Counsel for the Indigent: An Unfunded Mandate

The Sixth Amendment guarantees that, “[i]n all criminal prosecutions, the accused shall enjoy the right… to have the assistance of counsel for his defense.”  Over the course of constitutional time, deprivation of counsel to the indigent has been a non-issue, has amounted to both a 6th and 14th Amendment violation, and appears to be heading back to obscurity due not to a new interpretation of the Constitution or less of a need for the indigent, but due, instead, to a lack of necessary funding and a laissez faire attitude of the current Court.

In the 1930's Alabama state law required the appointment of counsel for murder and rape.  The state court failed timely to appoint counsel in Powell v. Alabama, 287 U.S. 45 (1932).  The Court decided that by violating its own state law, Alabama thus violated due process of law under the 14th Amendment and required the appointment of counsel in a retrial (which never occurred).  In Smith v. O'Grady, 312 U.S. 329 (1941) an uneducated man, without counsel, was not informed of the charges against him but yet coerced into pleading guilty on the promise of a three year sentence.  Shocked when he received a twenty year term, he spent eight of those years seeking relief which finally came when the Court deemed Nebraska to have essentially violated its own law and thereby the due process clause of the 14th Amendment when it failed to appoint counsel.  The Hughes Court certainly seemed to head toward a general rule that states must make reasonable efforts to appoint (and thereby pay) counsel for the indigent.

Yet, in Avery v. Alabama, 308 U.S. 444 (1940), the Court seemed to care less for formalities such as preparation.  That is, at arraignment on Monday, March 21, 1938, two lawyers were appointed, as was the custom in Alabama for death penalty cases.  Trial was set for Wednesday but was not reached until Thursday when counsel moved to continue the matter (one had been on trial since appointment and the other had pressing matters in court until the night before trial), a motion which was denied.  But Alabama took the speedy trial right more seriously than the right to counsel; a jury found the defendant guilty and sentenced the defendant to death on March 24, 1938.

Alabama courts found that counsel represented the defendant well and even brought his claim up to the high court for review (the claim being the denial of a continuance to allow counsel to prepare for trial) thus the defendant was not denied the right to counsel under any view of the information.  The Court agreed, noting that in these rural counties everyone knows each other so nothing better would have resulted for the defense.  The Court found that because the trial judge carefully safeguarded Mr. Avery's rights, the fact that his attorneys were unprepared did not deprive him of the right to counsel.  It's a headscratcher.

A very itchy one.  In Betts v. Brady, 316 U.S. 455 (1942), the Court affirmatively declared that the 14th Amendment due process clause did not incorporate the 6th Amendment.  Thus, the state of Maryland did not offend the United States Constitution when it denied counsel to Mr. Betts in his felony case. In that case, the Court warned that denial of due process is pretty amorphous and really depended on a case by case evaluation (kind of like the current Court declared for warrants to extract blood).

So, despite the necessity of the eloquent "guiding hand of counsel" Justice Sutherland announced in Powell, in Betts v. Brady, the Court decided that the right to counsel was not a fundamental right, but rather one that had been relegated to legislative whim.  And, because the defendant was of ordinary intelligence and called witnesses in his behalf, he had a fair trial.  Indeed, if he had not - if there had been evidence that he was at a disadvantage for lack of counsel, a refusal to appoint would have resulted in the reversal of a judgment of conviction.  But, since the trial judge who heard the case determined that that did not occur, no biggie.  It is so much of a contradiction to Powell and Smith that three of the justices on the Court violently dissented.

They declared, "[w]hether a man is innocent cannot be determined from a trial in which, as here, denial of counsel has made it impossible to conclude, with any satisfactory degree of certainty, that the defendant's case was adequately presented."  Betts v. Brady, 316 U.S. at 476 (Black, J. dissenting).  The three dissenters - Justices Black, Douglas and Murphy, agreed with the incorporation doctrine and lamented that if the defendant had been charged with an identical federal offense, he would have been provided counsel.  Indeed, they said, no self respecting judge should conduct such a trial as it shocks the conscience; representation by counsel for all criminal litigants is a fundamental right.  But that dissent would percolate for 21 years.

