LAW AND

POVERTY
CRIMINAL JUSTICE
SYSTEM AND THE
POOR
SUBMITTED TO:
DR. GULAM
YAZDHANI
ASSOCIAT
PROFESSOR
FACULTY OF
LAW,
JAMIA MILLIA
ISLAMIA.

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 ACKNOWLEDGEMENT

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, Faculty of Law, Jamia Millia 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

Introduction

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Criminal Justice 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. Only the criminal justice system has the
power to control crime and punish criminals.

The police harassment of homeless people, criminalization 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 stigmatized,
scapegoated, and mistreated by the criminal justice system. Those unable to
afford an attorney often find themselves represented by under resourced,
inadequate and irresponsible public defenders, and are unable to adequately
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. But
the fact is that nearly everyone commits crime but only the poor are generally
punished for it. All classes commit crime. However, 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.

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Most people who interact with the Criminal Justice System are poor. In 1991,
more than half of all state prisoners reported an annual income of less than
$10,000 prior to their arrest. While roughly 80% of all U.S. men of working age
are employed full-time, only 55% of state prison inmates were working full-
time at the time of their arrest. Only 33% of prisoners nationwide have
completed high school, while in the general population 85% of all men 20 to 29
years old have a high school diploma. The United States spend $167 billion
dollars on policing, corrections, judicial and legal services in 2001 and only
$29.7 Billion on Temporary Aid to Needy Families (TANF).

The poor are increasingly criminalized to protect the interest of the wealthy. The
homeless are denied access to public space. More 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, Georgia; Cincinnati, Ohio; and Portland, Oregon. The
homeless are denied access to private space. Local businesses often band to
form Business Improvement Districts, organizations created in order to
protect the interests of local businesses. The interests of these Business
Improvement Districts 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 categorized as

follows:

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# To prevent the occurrence of crime.

# To punish the transgressors and the criminals.

# To rehabilitate the transgressors and the criminals.

# To compensate the victims as far as possible.

# To maintain law and order in the society.

# To deter the offenders from committing any criminal act in the future.

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 General Points

Of late, the relevance of our criminal justice system- both substantive and
procedural- a replica of the British colonial jurisprudence, is being seriously
questioned. Perhaps 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 pressurize the government and the legislature to amend
the laws to protect the week and the poor. Even after five decades of
independence, no serious efforts have been made to redraft penal norms,
radicalize punitive processes, humanize prison houses and make anti-social and
anti-national 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 mystique of legal ethos. The hierarchy
of courts, with appeals after appeals, puts legal justice beyond the reach of the
poor. Making 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.

Of 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.

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Some 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 cant be ignored. They have revolutionized 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:

1. Public interest litigation.

2. Bail justice jurisprudence.

3. Prison justice.

4. Compensation to the victims.

5. Legal aid and legal services.

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 Bail Justice System

Bail is a generic term used to mean judicial release from custodia legis. The
right to bail- the right to be released from jail in a criminal case, after furnishing
sufficient security and bond- has been recognized in every civilized 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 inquiry, 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 required for
trial, is assured.

Objectively analysed the criminal jurisprudence adopted by India is a mere

reflection of the Victorian legacy left behind by the Britishers. The passage of
time has only seen a few amendments once in a while to satisfy pressure groups
and vote banks. Probably no thought has been given whether these legislations,
which have existed for almost seven decades, have taken into account the plight
and the socio-economic conditions of 70% 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. Bail 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 required.

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

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population in rural India, lives in the thrall of poverty and destitution, and dont
even have the money to earn one square meal a day. Yet, 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.

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 Discrimination in Arrest Rates

Numerous studies show that the middle class conducts just as much, if not
more, crime as the lower class. Even so, police choose to arrest the poorer
criminals at a higher rate. Most studies proving this bias have been on juvenile
delinquency, but keep in mind that teen-agers and early twenty-year olds form
the largest criminal age group.

One study interviewed 847 males and females between the ages of 13 and 16,
and found that 88 per cent of them admitted to committing at least one
delinquent offense. But 88 per cent of these youth do not have police records;
generally, only the poorest do.

A Philadelphia study of 3,475 juvenile delinquents found that police referred

lower class boys to juvenile court much more often than upper class boys, even
for equally serious offenses with similar prior arrest records. When it came to
upper class boys, the police were more inclined to treat the matter informally
with their parents.

Discrimnation in Convictions

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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.

On the other hand, the poor are often represented by a harried public defender
or assigned attorney. One 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 plea-bargaining strategies. (11) Not
surprisingly, public defenders win dismissals or acquittals in 17 per cent of their
cases, compared to 18 per cent for assigned attorneys, and 36 per cent for
privately hired counsel.

This situation becomes even worse in death penalty cases. Because 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.

