a system is an adequate method for providing the effective assistance of coun-
sel to a defendant at each stage of a criminal proceeding. In addition, there
must be some method of assisting the defendant seeking release from custody
pending the disposition of charges against him. Furthermore, there must be
provision for auxiliary services unconnected with the appointment of counsel
which are nevertheless necessary for the fair representation of the defendant.
The program should also contain some organized method of providing assis-
tance in the development of an effective rehabilitation program for those who
have been convicted and of advice and counselling for those who have been
acquitted. Finally, those concerned with the defense of the poor must be ac-
tively engaged in law reform.

I. THE MAGNITUDE OF THE PROBLEM

Initially, it is necessary to determine the number of people in need of legal
services in criminal cases but unable to afford such services; the extent of the
problem will inevitably affect the programs which we develop. The very term
"indigent" defies adequate definition in this context. Indeed, it is fashionable
not to use the term but to speak only in terms of inability to afford.0 Although
such terminology may pose the problem with greater clarity, it provides little
guidance for a solution. One defendant may be unable to afford counsel, un-
able to afford a bond premium, and unable to pay for a needed investigation;
* Associate Dean, Professor of Law, Georgetown University Law Center. B.A.,
University of Buffalo, 1951; LL.B., Georgetown, 1953; LL.M., 1955.
1. Griffin v. Illinois, 351 U.S. 12 (1956).
2. Hardy v. United States, 375 U.S. 277 (1964).
3. Douglas v. California, 372 U.S. 353 (1963).
4. Coppedge v. United States, 369 U.S. 438 (1962).
5. Gideon v. Wainwright, 372 U.S. 335 (1963).
6. REPORT OF THE ATTORNEY GENERAL'S COMMITTEE ON POVERTY AND THE ADMINIS-
TRATION OF FEDERAL CRIMINAL JusTicE 7 (1963) [hereinafter cited as ALLEN REPORT].
Compare District of Columbia Legal Aid Act, D.C. CODE ANN. §§ 2-2201-2210 (1961),
with Criminal Justice Act of 1964, 18 U.S.C. § 3006 A.
1966] LEGAL NEEDS OF THE POOR

another defendant may be able to pay a bond premium, but may lack funds
to pay for a lawyer; a third may be able to afford a $100 fee to hire an attorney
from the "mourner's bench" but cannot afford the retainer required by a
lawyer who charges $25 to $50 an hour and who insists on devoting to each
case the time it deserves. The first defendant is presumably indigent under
any standard. The second may not be indigent per se, but he certainly must
receive appointed counsel if his funds are exhausted. Little thought has yet
been devoted to the plight of the third defendant.
Only during the last few years has there been a sustained effort to ex-
amine the extent of the legal needs of the poor in depth and with sophistication.
In 1963 the Allen Committee completed its classic study Poverty and the Ad-
ministration of Federal Criminal Justice.7 Last year Mr. Lee Silverstein
provided us with our most detailed information in the American Bar Founda-
8
tion's Defense Of the PoorIn CriminalCases in American State Courts.
Mr. Silverstein tells us that there are over 300,000 felony cases in our
state courts each year and that at least half of these cases involve defendants
who are unable to afford a lawyer. 9 While it is difficult to determine what per-
centage of the four and one-half million misdemeanor cases' 0 involve defen-
dants unable to hire a lawyer, one third would probably be a conservative
estimate."L In addition, a high percentage of defendants in the federal courts
need free legal representation.' 2 Some authorities have estimated that as many
as 60 per cent of the defendants in criminal actions in state and federal courts
are financially unable to obtain counsel.' 3 Representation at trial is only one
aspect of the problem. Each year the number of appeals and post conviction
attacks on criminal judgments in which counsel must be appointed increases.
Recent decisions require the appointment of counsel at preliminary hearings
where such proceedings constitute a critical stage in the criminal process.' 4 The
Escobedo case suggests that counsel may have to be appointed at an even
earlier stage if the police are to continue their traditional practice of inter-
rogating suspects.',
Data available for the District of Columbia illustrate the scope of the

7. ALLEN REPORT. The Chairman of the Attorney General's Committee was Profes-
sor Francis A. Allen of the University of Chicago Law School.
8. SILVERSTEIN, DEFENSE OF THE POOR IN CRIMINAL CASES IN AmERICAN STATE
CouRTs (1965) [hereinafter cited as SiLvERSTEiN].
9. 1 SmVERSTmN 7.
10. Id. at 10.
11. See ALLEN REPORT 16-17.
12. Ibid.
13. Ibid.
14. See Escobedo v. Illinois, 378 U.S. 478 (1964) ; United States ex rel. Russo v.
New Jersey, 351 F2d 429 (3d Cir. 1965) ; People v. Dorado, 62 Cal. 2d 338, 42 Cal.
Rptr. 169, 398 P.2d 361 (1965) ; People v. Gunner, 15 N.Y.2d 226, 205 N.E.2d 852, 257
N.Y.S.2d 924 (1965); People v. Frank, 47 Misc. 2d 551, 262 N.Y.S.2d 997 (Dist. Ct.
1965); Blue v. United States, 342 F.2d 894 (D.C. Cir. 1964) (dictum), cert. denied,
380 U.S. 944 (1965).
15. Escobedo v. Illinois, 378 U.S. 478 (1964).
 COLUMBIA LAW REVIEW[ [Vol. 66:286

problem facing urban centers. The District has a population of approximately

763,000 and is the center of a much larger metropolitan area. It ranks in the
highest quarter in the incidence of crime as compared with other cities of
similar size,16 and the crime rate has increased in recent years. In 1964 there
was an increase of 22 per cent in the number of criminal cases disposed of in
the United States District Court1 7 in which felony cases are tried. The increase
in crime and prosecutions has been accompanied by a similar increase in the
number of cases involving the poor. Last year 1510 criminal defendants were
represented by counsel;18 over 61 per cent, 934, received appointed counsel
after filing indigency affidavits.' 9 In addition, at least 600 appointments were
made in collateral proceedings such as petitions pursuant to Section 2255
of the judicial Code, motions for unconditional release from mental hospitals,
motions to reduce sentence, and petitions for habeas corpus. 20 Approximately
200 other appointments were made by the Court of Appeals. 21 The total num-
ber of appointments made last year was approximately 2100 for all felony
proceedings.
Misdemeanor cases and some preliminary hearings in felony cases are
brought before the District of Columbia Court of General Sessions. The num-
ber of indigents appearing before this court is not certain, but at least 7500
persons unable to afford a lawyer are involved each year.2 2 Court-appointed
counsel are also needed in between 300 and 400 juvenile cases each year and
2
in a small number of appeals from misdemeanor convictions.
There is no reason to believe that the District of Columbia is not typical
of most urban areas. The many criminal cases involving indigents must tax
the resources of bar, bench and the community. Creativity and funds must
combine if any effective program for providing legal assistance can be developed
to meet the needs.
II. METHODS R PROVIDING COUNSEL

