Debate: In the Criminal Justice System, Wealth Is A Huge Advantage

Ed. note: Anatole France wrote “The law, in its majestic equality, forbids rich and poor alike to sleep under bridges, to beg in the streets, and to steal their bread.” But when it comes to federal prosecutions, is wealth always an advantage or can it also be a detriment? 

The following post, by my former Fault Lines colleague, Atlanta’s Andrew Fleischman, is the first in a series of posts debating with Miami’s David Oscar Markus the issue, “Is Rich Law better than Poor Law?”

David Oscar Markus recently wrote an editorial on behalf of his clients, the family of Ghislaine Maxwell, in which he said that “the rich do not enjoy enormous advantages in a federal criminal case.”1 If anything, they are greatly disadvantaged.” I’d love to live in a world where this was true. But justice ain’t cheap, and the tools a criminal defendant needs to rebut the presumption of guilt our system heaps upon them often require significant investment.

First off, there’s choosing the correct lawyer. Justice Roberts was not exaggerating when he wrote that a defendant’s inability to pay for their counsel of choice “raises substantial concerns about the fairness of the entire proceeding.”

Few things could do more to ‘undermine the criminal justice system’s integrity,’ than to allow the Government to initiate a prosecution and then, at its option, disarm its presumptively innocent opponent by depriving him of his counsel of choice—without even an opportunity to be heard.

But the grim reality for Kaley, a woman whose money for her lawyer was forfeited by the State, is a fact of life for the vast majority of criminal defendants who have no say in who will represent them. It can mean an experienced advocate who knows all the local players or a real estate attorney on a side hustle. It’s the difference between a lottery ticket and a paycheck.

Second, there are all the pre-investigatory steps that a good lawyer might take. That can mean talking to detectives and investigators ahead of trial, or, as in the former President’s case, offering substantial “campaign contributions” to elected prosecutors shortly before charges are dropped. Again, a powerful tool for the wealthy made totally unavailable to the poor. ‘

And the list goes on and on. Wealth can buy a cavalcade of experts to counter the State’s usual retinue. It can mean forensic tests, flying witnesses in from other states, and having the means to pursue your case outside of court—with publicists and hired spokespeople. They can comply with conditions of pretrial release without worrying about missing work. In the vast majority of places that require cash bonds, a wealthy person can pay their way out of jail without the usual begging of family members and friends to scrape up the money.

Mr. Markus focuses on some counterexamples, like Maxwell and Lori Loughlin, that received major press coverage and unfair treatment by the system. But unfair treatment by the system is virtually a given. We learn a lot more about the cases of the wealthy and fabulous being charged and treated harshly because those are man-bites-dog stories—the vast majority of people in our jails and prisons were making much less than the median wage before they got locked up.

As Markus admits in a different piece, Maxwell wasn’t targeted for prosecution and locked up because she’s a wealthy person, but rather because she hung out with the most famous sex offender on the planet. Others accused of more serious sexual crimes, but not saddled by the Epstein effect, have traditionally been released on bond. Not only has Maxwell been denied bond, she essentially has been placed in solitary confinement.”

And while her wealth was a factor in the denial of bond, so too was the strength of the evidence in the judge’s view , some arguments that Maxwell had lied to pre-trial services, and the fact that Maxwell could go to France immediately and the government could not be sure they’d agree to extradite her back, even with her waiver agreement in hand. It doesn’t seem likely that a poorer person would have done any better.

One interesting point that Markus makes is that wealthy people face discrimination from jurors. Do jurors feel a natural resentment and dislike for wealthy defendants during deliberations? Maybe. But they tend to feel the same way about gang members, drug addicts, people accused of sex crimes and on and on and on. Any lawyer who has tried to find the funds to cover up a client’s neck tattoos with a makeup artist knows the struggle of making them relatable to a middle-class jury. For the most part, jurors seem to hate almost all criminal defendants on some level, so it’s hard to say that the wealthy get the raw end of the deal—especially since they can always hire jury consultants to help them deal with the problem.

Ultimately, the federal government is a bit like a grizzly bear. When it comes for you, your survival is often more reliant on the bear’s restraint and mercy than the things you do to oppose it. But with the proper tools—a pistol, maybe, or a big frying pan, you can hope to scare the bear off to chase an easier meal, or land a lucky shot that puts it off its lunch. We can acknowledge how much it sucks to be chased by that bear without pretending that the tools don’t matter.

1 I sent a regrettable knee-jerk tweet before reading who wrote the article, and before reading the whole thing, which is typical of how dumb I can be on twitter.

18 thoughts on “Debate: In the Criminal Justice System, Wealth Is A Huge Advantage

  1. Mike lighton

    I will be interested to see the so-called disadvantages the poor rich people have to deal with. The ones that can’t be easily overcome by the money and power they have at their disposal.

    1. SHG Post author

      Lest there be any more comments like this that contribute absolutely nothing to the discussion, don’t do it. If you have nothing to say, don’t say it.

      1. David

        You’re so old, you don’t get it. To the passionate, this insipid nonsense is a substantive argument. Don’t be hard on them because they are incapable of mustering an actual thought, boomer.

        1. SHG Post author

          Hey, I’m aware. I just think Andrew’s effort is strong and substantive enough to deserve better.

  2. shg

    A strong start, but it raises a question: Are we talking about the same thing? The nature of crimes for which the rich and poor are arrested and prosecuted tends to be very different. There aren’t many wealthy folks arrested for stealing bread, but there aren’t many poor folks arrested for stealing millions from the till or making billions by pushing opiods on docs.

    It’s become very fashionable to pound on the problems of poor people making needless bail or being the target over over-policing of minor offenses in their communities, but is it a fair comparison to the weight of the government on the wealthy when they get caught in the government’s cross hairs?