In Gideon v. Wainwright, 372 U.S. 335 (1963), the Court accepted a handwritten pro se certiorari request.  It then appointed counsel and asked for briefing on whether it should reconsider its holding in Betts v. Brady.  Giving itself both the question and the lawyer from whom it wished to hear the answer was a bit of a hand tip.  So, the Court finally did accept both the incorporation doctrine and the idea of lawyers as fundamental requirements in criminal cases. Unless, of course, there is a valid waiver of the right to counsel in which case the defendant can self-represent. See: Faretta v. California, 422 U.S. 806 (1975)(but read Chief Justice Burger's dissent in which he cautioned that criminal defendants who waive counsel become easy convictions which undermines the public's confidence in the court system).

Fifty years later, it seems, we have come full circle not on the actual Constitutional principle, but on its implementation.  Demonstrating the preposterous nature of the Faretta decision, in Marshall v. Rodgers, 133 S.Ct. 1446 (2013), the defendant asked for counsel and then waived that right several times.  After conviction, he again requested counsel.  The Ninth Circuit ruled that there was a required presumption in favor of counsel in a post-trial, preappeal new trial motion (assumed, arguendo, as a critical stage of the proceedings).

The Court took the case to reverse the Ninth Circuit's ruling.  More precisely, the case reads like a 9 year old caught in a conundrum who declares, "I never said that!"  Apparently, the Ninth Circuit would put words into the Court's mouth that the Court is unwilling to declare one way or the other.  What the Court really said (in refusing to say anything) was that California did not make a mistake in saying that there was no clearly established precedent to suggest that there was a presumption for appointing counsel in critical stages of the proceedings where a person so requested and was unable to pay, especially when that person had decided to forego counsel once or twice which kind of ended badly and so maybe the request for counsel again was kind of legitimate...but the point is that there is no clearly established precedent so indicating - despite Gideon v. Wainwright which kind of really does say that... 

BUT (and this is the really important part) the Court also declined even to hint which way it might go if the question were actually presented.  "The Court expresses no view on the merits of the underlying Sixth Amendment principle the respondent urges. And it does not suggest or imply that the underlying issue, if presented on direct review, would be insubstantial." Marshall v. Rodgers, 133 S.Ct. at 1451.  So, by not telling and keeping that suspense high, courts can keep denying counsel to indigent defendants until one of them (possibly) can obtain appointed counsel in order to ask the question the right way.  In this version of "Mother, May I", instead of getting sent to the starting point for forgetting to say the magic words, the defendant gets to spend countless years behind bars as a guest of the state unless and until he gets a lawyer...which, remember...if he has ever self-represented - he may not be entitled to have ...or even know he may have given up - to ask whether the Court should reconsider its decision in Faretta v. California.

States may not be able to deprive counsel outright, but they can bring us to the Avery v. Alabama situation where local custom can dictate outcome just as easily as full deprivation can.   Another recent case was accepted on a speedy trial right issue, but really it was a right to counsel case.  Despite accepting cert, the Court dismissed Boyer v. Louisiana, SCT Docket 11-9953 (April 29, 2013) after hearing argument.  In that case, the defendant was charged with capital murder and, by statute in Louisiana, received two lawyers: one highly experienced in death penalty matters and the other - highly credentialed, but less experienced, from a state run agency called the Louisiana Capital Assistance Center.  The state required both counsel but conveniently had sufficient funds to pay only the less expensive attorney.  This caused considerable delays in the trial.