Certain basic decisions must be made in any program for providing

counsel for the indigent. We must determine at what stages of a criminal
proceeding counsel should be provided. To a large extent these determinations
are being made for us by court decisions requiring counsel at each significant
16. Senate Comm. on the District of Columbia, Crime and Criminal Procedure in
the District of Columbia, S. REP. No. 600, 89th Cong., 1st Sess. 7 (1965) [hereinafter
cited as Senate Crime Report].
17. AimUN. OFFICE OF THE U.S. COURTS, FEDERAL OFFENDERS IN THE UNITED STATES
DISTRICT COURTS 1964, 58 (1965) [hereinafter cited as FEDERAL OFFENDERS REPORT].
18. 1965 LEGAL Am AGENCY FOR THE DISTRICT OF COLUMBIA ANNUAL REPORT 33.
19. Ibid.
20. See COMMITTEE ON THE APPOINTMENT OF COUNSEL OF THE JUNIOR BAR SECTION
OF THE BAR ASSOCIATION OF THE DISTRICT OF COLUMBIA, THE APPOINTMENT OF COUN-
SEL SYSTEMS OF THE DISTRICT OF COLUMBIA 8-10 (1965) [hereinafter cited as JUNIOR
BAR SECTIoN REPORT).
21. JUNIOR BAR SECTION REPORT 12.
22. Id. at 18-20.
23. Id. at 25.
1966] LEGAL NEEDS OF THE POOR

phase of a criminal proceeding. 24 We must also determine whether it is better

to provide the lawyers needed through the assignment of attorneys from the
private bar, through creation of a public defender's office, or by some other
system. The choice is affected by the availability of funds, efficiency of rival
techniques, and general attitudes of the bar, bench and the community with
reference to notions of fairness, rights of a defendant charged with crime,
professional responsibility, the independence of the bar and other factors too
numerous to catalog. It is obvious that no one system is necessarily the best
for every community. In the past we have suffered from too much dogmatism
and too little realization that the differences in individual communities preclude
any "approved school solution" for the problem.
The American Bar Foundation divides the existing systems for providing
legal representation for poor persons accused of crime into four categories:
assigned counsel, public defender, private defender, and a mixed private-public
system 2 r In the assigned counsel system, individual lawyers are appointed on
a case-by-case basis 2 6 The public defender system is based upon the regular
appointment of a lawyer who is compensated from the public treasury on a
salary basis.27 The private defender system involves the regular appointment
of a lawyer compensated by salary from private sources and supervised by
private citizens. 28 The mixed private-public system is a private defender
29
system which receives substantial support from public funds. The assigned
counsel system is by far the most prevalent; in fact, it is the only one used in
2900 of the 3100 counties in the country.30
The assigned counsel system has served us well. Though assigned counsel
in some areas have suffered from inexperience, there can be little doubt of the
devotion or competence of most lawyers. Indeed, the system has probably been
fairer to the indigent defendant than it has been to the bar. In rural areas
it may still constitute the best method of providing counsel. However, in many
urban centers there are simply too many defendants to depend upon assigned
counsel alone. In addition, total dependence on the assigned counsel system
makes it difficult to provide a lawyer at preliminary hearings, much less police
interrogations. 8'
Although the private defender system assures independence by super-

24. See, e.g., Douglas v. California, 372 U.S. 353 (1963) ; Dancy v. United States,
No. 18366, D.C. Cir., Oct. 14, 1965.
25. SLVEaRsTEIN, DEFENSE OF THE POOR IN CRIMuINAL CAsEs IN AirERIcAx STATE
CouRTs-A PRELIMIARY SummARY 5 (1964).
26. 1 SILVERSTEIN 15.
27. Id. at 3940.
28. Ibid.
29. Ibid.
30. Id. at 15. In most states, a moderate fee is paid to assigned counsel, but in some
no compensation whatsoever is awarded. Provision for payment for attorneys has been
made for the first time in the Criminal Justice Act of 1964, 18 U.S.C. § 3006A. See
Kutak, The Criminal Justice Act of 1964, 44 NE. L. Rav. 703 (1965).
31. Allison, He Needs A Lawyer Now, 42 J. Am. JuD. Soc'Y 113 (1958).
 COLUMBIA LAW REVIEW (Vol. 66:286

vision from private citizens, lack of financial resources poses an almost in-
surmountable obstacle to purely private systems. 32 To many knowledgeable
observers, therefore, the answer lies in the public defender system or in public
support for private defender organizations. These systems are less expensive
than the assigned counsel system, at least in large cities with a high volume of
cases, and generally provide comparable representation. 8 Moreover, there is
little evidence to justify the traditional charges that public defenders are less
independent. Nevertheless, as the hearings on the Criminal Justice Act of
1964 indicate, the concept of public defender is still anathema to many.8 4 The
fear of creating a bureaucracy, when added to the desire to use available funds
to compensate fellow attorneys, constitutes an effective barrier to the passage
of public defender legislation in many areas. Furthermore, there are cogent
arguments against giving any small group a monopoly of the indigent cases.
It may often be advisable to have assigned counsel represent the defendant on
appeal and in collateral proceedings. An experienced attorney in private prac-
tice may question settled doctrines which the criminal law specialist has
learned to accept. Indeed, Mallory,3 5 Durham86 and other landmark decisions
are the direct result of the infusion of new ideas from the practicing bar.
The answer for many cities and states lies in a combined public defender-
assigned counsel system, supported by public funds and operated under the
supervision of members of the bar. Such a system has been created for the
District of Columbia by the Legal Aid Act"7 and the Criminal Justice Act of
196438 as implemented by the Judicial Council for the District of Columbia
Circuit.3 9
The Legal Aid Agency for the District of Columbia is charged with the
responsibility of making attorneys available in the various trial courts and
before the committing magistrates of the District of Columbia. 40 The powers
of the Agency are vested in a seven member board of trustees composed of
lawyers chosen by the chief judges of the courts of the District and the Presi-
dent of the Board of Commissioners of the District of Columbia. 41 The Agency
has a staff of attorneys and investigators whose salaries are paid from con-

