Vol. 14 No. 4 (April 2004)

JUSTICE FOR THE POOR: A STUDY OF CRIMINAL DEFENSE WORK, by Debra S. Emmelman. Aldershot, England: Ashgate Publishing Limited, 2003. 153 pp. Cloth $79.95. £45.00. ISBN: 0-7546-2309-2.

Reviewed by Kathleen Hale, Department of Political Science, Kent State University. Email: khale@kent.edu.

In JUSTICE FOR THE POOR: A STUDY OF CRIMINAL DEFENSE WORK, Debra Emmelman examines the behavior of court-appointed criminal defense attorneys in routine cases to determine how role prerequisite behaviors and social class influence criminal case outcomes. Employing the standpoint of the law in everyday life, Emmelman interrogates both the place of law and the place of social class in the routine defense of indigents charged with committing crime. She analyzes cultural rhetoric and grammar obtained from her extensive personal observations as a student intern and law clerk in a large West-coast nonprofit criminal defense organization; her subject participants are known in the text as the defenders. Her findings argue for a broader study of social class in ways that can enhance our understanding of the law and its exclusionary impact on the poor.

Chapter 1 establishes the use of grounded theory methods to conduct a narrative examination of everyday life. This choice of method and its use of narrative are critical to exposing the constructed notion of normalcy that permeates our understanding of the legal system, something that Emmelman terms “commonsense.” Chapter 2 identifies role prerequisite behaviors for the actors in the criminal justice system - criminal defense attorneys, prosecutors, judges, juries, witnesses and indigent defendants - and the cultural context of the criminal justice system within which they exist. Chapters 3, 4 and 5 examine the narratives of defenders at various stages in the process, including case assessment, plea bargaining and trial.

Emmelman finds that the defenders ably discharge their role prerequisite behavior of client advocacy and provide zealous client defense; from this perspective, client indigence does not impact negatively on case outcomes. In fact, an able defense is actually facilitated by the conflict context of the legal system, and client indigence may serve as a positive motivator in the ethical representation of the client (p.36). However, the central argument of the book is that the inequities associated with social class should be understood in the larger context of commonsense classism, and that unequal class-based treatment derives from commonsense reasoning (p.37).

Through defender narratives, Emmelman illustrates the manner in which actors engage in commonsense reasonings throughout the various stages of the process, such as case intake, case assessment, trial decision and strategy sessions. Commonsense reasoning, thus, is part and parcel of the role prerequisite behavior of each actor, constructing their understanding of the system and also prescribing their roles within it. The narrative of defenders exposes this commonsense discourse as limiting poor clients regardless of guilt or innocence (p.68).

Scholars and practitioners will find the postmodern approach both enlightening and provocative. Defender narratives and transcript excerpts reveal the law as a social and linguistic construction, a discourse constituted by structure and rules that facilitate particular discursive practices within the law as place. These narratives illustrate the manner in which the dominant discourse dichotomizes language, experience and interpretation around the concept of commonsense; that which is outside commonsense is the language of the poor. Commonsense is hierarchically privileged over the language of the poor; this binary opposition produces clear power relationships within the legal system and also produces our knowledge of the law itself. Emmelman argues that there is no truth separated from this power relationship and therefore no true way in which the poor can be understood by or within the system.

The defender narratives demonstrate that the commonsense discourse is limiting to defenders, judges, and juries as well as to poor defendants. Both at trial and in plea bargaining, defenders are unable to limit the impact of client social class, as it is understood in terms of common sensibilities. Prosecutors attempt to portray clients’ actions and choices as outside the realm of common experience; indeed, judges and juries favor that which falls within their common experiences. Defenders attempt to describe client actions and choices within the framework of the commonsense, in an effort to normalize their behaviors so that they can be understood by jurors and judges (p.87). This framework, however, has limited utility for clients whose actions and choices fall outside the boundaries. Therefore, Emmelman concludes, poor clients are more likely to be convicted regardless of guilt (pp.94, 116).

Moreover, although the poor may experience procedural justice through the zealous efforts of defenders, substantive justice is denied by the influence of commonsense classism on the interpretive decisions of the actors with the power to judge client behaviors. Certain utterances by clients are simply either impermissible or unintelligible within the rules that regulate content and ways of understanding. Within the legal system, these clients and their behavioral choices, deriving from a context of poverty and deprivation, cannot be fully understood.

Clear strengths of this work are its elegant simplicity in presentation of the narrative and its careful demonstration of the distinctiveness of language based upon social class. Defenders reveal that they expect their clients to present images clarifying a lack of moral risk to judges and juries, because this lack of moral risk is more useful information than the specific facts associated with the alleged crime. Compelling examples of everyday life - family relationships, living arrangements, property ownership or lack thereof, ways of passing time during the day or night - all illustrate the dichotomy created by the otherness of the poor and Emmelman’s commonsense of everyday life. One defender notes simply that certain standards of behavior are not well accepted by mainstream jurors, and that it is a great advantage to be able to present a client who demonstrates a lifestyle with at least some of the indicators which jurors find in their own commonsense experiences. However, a truly indigent defendant simply does not experience a world that provides those indicators of job, family, housing, or life choices and thus there is little than can be presented on behalf of that client demonstrating attempts to overcome the impact of social class (p. 64).

Emmelman does not stop at identifying the commonsense/poor dichotomy or at exposing the paradox that it creates. Instead, the social class of the poor, or social classism, is presented as a point of departure for the development of alternatives within the system. Defender narratives can be utilized to question the manner in which clients and client legal problems are defined and constructed, and the manner in which both are understood within a commonsense language. Greater appreciation and sensitivity to client social class and the power and knowledge relationships associated with it can lead to alternative ways of understanding that will arguably benefit poor clients. Development of alternatives is a particularly vital aspect of this study, because the alternatives, which build upon commonsense understandings embedded in the legal system, are more likely to be heard.

As a study that explores the value of broadening the capabilities of understanding by those who make decisions in the criminal justice system, Emmelman’s work also succeeds in raising important questions. What is the impact on case outcomes if client social class is introduced in voir dire? What are the various actor perspectives through which social class can be measured, and what difference does that perspective bring to bear on case outcomes? Does the nonprofit, corporate character of the defender enterprise provide some form of institutional safeguard for clients, whether in the form of efficiencies over public bureaucracies, the lack of profit motive, or a heightened commitment to social justice on the part of defenders? Readers would benefit from a greater understanding of the foundations underlying these, as well as several other questions that Emmelman poses in her conclusions. However, the strength of the narrative examples and the essential premise of the book suggest that, within our present understanding of the law, these questions are most useful as platforms for further research.

Ultimately, JUSTICE FOR THE POOR reminds us of the power of ideas. In constructing a legal system upon one set of ideas, we have excluded alternative perspectives. That which is accepted as a commonsense understanding is inherently the product of life experience, and decisions are too often colored by an inability to see across the social class divides. Undergraduate and graduate instructors in constitutional law, legal theory, public law or public policy should consider this text as a course reading that will provoke lively discussion.

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Copyright 2004 by the author, Kathleen Hale