“If You Cannot Afford a Lawyer, One Will Be Appointed for You”

James Kwak
Published in
4 min readOct 3, 2022

Photo by Karsten Winegeart on Unsplash

Or maybe not.

Most Americans probably get their ideas about the criminal legal system from what we used to call television — from shows like Law and Order and its progeny, where determined, hard-drinking, salt-of-the-earth detectives arrest suspects while reading them their Miranda rights — including the right to a lawyer. (Note: The more common approach is to bring people in for “voluntary” interviews, talk them into confessing — while avoiding anything that would make the situation a “custodial interrogation” under Miranda — and only then read them their rights.)

The Sixth Amendment says that a person accused in a criminal trial “shall enjoy the right . . . to have the Assistance of Counsel for his defence.” For a long time, this only meant that, if you could hire a lawyer, the government could not prevent you from having that lawyer help you. Then, for a few decades, it meant that the government had to provide lawyers to poor people, but only in federal courts. In the famous 1963 case Gideon v. Wainwright, the Supreme Court finally held that people facing felony charges in state courts also had the right to a lawyer. (Note: With a lawyer, Gideon was acquitted.) Nine years later, in Argersinger v. Hamlin, the Court ruled that people facing any loss of liberty had the right to a lawyer.

In Georgia right now, hundreds of people charged with crimes do not have lawyers. (Thanks to the indefatigable Bill Rankin for writing the story, and to the Southern Center for Human Rights for raising the issue.) Many have been in jail for months waiting for a lawyer to be appointed. Obviously, it is much harder to get out of jail without a lawyer than it is with one. It’s also harder to evaluate a plea bargain offered by the prosecutor.

Why this fundamental breakdown in the basic functioning of the legal system? The answer, as with so many other things, is money.

Free-market capitalism is no more likely to produce lawyers for people who can’t afford them than it is to provide health care for people who can’t afford it. For health care — which is not a constitutional right, although it should be — the government pays for Medicaid and Medicare, although many Republican governors (including Georgia’s) are doing their best to make…

James Kwak

Books: The Fear of Too Much Justice, Take Back Our Party, Economism, White House Burning, 13 Bankers. Former professor. Co-founder, Guidewire Software. Cellist.