32. See SPECIAL COMMITrEE oF THE ASSOCIATION OF THE BAR OF THE CITY OF NEW
YORK AND THE NATIONAL LEGAL Am AssoCIATION, EQUAL JUSTICE FOR THE AccusED
51, 69-70 (1959).
33. See 1 SILVFRSTEN 46.
34. Hearings Before the House Committee on, the Judiciary, 88th Cong., 1st Sess,,
ser. 3, at 23, 63, 66 (1963) ; see Kutak, supra note 30, at 719.
35. Mallory v. United States, 354 U.S. 449 (1957) (argued by now Judge Bryant
of the United States District Court, District of Columbia).
36. Durham v. United States, 214 F.2d 862 (D.C. Cir. 1954) (argued by now Su-
preme Court Justice Fortas).
37. D.C. CODE ANN. §§ 2-2201 to 2210 (1961).
38. 18 U.S.C. § 3006A.
39. District of Columbia Implementation Plan, Criminal Justice Act of 1964.
40. District of Columbia Legal Aid Act, D.C. CODE ANN. § 2-2202 (1961).
41. District of Columbia Legal Aid Act, D.C. CODE ANN. § 2-2204 (1961).
1966] LEGAL NEEDS OF THE POOR

gressional appropriations, supplemented this year by a grant from the Defender

42
Project of the National Legal Aid and Defender Association.
Staff attorneys accept appointments in the various trial courts of the
jurisdiction and provide representation before the United States Commissioner.
There is no attempt by the staff to represent all indigent defendants; over
one half of the felony cases, almost all of the misdemeanor cases and all of
the appeals are represented by assigned counsel. 43 Under the Criminal Justice
Act, 44 private lawyers will be compensated in cases in the District Court and
the Court of Appeals. Hopefully, additional funds will permit the Agency to
provide additional counsel in misdemeanor cases which are now entrusted to a
small group of lawyers who represent approximately 8800 defendants each
45
year.
Even with increased appropriations, the system will continue as a joint
public defender-assigned counsel effort. At most the role of the staff attorneys
will be to represent defendants in a limited number of cases: those in which
immediate representation is needed, such as preliminary hearings and coroners'
inquests ;46 the lengthy cases in which appointment of private counsel would
constitute an unreasonable imposition, such as homicide and mail fraud cases;
one third to one half of the other felony cases; most of the mental health cases;
and eventually, a large percentage of misdemeanor cases. Representation in
the numerous other cases will still have to be provided by the practicing bar.
One of the chief functions of the Legal Aid Agency is to provide assistance
to assigned lawyers in criminal cases. These activities cover a wide range of
functions from arranging for a defendant to be brought to the courthouse
for interviews to providing investigative services, maintaining files of instruc-
tions and pleadings, providing advice concerning the attitudes of individual
judges with reference to sentencing, and participation in programs of con-
tinuing legal education designed to improve the level of representation of all
indigents.
After five years of experience with the operation of the Legal Aid Agency,
most knowledgeable observers are convinced that the bar of Washington would
not welcome the return of a pure assigned counsel system. Like many bars,
the District of Columbia bar was once split on the subject of the desirability
of a public defender system. 47 The operation of the Legal Aid Agency has
shown, however, that a mixed public-private defender system can operate
without any of the defects alleged to exist in public defender systems. The

42. See 1965 LEGAL AID AGENCY FOR THE DISTRICT OF COLUMBIA ANNUAL REPORT 6.
43. JUNIOR BAR SECTION REPORT 6-7, 15, 18-22.
44. 18 U.S.C. § 3006A (1964).
45. See JUNIOR BAR SECTION REPORT 18-19.
46. At the present time coroners' inquests in the traditional form are not being held.
The exact statutory basis for this situation, however, is not clear.
47. See Proceedings of Judicial Conference of D.C. Circuit (1959).
 COLUMBIA LAW REVIEW (Vol. 66:286

burden on the bar has been reduced substantially. At the same time the bar
has not lost contact with the criminal process-it continues to display interest
in the system and to contribute imagination and expertise to the defense of
the poor. This combination of public appropriations and responsibility vested
in the bar has proved to be an efficacious method for assuring effective repre-
sentation of defendants.
One of the reasons for the success of the Legal Aid Agency is that its
regular attorneys receive fair compensation 48 and have reasonable case loads. 40
Any system is only as good as its personnel. An effective defender office, if
it is to survive, cannot depend upon a constant stream of motivated young men
who will sacrifice fair pay for trial experience. Nor will good lawyers continue
to accept case loads which are too heavy to be handled competently. Ob-
viously, it is expensive to retain good staff lawyers in sufficient numbers to
provide capable representation; but the poor and the bar will be the victims
if we try to operate any system without effective funding.
Even in those areas that are committed to the assigned counsel system,
consideration should be given to the possibility of having a small staff of
lawyers who could coordinate appointments, provide investigative and research
assistance and be available to handle the kind of cases which require im-
mediate representation. Many defendants have the most need of a lawyer at the
beginning of a criminal proceeding. It will prove very difficult to provide
counsel at these preliminary stages by any other method unless we are to
enshrine the "mourner's benches" of this country as an integral part of the
criminal process. Representation at these levels requires the availability of a
salaried attorney who may be assigned to perform these functions.
Two collateral matters deserve mention. There must be some method of
self-evaluation incorporated into whatever system is selected. Statistics must
be kept and studied periodically. Too often in the past legal aid operations
have counted the number of defendants represented but have kept poor records
on case dispositions. It is vital to establish some method of determining
whether the system being used is working well and some basis for comparing
its effectiveness with the results obtained in other systems. It is not simply a
matter of counting wins and losses, but instead involves keeping records of
pleas of guilty, verdicts of guilty and not guilty, cases dismissed, pleas to
lesser included offenses, favorable dispositions with reference to sentence, and
time spent in various phases of representation." An analysis of such records