Bias in Sentencing

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There are two ways that sentencing is biased against the poor. First, the rich
either write or lobby for the very laws that purport to oversee their behaviour.
Harsh sentences for the poor are softened whenever legislators write them for
the rich, even though their crimes may be many times greater. Second, judges
have shown themselves reluctant to make common criminals out of the
community's best and finest. Both of these biases have created wide disparities
in sentencing. For example, millionaire Jack Clark received no fine and only
one year in jail for cheating stockholders out of $200 million. Yet in the same
courthouse, a minimum wage worker who had stolen $5,000 received four years
in prison -- that is, 160,000 times the punishment. (13)

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 27 per
cent of the time, compared to 16 per cent for the upper classes. The poor were
also not given suspended sentences 23 per cent of the time, compared to 15 per
cent for the upper classes.

The Rich have Crucial Advantages in the Court System.

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People that can afford bail are able to leave jail and conduct investigations,
leaving them better prepared for trial. Higher-income people can afford better
attorneys, expert witnesses, private detectives, and more respectable alibis.
People who can afford to hire an attorney are less likely to be imprisoned. Of
the cases in which the defendant was found guilty in federal courts, 88% of
defendants with a public attorney received prison sentences, compared to 77%
of defendants with private lawyers, between 1990 and 1998. 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. Between 1990 and 1998, in the 75 largest counties

in the U.S., roughly 50% of felony defendants with a public lawyer or court
assigned counsel were released from jail pending trail while approximately 75%
of private lawyers were released. The poor face harsher sentences simply
because they cannot afford adequate legal assistance. The United States allots
just $2.25 per person for civil legal assistance. England allocates $32, New
Zealand $12, and Ontario $11.40.

Public defenders are overworked. Felony caseloads of 500, 600, 800 or more
annually are common for many public defenders, although it is recommended
that the annual caseload for a public defender should not exceed 150 felonies,
400 misdemeanours or 200 juvenile cases. For example, public defenders in
Philadelphia were handling between 600 and 1,100 cases per year. Because
public defenders are overworked, it is not surprising that they win dismissals or
acquittals less often than privately hired attorneys.

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Some defendants who cannot afford to hire an attorney themselves are never
assigned a public defender. In 2002 there were more than 12,000 guilty pleas
entered by people who were not represented by an attorney just in California
alone. Counties in Georgia have faced lawsuits after completely failing to
provide counsel to misdemeanour defendants, or delaying so long to appoint
counsel that the pre-trial wait in jail was longer than the sentence would have
been if a conviction had occurred. Elsewhere, suspects are coerced into waiving
their constitutional right to counsel in return for a deal, available only if they
plead guilty immediately. Very few jurisdictions comply with the U.S. Supreme
Courts decision to extend the right to counsel to people receiving probation or a
suspended sentence.

Many death row prisoners have been represented by incompetent and incapable
lawyers or in some cases no lawyers at all. In Texas, about 1 in 4 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 1 in 5 prisoners that have faced execution in the past
20 years in Washington State. In Alabama, about 40 of the 185 death row
prisoners do not have attorneys. A study by the Innocence Project of Cardozo
Law School indicated that in 70 exonerated death row sentences, 32% of these
cases occurred because of incompetent lawyers.

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 Conclusion

A perusal of the above cases highlights the strong anti-poor bias of the Indian
criminal justice system. Even 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 socio-economic
condition of the majority of our population. While granting bail the court must
also look at the socio-economic
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:

(1) The nature of the offence committed by the accused.

(2) The length of his residence in the community.

(3) His employment status history and his financial condition.

(4) His family ties and relationships.

(5) His reputation character and monetary conditions.

(6) His prior criminal records, including any record or prior release on

recognizance or on bail.

(7) Identity of responsible members of the community who would vouch for his

reliability.

(8) The nature of the offence charged and the apparent probability of conviction

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and the likely sentence in so far as these factors are relevant to the risk of non-

appearance.

(9) 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 /
block. The utilization of this fund would be in the hands of the elected leaders
of the society with the representative of district collector / 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. Such a
scenario will have the effect of reducing the burden of over-crowding 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. Such 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. Elementary 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.

Public officials portray prisons as clean industries and promise new jobs to
poor communities. However, prisons are often cited the same way other
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polluting industries are focusing on poor communities of colour. Prisons use
large amounts of local natural resources, and towns where prisons are located
are required to pay for the roads, sewers and utilities used by the prisons. Prison
construction often takes land out of productive use.

Prison jobs typically do not go to residents of the host towns, and employees of
the prisons rarely move into town after being hired. Since, the majority of
prison employees commute to work, the host towns local businesses see little,
if any, business from the prison employees.

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 Bibliography

V.R. KRISHNA IYER-Social Justice-Sunset or Dawn, Second

Edition, Eastern

J.S. GANDHI-Law and social Change

A.W.Murphy,- Law and Poverty

UPENDRA BAXI- Law and poverty

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