    If a poor person’s problem is that they can’t make $500 bail, how does it compare to a rich person’s problem that they can make $5 million, but still can’t get bond because they’re just too darn wealthy?

    1. B. McLeod

      Well, where the crimes are similar, publicity linked to the defendant’s wealth can certainly be an adverse factor. Maxwell is essentially charged with trafficking young women and girls. How many, among our nation’s thousands of pimps, are being treated as she is? If the feds arrested them all and held them without bail, Biden would have to cancel the cancelation of the private prison contracts.

    2. Andrew Santos Fleischman

      Well, it’s not just Maxwell’s wealth that makes it hard for her to get bond, but her many foreign connections. There is a real possibility she could pull a Roman Pulanski in France, no matter her promises here, and escape extradition forever.

      I think you could fairly say that Maxwell is being treated as poorly as we’d treat a suicidal indigent criminal defendant. Which is terrible. But that defendant would be lucky to have a lawyer who’d pick up the phone when he called, and she’s got access to a team of top-flight attorneys who will keep proposing different bail solutions, and filing appeals, to get her some relief.

      1. SHG Post author

        While your comparison to a suicidal indigent deft leaves some odd questions, you’re making David’s case. She’s pissed away a ton of money on fancy lawyers to no avail, when (as B.Cleod noted) had she been a run-of-the-mill pimp, she’d be out for dinner tonight with a federal defender representing him.

        I was wondering whether anyone would bring up the drug dealer problem as the middle ground between the poor minority deft and the rich minority deft, more of an apples to apples comparison that’s largely ignored by the arg that all black and brown defts are poor and marginalized. Sadly, no one raised it.

  3. Miles

    One of the most dangerous and troubling shifts in the narrative is that the battle lines used to be prosecution v. defense, government v. defendant. Now it’s public defender v. retained defense lawyer, black defendant v. white defendant, and as here, poor defendant v. rich defendant. This smacks more of woke purity than legitimate difference, that one defendant is more entitled than another because of his oppression.

    Why? What drives this compulsion to negate the problems one defendant at the expense of another? Is it fear that unless you condemn the wealthy, there won’t be enough “empathy” for the poor? Or is it that there is an innate need to hate, blame and diminish others, and the wealthy are still fair game under the woke narrative, so let’s dump all our outrage and hatred on them to make ourselves feel so very virtuous?

  4. Ray Lee

    When asked broad questions with respect to a specific matter, the most accurate legal answer is generally “It depends.” Rare is the demographic factor that is always good or always bad. That said, your Dad was right. Rich or poor, it’s better to have money.

    1. SHG Post author

      Policy arguments aren’t dependent on specific matters, so “it depends” doesn’t resolve the question here. As for my grandpappy’s (not my dad, who favored “the masses are asses”) saying, if you’re going down on level 34 because you’re rich rather than being the poor schmuck getting minimal and a 5k1.1, the money may mean more to your kids than you.

  5. Vincent Morrone

    This is an observation and belief from a non-lawyer.

    There are clear advantages to wealth when it comes to criminal justice matters. We talk in terms of lawyers, which a poor person gets what they get (And many public defenders are truly awesome at their jobs) while a wealthy person can pick and choose, or choose not to by hiring a team of lawyers.

    There’s also a perception issue. It’s often easier to paint a poor, minority person as someone destined to always be in trouble with the law.

    But also, do the rich face the same judges or even prosecutors as the wealthy?

    A prosecutor facing a defendant with money will anticipate that army of lawyers, whereas a prosecutor facing a poorer person might take liberties with the law that the army of lawyers won’t.

    A judge seeing one defendant after another in one-sided cases might become more jaded about that whole ‘innocent until proven guilty’ thing.

    Of course, there’s a flip side. A rich person is more likely to have their case make headlines for the simple fact that they’re famous. And you may face that poor little rich boy/girl when you need jury sympathy.

    I guess the lesson is that of course there are advantages to having money, but there can be some disadvantages as well.

    1. SHG Post author

      Bear in mind that this debate arose from David’s op-ed, which asserted:

      Contrary to the premise of the article, the rich do not enjoy enormous advantages in a federal criminal case. If anything, they are greatly disadvantaged.

      As much as arguing that the poor are invariably disadvantaged by their lack of money might by an overstatement, the same can be said for the rich being “greatly disadvantaged.” Perhaps both assertions are hyperbolic as stand alone statements and, as Ray said, the only real answer is “it depends.”

      1. Vincent Morrone

        “It depends” is probably accurate.

        There are some advantages for the rich, others for the poor.

        The same can be said of disadvantages.

        Not all of those apply in all cases. And each case is very different.

        There is no one, simplistic answer.

  6. Terry

    Non-lawyer confusion here: Is the “waiver agreement” mentioned something that would (attempted to) be enforced if Maxwell managed to get to France somehow? Is the issue then that if France was not inclined to respect a US government extradition request for some “important” reason, why would they consider relevant a “hey, but she agreed with us she would come back!” type argument?

    Presumably making to very difficult for her to leave the country can be done by confiscating passports, putting on watch lists etc – but getting around all that is perhaps something the rich have more a shot at doing.

    1. SHG Post author

      This would likely be a better question to ask of David than Andrew, but yes, the argument was that even a waiver of extradition wasn’t enough to secure a wealthy person, who could afford to disappear into the mist of a foreign nation. It was her wealth that made her capable of overcoming most normal obstacles and therefore unable to be secured by any means if released. No matter what rights she waived, it wasn’t good enough because of her wealth.

  7. B. McLeod

    The Maxwell case is an aberration. The issue there is not the defendant’s wealth, but the crimes charged. This, in conjunction with wokey prosecutors who have decided to skip directly to the punishment phase, and a judge who has apparently decided to let that all by.

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