48. "The salaries of all employees of the [Legal Aid] Agency ... shall be fixed
by the Board of Trustees, following the salary scale for employees of similar qualifi-
cations and seniority in the office of the United States attorney for the District of
Columbia." District of Columbia Legal Aid Act, D.C. CODE ANN. § 2-2206 (1961).
49. See 1965 LEGAL Am AGENCY FOR THE DISTICT OF COLUMBIA ANNUAL REPORT
28-31.
50. See the Sample Report for One Month of the Legal Aid Agency of the District
of Columbia.
1966] LEGAL NEEDS OF THE POOR

by qualified observers will permit informed decisions concerning what changes

should be made in the system.
There must also be some program for continuing legal education. The
emphasis, of course, will differ depending upon the system utilized. In an as-
signed counsel system it may take the form of criminal practice institutes
where stress is placed on the technical aspects of criminal procedure. Where
young, inexperienced counsel are involved, emphasis may be placed on trial
tactics and strategy. 5 ' Some program of "on the job" training may be de-
veloped. 52 In a system manned by experienced public defenders, it may be
necessary only to keep them abreast of recent developments in other jurisdic-
tions. Whatever its nature, some type of post-law school program is necessary.
The average attorney who graduates from law school knows very little about
the trial of a criminal case. Even the experienced public defender may find it
impossible to keep abreast of the current revolution in criminal procedure.

III. RELEASE FR m CUSTODY

The poor need more than the effective assistance of counsel. They must
be able to obtain release from custody pending a final disposition of charges.
Realistically this means an alternative to bail since a substantial percentage
of the poor will not have the financial resources necessary to pay a bond
premium. In 1963, the median percentage of the defendants charged with
felonies who were unable to post bond in American courts was 56 per cent. 53 In
the nation's capital 52 per cent of the defendants for whom bail was set did
not obtain pretrial release.5 4 A thousand defendants remained in jail for a
median time of 96 days, excluding mental examinations and appeals. 55 Only
15 defendants were released on their personal recognizance. 5" Approximately
40 per cent of the defendants in the misdemeanor cases in the District of
Columbia were unable to make bond. Thus the poor defendant, who would
be placed on probation if convicted, has on occasion been advised by his lawyer
that if he demanded a jury trial and was acquitted, he would probably serve
six weeks in jail in pretrial confinement, but that if he waived his jury trial
and pleaded guilty, he would probably be freed that afternoon. One must
wonder what such a defendant must have thought of the value of his con-
stitutional right to bail and to a jury trial when he was to be incarcerated
during the period in which he was presumed to be innocent and released after
he had been found guilty.

51. See CRIMINAL PRACTICE INSTITUTE OF THE JUNIOR BAR SECTION OF THE BAR
ASSOCIATION OF THE DISTRICT OF COLUMBIA, A TRIAL DEmONsTRATiON (1965).
52. 1965 LEGAL Am AGENCY FOR THE DISTRICT OF COLUMBIA ANNUAL REPORT 11-13.
53. See 1 SILVERSTRIN 7-8.
54. McCarthy & Wahl, The District of Columbia Bail Project: An Illustration of
Experimentation; and a Brief for a Change, 53 GEo. L.J. 675, 685 (1965).
55. Id. at 689, 691.
56. Id. at 684.
 COLUMBIA LAW REVIEW (Vol. 66:286

The Judicial Conference of the District of Columbia Circuit authorized the

D.C. Bail Project in 1963, after an exhaustive report by a committee of the
Junior Bar Section of the Bar Association of the District of Columbia and
a recommendation from a Judicial Conference Committee, headed by Circuit
Judge John A. Danaher. A Ford Foundation grant to Georgetown University
made possible the initiation of the project in January of 1964. The basic
operation of the project is simple; in general it is modeled after the successful
Vera Foundation Project in New York. 57 An initial investigation is made of
arrested defendants to determine whether it is probable that they would re-
turn for trial if they were released on their personal recognizance. A total of
1674 recommendations were made during the first twenty-two months of the
District of Columbia program in felony and misdemeanor cases; 1433 de-
fendants were released on personal recognizance by the courts of the District
of Columbia.58 Not all of these were indigents, but it is quite clear that a
substantial percentage of them were individuals who could not have made
bond. Of the 1433 defendants released on their own recognizance only 43
(approximately 3 per cent) failed to appear on the appointed day; all except
one of these had been charged with a misdemeanor. 2.2 per cent are alleged
to have committed serious crimes during the period of their release; slightly
more than 7 per cent are alleged to have committed lesser offenses.50 Prelimi-
nary research indicates that persons who obtain their pretrial liberty stand a
much better chance of obtaining probation than those who are incarcerated
before trial. 60 Obviously, this result is due in part to the similar criteria used
in determining whether pretrial release should be permitted and in determin-
ing whether a defendant should be released on probation following a convic-
tion. To what extent the fact of pretrial release itself is weighed in granting
probation is now under study.
Bail pending appeal may not be a matter of right, but it is usually avail-
able to the person who can afford a sufficient premium. If any bond is re-
quired, the indigent is usually left without relief. The possibility of release on
61
personal recognizance on appeal should not be neglected.
We cannot expect a court to release an individual on personal recog-
nizance unless someone has provided the court with the information the judge
needs to know in order to determine whether the defendant is a "good risk."
A trial judge or an appellate judge is not in the position to determine on the
basis of the matters contained in the usual pretrial records whether a de-
57. For a description of the operations and results of the Vera Project, see Ares,
Rankin & Sturz, The Manhattan Bail Project: An Interim Report on the Use of Pre-
Trial Parole, 38 N.Y.U.L. REv. 67 (1963).
58. See ITmUm REPoRT, D.C. BAIL PoJzcr (Nov. 1965).
59. Ibid.
60. See McCarthy & Wahl, supra note 54, at 699; McCarthy, Practical Results of
Bail Reform, FED. Pios., Sept. 1965, pp. 10, 12.
61. See Pannell v. United States, 320 F.2d 698, 699 (1963) (concurring opinion
of Wright, J.).
19661 LEGAL NEEDS OF THE POOR

fendant is likely to flee the community. Some systematic organization for pro-
viding this information must be created if we are to assist the indigent in
obtaining and maintaining his release from custody before a final judgment is
62
entered.
The "Manhattan Summons Project" in New York City63 illustrates an-
other interesting possibility for the granting of pretrial release. This project,
which operates in two selected precincts of the city, is limited to cases involving
the misdemeanors of petty larceny, simple assault, and disorderly conduct.
When a person is arrested on the street by a police officer and brought to the
precinct, he is interviewed by a member of the Vera Foundation staff. The
staff member attempts to verify by telephone the information obtained through
the interview. If the arrested person qualifies for a recommendation, the staff
member recommends to the police officer in charge that the man be issued a
summons in lieu of detention pending appearance before a magistrate. If the
officer agrees, a summons is issued directing the arrested person to appear in
court on a certain day in the future, at which time the Vera Foundation may
make a further recommendation to the committing magistrate that the de-
fendant be released on personal recognizance.
Summons in lieu of arrest offers interesting possibilities for obtaining
the pretrial release of many defendants in misdemeanor cases. Unfortunately,
in many areas such a project cannot be operated since some statutes require
that when a policeman arrests a person who commits an offense in his presence,
the offender must be presented without unnecessary delay before a committing
magistrate. 64 The common absence of specific authorization to the police to
proceed by summons instead of arrest may preclude widespread acceptance of
what appears to be a worthwhile development.

IV. REHaABILITATION

A sound system for providing for the legal needs of the poor should also
include the incorporation of a rehabilitation program as part of the function
of providing representation for indigents accused of crime. Every community
has private and public agencies which provide social services for the poor. The
concept of a suspended sentence and/or probation is an integral part of the
sentencing process in most courts. The defense counsel must be able to utilize
the services of the community for the purpose of proposing a realistic program
for rehabilitation in the event of conviction and for advising and counselling
the defendant in the event of acquittal. Too often the concern of those engaged

62. Legislation has been introduced in Congress to accomplish this on a permanent

basis. S. 2721, 89th Cong., 1st Sess. (1965).
63. See The Manhattan Summons Project, Address by Leonard E. Reisman, Insti-
tute On the Operation of Pretrial Release Projects, Association of the Bar of the City
of New York, October 15, 1965.
64. See, e.g., D.C. CoDE ANN. § 4-140 (1961).
 COLUMBIA LAW REVIEW (Vol. 66:286

in the administration of criminal justice ends with the verdict or at least at

the time of sentencing. They forget that the defendant who has been acquitted
is still poor and has substantial problems to face when he leaves the court-
room. They forget that a trial judge must be provided with a realistic program
for rehabilitation if he is to grant probation rather than impose imprisonment.
The Legal Aid Agency for the District of Columbia has begun an experimental
program in Washington 65 which will enable defense counsel to obtain pre-
sentence reports prepared by a social scientist. Some background information
is necessary in order to appreciate the importance of this innovation.
In the District of Columbia for 1964, 77 per cent of the defendants indicted
in 1964 were convicted, over one half of the convictions resulting from pleas of
guilty. 6 6 Sentencing is therefore the crucial phase of the process for most
defendants for whom counsel is provided. Pre-sentence investigations are
conducted by probation officers routinely, but it is customary to deny defense
counsel access to the investigation reports. 67 Counsel may talk to the probation
officer and submit such favorable data as he can accumulate. He may ask for
leniency at the sentencing hearing. But unless he undertakes an independent
investigation, the shroud of secrecy which surrounds the pre-sentence report
prevents the defense counsel from effectively aiding his client.
The experimental program of the Legal Aid Agency is designed to provide
a defense counsel with background materials which will assist him in presenting
a reasonable alternative to imprisonment in appropriate cases. An Agency
staff member with a social science background interviews the defendant. He
discusses the case with defense counsel and advises him of the services avail-
able through local private and public agencies. Agencies able to provide as-
sistance which the defendant needs are contacted to determine whether they
are willing to provide the services required. Efforts are also made to obtain
employment for the defendant and to obtain job training in the event that he
is unskilled. The defense counsel and the staff members then submit a re-
habilitation program to the court in the form of a defense pre-sentence report.
This report often deals with matters such as family, school, religion, employ-
ment, criminal record, special physical, mental or emotional problems, letters
of character reference, assurance of professional therapy upon release, present
employment or promised position upon release, and assurance of counselling or
specialized training. Thus the defense is not totally dependent upon the
probation officer's sources of knowledge, his evaluation of the facts brought
65. Keys, Extra-Legal Help For Defendants, 24 LEGAL Am BRIEF CASE 15 (1965).
Mr. Keys originated the program.
66. FEDERAL OFFENDERs REPoRT 58-59. Less than 100 defendants of the 1442 indicted
last year were acquitted. Ibid. Most of the cases in which no conviction occurs involve
the dismissal of charges by the Government.
67. See Higgins, Confidentiality of Presentence Reports, 28 ALBANY L. REv. 12, 15,
35 (1964).
1966] LEGAL NEEDS OF THE POOR

to his attention, or his relationship with other social agencies whose help is
needed. A few examples may indicate how the program works.
Last spring a defendant was charged with unauthorized use of a motor
vehicle for the sixth time. He was twenty-five years old and had never com-
mitted an offense of violence. He had received probation for the first two
offenses and was imprisoned for the third, fourth, and fifth car thefts. After
release into the community, he had never been given any outpatient psycho-
therapy even though an earlier diagnostic evaluation classified him as a
borderline schizophrenic with passive tendencies. He had received limited
psychotherapy and group therapy while in prison. He had no realistic home
environment. At the request of the staff member and defense counsel, two
independent psychiatrists were asked to examine the defendant and each stated
that imprisonment would serve no useful purpose and recommended release
to the community in a halfway house setting. A private charitable facility
promised to accept him, and Georgetown University's outpatient psychiatric
service agreed to provide him with the prescribed treatment. On this basis
probation was granted.
A second defendant, charged with assault with a dangerous weapon, had
received probation as a juvenile and had acted violently two or three times
during juvenile days. He subsequently married and was the father of one
child. Pretrial release and employment were arranged for him. A psychiatric
examination resulted in a diagnosis of mixed psychoneurosis (severe anxiety
and compulsive features). The doctor felt, however, that the defendant was
motivated towards solving his problems and would not be a menace if placed in
society. An outpatient psychiatric clinic agreed to give him psychotherapy if
probation was granted. The Agency staff member obtained assurance from
the employer that the defendant would be provided with training in a skill
that would provide him with remunerative employment. On the basis of these
assurances, the trial court granted probation.
A third defendant pleaded guilty to housebreaking. He was twenty-eight
years old with a record of prior convictions and imprisonment. He was married
and the father of three children. His antisocial activity dated back to 1949.
He had been involved with narcotics since 1952, although he was not fully
aware of his addiction until some time in 1959. The staff attorney thought that
the defendant's alleged offense was an outgrowth of his need to obtain nar-
cotics. A psychiatric examination substantiated the opinion. The defendant
was released on bond. During the three-month period in the community before
sentencing there was nothing to indicate that he was using drugs. Arrange-
ments were made for him to begin outpatient treatment at Georgetown Uni-
versity Hospital's Outpatient Clinic. He made arrangements to pay for these
services himself. Shortly before the sentencing date the defendant applied for
 COLUMBIA LAW REVIEW (Vol. 66:286

and secured a job as a management trainee with a bargain store chain. The
staff advocated probation on the grounds that (1) the defendant had never
before been given probation and that imprisonment had not proved capable
of changing the defendant's well-established pattern of behavior, and (2) the
defendant's own efforts to remedy his situation were of great merit and should
not be interrupted. The court granted probation with the admonishment that
it would be the defendant's last chance.
The services of the staff are similarly available to the defendant who re-
ceives probation and then finds that he needs assistance. An Agency attorney
represented one twenty-year-old school dropout who had been charged with
robbery. The court suspended execution of the sentence and granted proba-
tion for a four-year period. His probation officer found him a job as a busboy,
but this work experience was not satisfying for the boy. He contacted the
Agency lawyer and requested help. The staff suggested that the boy enter a
skilled vocational training program. He was receptive to the idea and enrolled
in a Manpower Development Training Program designed to teach him dry
cleaning. When he completed the program, the staff arranged for an interview
with a local dry-cleaning firm which hired him as a presser on a trial basis.
He is now employed on a permanent basis, having worked for six months.
The rehabilitative program is not designed solely for the defendant who
seeks or obtains probation. A defendant who has been acquitted may need
assistance as much as one who has been convicted and placed on probation.
In the first place it is obvious that some defendants who have committed
crimes are able to escape conviction. Furthermore, individuals who may not
have been guilty of a charged offense may be plunged back into an environ-
ment in which the probability of future crimes is great. In a number of cases
the Legal Aid Agency has sought to obtain employment, counselling and
psychiatric assistance for defendants who are acquitted or whose cases have
been dismissed.
Similar services should also be available to defendants who have been
convicted and imprisoned. One prisoner, convicted of robbery, was a chronic
alcoholic. Since he had been represented at trial by a staff attorney, he in-
formed the staff of a forthcoming parole hearing. The prisoner was inter-
viewed by a staff member on two different occasions. A program of participa-
tion in outpatient treatment at an excellent community mental health center
was proposed. The doctor in charge of the alcoholic rehabilitation program
interviewed the prisoner in jail, and thereafter the hospital agreed to accept
the prisoner if parole were granted. After the prisoner had agreed to enter
the program, a favorable report was sent to the parole board which granted
parole, releasing him six months before expiration of sentence.
More must be done. The legal problems of a poor man do not end with
a final judgment. His family needs legal assistance in civil matters while
 LEGAL NEEDS OF THE POOR

he is in prison. He needs to maintain a relationship with counsel to advise

him prior to parole hearings and perhaps to prepare a motion for the reduction
of sentence or a collateral attack on his conviction. It is extremely helpful to
the prisoner if someone assists prison or parole authorities seeking employ-
ment for him upon his release.
The results of the rehabilitation program in the District of Columbia
indicate the fallacy of attempting to isolate the needs of the poor in the ad-
ministration of criminal justice from the overall impact of poverty upon the
law. Crime, criminals, falsely accused defendants, and the criminal process
do not exist in a vacuum. Many crimes are unrelated to economic status, but
many have their roots in poverty. A system which is content to provide counsel
in a criminal trial and to ignore the problems of pretrial release, the social
problems resulting from the defendant's poverty and his incarceration, and the
prospects for his rehabilitation, is very much like a doctor giving morphine
to a patient who has a leg infected with gangrene. It may give temporary relief
from the pain but it does not help to solve the problem. The infection will
continue to get worse unless something is done about the cause of the pain.
Obviously a court-appointed counsel will not be able to concern himself
with all of these problems. He may be fully occupied with the problem of
defending his client. He needs other resources if the full job is to be accom-
plished. A sound system for the administration of criminal justice should have
some component to deal with matters of this kind.

V. AUXILIARY LEGAL SERVICES

A fourth component of a system for assisting the poor in criminal cases

can best be described by the generic term auxiliary services. The most obvious,
and perhaps the most vital, of these are investigating services, provided by a
permanent staff"8 or made available through funds which permit the hiring of
investigators for special cases 9 and reimbursement for defense attorneys for
out-of-pocket costs 70 incurred in conducting investigations on their own.
Present discovery provisions in federal criminal cases permit a defendant
to obtain only those documents which were obtained from or belonged to him,
or which were obtained from others by seizure or process.7 ' In addition, the
subpoena power has been interpreted to permit access before trial to materials
which are admissible in evidence.72 The Supreme Court Advisory Committee
has recognized that these discovery provisions are inadequate. In its proposed
changes the Committee has recommended that the defendant should have ac-

68. See District of Columbia Legal Aid Act, D.C. CODE ANN. § 2-2201 (1961).
69. See Criminal Justice Act of 1964, 18 U.S.C. § 3006A.
70. See District of Columbia Legal Aid Act, D.C. CODE ANN. § 2-2207 (1961);
Criminal Justice Act of 1964, 18 U.S.C. § 3006A.
71. FED. R. CRm. P. 16.
72. Bowman Dairy Co. v. United States, 341 U.S. 214 (1951).
 COLUMBIA LAW REVIEW [Vol. 66:286

cess to documents, books, papers, and tangible objects in the possession of the
government regardless of the manner of acquisition and without reference to
ownership. 3 The Committee has also recommended that the defendant be
permitted to see his own statements in the possession of the government as
well as results and reports of scientific examinations and tests.7 4 These salutary
proposals would at least give the defendant an opportunity to study the
autopsy report in a murder case where the cause of death is in issue-hardly
a radical idea.
Even if these proposals are adopted, a defendant still will have no right
to learn the names and addresses of the witnesses known by the government
to have knowledge relevant to the case; he will have no right to inspect pre-
trial statements made by a co-defendant in a joint trial; nor will he have any
means of obtaining the record of out-of-state convictions of government wit-
nesses.75 American criminal procedure is unique in that it deems it fair for the
government to conceal the identity of witnesses whom the defense counsel
must cross-examine. Our notions of fairness are apparently not insulted by the
practice seen in some cases which permits the government to impeach the
defendant by proof of prior convictions, but at the same time denies counsel
access to the criminal records of government witnesses and thereby permits
the government informant to testify without danger of effective impeachment.
As long as criminal discovery continues in these primitive stages there will
be a vital need for investigative assistance.
There should also be funds for expert witnesses if the defendant is not to
be required to rely upon the opinions of the government experts in cases where
ballistics, psychiatric testimony, handwriting analysis, or blood tests may be
76
crucial.
There are other auxiliary services which may not be so obvious. Perhaps
the most important is provision for a court reporter and a verbatim record.
The casual observer would probably think that the Constitution requires such
a record after reading Griffin v. Illinois. However, in the shadow of the Wash-
ington Monument, the District of Columbia Court of General Sessions regu-
larly tries defendarits in misdemeanor cases with no reporter present because
sufficient funds have not been appropriated for that purpose. Appeals must be
based upon an agreed statement of proceedings and evidence, signed by counsel
73. COMMITTEE ON RULES OF PRACTICE AND PROCEDURE OF THE JUDICIAL CONFERENCE
OF TEE UNITED STATES, SECOND PRELIMINARY DRAFT OF PROPOSED AMENDMENTS TO
FEDERAL RULES OF CRIMINAL PROCEDURE, Proposed Rule 16 (1964).
74. Ibid.
75. See Pye, The Defendant's Case for More Liberal Discovery, 33 F.R.D. 82, 92
(1963).
76. See 1965 LEGAL Am AGENCY FOR THE DISTRICT OF COLUMBIA ANNUAL REPORT
10. These funds were made available to the Legal Aid Agency under a grant in Sep-
tember 1964 by the National Defender Project of the National Legal Aid and Defender
Association.
19661 LEGAL NEEDS OF THE POOR

and the trial judge. 7 It is not surprising that few appeals are noted under
this procedure. 78
Likewise, provision must be made to assure that the indigent is permitted
to assert his right to compulsory process to ensure the attendance of witnesses
upon the same terms as a rich defendant. In the federal system there is some
doubt whether a United States Commissioner has authority to issue subpoenas
in forma pauperis to require the attendance of witnesses at a preliminary
hearing. 79 In order to require the attendance of witnesses at trial, an indigent
must file a motion supported by affidavit in which he states the names and
addresses of the witnesses sought to be called and the testimony which he
seeks to elicit from them.80 The Rule requires that the motion must be served
on the United States Attorney, thus granting effective discovery to the gov-
ernment at a time when the government is not required to reveal to the
defendant the identity of any of its witnesses, much less their expected testi-
8
mony. '

VI. REFoiu WITHU AN EYE TOWARD THE POOR

One final matter deserves consideration. No system for providing as-

sistance to the poor in criminal cases can be truly effective unless it develops
a concern for the criminal process as a whole and reflects this concern in
efforts to reform the process through legislative and administrative action.
Before there can be reform, there must be a real understanding of how
the criminal processes work and what their implications are for the poor. The
desirability of the Mallory rule and of counsel at preliminary hearings, the
absence of meaningful discovery in criminal cases, the requirement of posting
77. See RULES OF THE MUNICIPAL. COURT OF APPEALS FOR THE DISTRICT OF COLuTmIA,
Rule 21(f) (1958). The recording by right might be effected under the supervisory power
of the Court of Appeals of the District of Columbia if the court wishes to accept the
government's contention in three pending cases. See Tate v. United States, No. 19177
(scheduled for argument November 19, 1965) ; Bond v. United States, No. 19281; Edelin
v. United States, No. 19556. The government, wishing to avoid the application of a con-
stitutional standard, has stipulated that the court has statutory authority to provide funds
to pay for clerical records of proceedings in the Municipal Court of General Sessions
This authority is allegedly derived from 28 U.S.C. § 1915 (1964) which, inter alia,
provides for appeals in forma pauperis and applies to any court of the United States.
78. Compare the number of cases filed in the United States Branch of District of
Columbia Court of General Sessions in calendar 1964, 11479, and the number of appeals
taken to the District of Columbia Court of Appeals from the United States Branch in
calendar 1964, 59, with the number of cases brought in United States District Court
for the District of Columbia in fiscal year 1964, 1442, and the number of criminal ap-
peals docketed in the United States Court of Appeals for the District of Columbia in
calendar 1964, 262. These statistics are based upon information obtained from JUNIOR
BAR SECTIo REPORT 12, FEDERAL OFNDERS REPORT 59, the Clerk's Office of the Court
of General Sessions, and the Clerk's Office of the District of Columbia Court of Appeals.
79. See Washington v. Clemmer, 339 F.2d 715 (D.C. Cir. 1964).
80. FED. t Car. P. 17(b).
81. See COMMTmE ON RULES OF PRACTICE AND PROCEDURE OF THE JUDICIAL CON-
FERENCE OF THE UNITED STATES, SECOND PRELIMINARY DRAFr OF PROPOSED AMEND-
MENTS TO FEDERAL RULES OF CRIMINAL PROCEDURE, Advisory Committee's Note to Fed.
R. Crim. P. 17(b) (1964).
 COLUMBIA LAJW REVIEWV (Vol. 66:286

bail for pretrial release, the problems of docket delay, and similar matters
must be viewed with a realization that most of the citizens who will be in-
volved in criminal cases are poor and that procedures which may be adequate
when applied to the wealthy professional criminal may not be fair when applied
to the indigent first offender.
Recent events highlight the need. Upon the advice of the United States
Attorney for the District of Columbia, the Chief of Police has directed that
members of his force may interrogate arrested persons for a "total period of
actual questioning, exclusive of interruptions" not to exceed three hours,
provided that certain warnings are given and certain conditions are met. 2
An arrested person may call a lawyer and will be given the opportunity to
consult with him,88 but no provision is made to provide counsel for the in-
digent.84 The poor suspect must be content with a warning to the effect, "if
you cannot obtain a lawyer, one may be appointed for you when you first go
to court."8 5 This action was taken in the face of decisions of the District of
Columbia Court of Appeals extending the Mallory rule at least as far as any
other circuit.8 6 It was done presumably to aid the police in investigation of cases
such as "homicide, yoke robberies, rapes and certain other crimes" where
there is no "third eye witness" or where it is "often difficult for complaining
witness to make an identification."8 7 But in Washington where the poverty of
the Negro is notorious, 90.6 per cent of the defendants convicted of homicide,
88.3 per cent of the robbery defendants and 86.3 per cent of the defendants
convicted of sex offenses during the last year were Negroes. 8 Approximately
four out of five of the defendants arrested" or convicted 0 of felonies were
Negroes. Over 52 per cent of the indicted defendants are too poor to make
bond ;91 61 per cent of those defendants involved in felony cases required the
92
assistance of appointed counsel.
The American Law Institute is considering proposals which would au-
thorize practices similar to those of the District of Columbia; the Senate has
82. Letter of David C. Acheson, U.S. Attorney, to John B. Layton, Chief of Police,
Metropolitan Police Department, Washington, D.C., July 14, 1965, reprinted in Hearings
on H.R. 5688 and S. 1526 Before the Senate Committee on the District of Columbia,
89th Cong., 1st Sess. 497-98 (1965). General Order No. 9-B, series 1964, Metropolitan
Police Department, Washington, D.C., August 11, 1965, reprinted id. at 499-500.
83. Ibid.
84. Ibid.
85. Id. at 499.
86. See, e.g., Alston v. United States, 348 F.2d 72 (D.C. Cir. 1965) ; Spriggs v. United
States, 335 F.2d 283 (D.C. Cir. 1964) ; Jones v. United States, 307 F2d 397 (D.C. Cir.
1962).
87. Hearings on S. 486 Before the Senate Committee on the District of Colunbia,
88th Cong., 1st Sess. 432 (1963) (Statement of Deputy Attorney General Nicholas deB.
Katzenbach).
88. FEDERAL OFFENDERS REPORT 70.
89. REPORT AND RECOMMENDATIONS OF THE COMMISSIONERS' COMMITTEE ON POLICE
ARRESTS FOR INVESTIGATION 13 (1962).
90. FEDERAL OFFENDERS REPORT 68.
91. See note 55 supra.
92. See note 19 supra.
 LEGAL NEEDS OF THE POOR
93
even passed a bill which specifically authorizes such procedures. Reasonable
persons may differ as to the desirability or necessity of such unequal treatment
for the poor. The Attorney General has expressed the opinion that the fact
that police questioning will primarily affect the poor Negro is "particularly
irrelevant.1 94 In his opinion, steps taken in recent years to make the criminal
process fairer to the poor, such as providing counsel, have been "for our sake,
not for theirs." 95 Many students of the criminal process and of the Constitu-
tion would differ with him in these views. Their concepts of human dignity,
equality before the law and basic fairness require them to subscribe to dif-
ferent notions concerning the object, the meaning and the importance of the
right to counsel, the privilege against self-incrimination, and the presumption
of innocence. However, regardless of the merits of the controversy, what can-
not be denied is that the adequate representation of the poor requires that
spokesmen for their interests should be heard. These spokesmen may have
different views concerning the impact of such proposals upon the detection
and prosecution of crime' and community relations. They may be able to sug-
gest alternative solutions to the problem of improving law enforcement.
Legislative and administrative reform in criminal procedure has tradi-
tionally been the domain of the prosecutor, the judge, the police and the
professor with a few outstanding private practitioners at the defense bar
participating. The time has come for organized defender systems to provide
experts who will bring different experiences and attitudes to bear on the
common problems.

CONCLUSION

There must be one criminal process applicable to both the rich and the
poor. If the law is to protect the poor adequately, it will inevitably contain
93. S. 1526, 89th Cong., 1st Sess. (1965).
94. Letter of Nicholas deB. Katzenbach to Chief Judge David L. Bazelon, June 24,
1965:
Your suggestion that police questioning will primarily affect the poor and in
particular, the poor Negro, strikes me as particularly irrelevant. The simple
fact is that poverty is often a breeding ground for criminal conduct and that
inevitably any code of procedure is likely to affect more poor people than rich
people. For reasons beyond their control, in Washington many poor people are
Negroes; in Texas, Mexicans; in New York City, Puerto Ricans. A system
designed to subject criminal offenders to sanctions is not aimed against Negroes,
Mexicans, or Puerto Ricans in those jurisdictions simply because it may affect
them more than other members of the community.
95. Letter of Nicholas deB. Katzenbach to Chief Judge David L. Bazelon, June 24,
1965:
In recent years we have taken steps to make the process fairer to the poor-
by providing counsel, by revising bail procedures, etc. But in none of these
efforts has equality been our overriding objective-nor should it be. We pro-
vide counsel in order to insure that the innocent are not wrongly convicted,
that they may raise defenses which help preserve the integrity of the judicial
process. We do it for our sake, not for theirs. And we are providing bail pro-
cedures because we believe that in many instances financial condition is irrelevant
to the purposes sought to be promoted by bail. Again it is not a welfare pro-
gram, but one designed to better effectuate the purposes of bail.
304 COLUMBIA LAW REVIEW

avenues through which a few guilty defendants will escape justice. But to
provide foolproof safeguards to ensure the punishment of all the guilty, society
would have to take the risk of acting unfairly to numerous indigents. Is there
really a choice?