Despite the fact that the real question was, in charging the defendant with a capital offense without the resources to so prosecute, did the state delay his trial such that it violated the Constitutional right to a speedy trial (or the better question: does a state violate the 6th and 14th Amendments when it proceeds with criminal charges without the resources to provide an adequate defense thereby both delaying trial and depriving a litigant of the right to counsel), the litigant asked only whether the delay in payment to the lead attorney should be attributed to the state for purposes of determining one of the factors of the speedy trial analysis from Barker v. Wingo, 407 U.S. 514 (1972).  Only Justices Kennedy and Roberts did not chime in on this one.  Three Justices - Alito, Scalia and Thomas - concurred in dismissing the cert petition because, (1) the guy was clearly guilty, (2) the defense kept asking for continuances and it is really unclear why, (3) the defendant made out like a bandit as the state ultimately dropped the death penalty and (4) did they say yet that the guy was clearly guilty?  

But, four Justices - Sotomayor, Breyer, Kagan and Ginsburg - said that the question was whether a delay caused by a State's failure to fund counsel for an indigent's defense should be weighed against the state for purposes of a speedy trial assessment.  Given the facts as presented, this quartet would have so determined (and again this is key) without declaring that the defendant had been deprived of a speedy trial under the Sixth Amendment - ONLY that the factor should be weighed against the state.  No one seemed concerned about the lack of funding for indigent defense and its implication for the poor charged with crimes.

The big, bold questions of Powell v. Alabama and Gideon v. Wainwright have faded into technicalities and nitpicky formulations of questions to the Court.  But, as Chief Justice Marshall declared, this is a constitution we are expounding.  And not just a constitution, but our Constitution - We, the People's Constitution - the one we ask people to fight and die for, the one we hold dear to protect our right to speak publicly and live privately...that Constitution.  The one that guarantees the right to counsel and due process of law.  The Court in Gideon asked counsel to address the question it wished to address because it sought equal treatment under the law.  Now the Court shies from questions and answers alike.

To expound is to set forth.  The current Court issues decisions that are not decisions - witless, cowardly refusals to affirm the rights, privileges and freedoms we have grown to expect and these ideals that establish the framework of our society.  They are an insulting exercise in futility kicking the proverbial can down the road worse than their legislative counterparts.

Democracy is expensive and worth every penny.  So, when the state chooses to charge people with crimes, it must provide adequate funding for the police to be well trained, for the prosecution to protect all of the people ever vigilant of the rights of the defendant, for defense counsel to act as that bulwark between a free people and a police state, and, if required, for corrections facilities to be humane and just.  When society begins to pick and choose which parts of the system can be funded and which will suffer, courts have the duty to step in on the side of the most vulnerable.  

The first Justice Marshall exhorted that the Constitution had weight and meaning beyond the intimate details of a case; it was for keeps and we had to be careful about setting forth its parameters.  Some years later, seeking to blanket the least fortunate in the protective covering of the Constitution, a different Justice Marshall explained  that, "[h]istory teaches that grave threats to liberty often come in times of urgency, when constitutional rights seem too extravagant to endure."  Constitutional rights cannot be beholden to state budgets any more than they can bigotry.  The cowardice of the Court reflects that indigent defense is unpopular and will, therefore, be sidelined without the courage of those determined, ever vigilant, to ensure the continuation of the rights guaranteed by both war and peace.  It is, afterall, a constitution we are expounding.

Collateral Damage - Unintended Consequences

Collateral consequences to criminal convictions range from the immediate loss of liberty to future complications not imagined at the time of trial.  These range from possible deportation  to enhanced sentences for later crimes and a considerable amount in between.  Public housing agencies have rules and regulations regarding prior convictions: in Lowell Housing Authority v.Melendez, the Supreme Judicial Court ruled that a violent offense which occurred within one mile from the defendant’s home in a public housing complex was close enough to endanger the other tenants of the housing complex to permit the termination of the defendant's lease.  If the property is owned by Housing and Urban Development, entire families may be evicted due to the criminal drug offenses of one member. 

Additionally, driver’s licenses may be suspended and professional licenses revoked.  People with criminal convictions may be barred from creating business contracts with the government; employers may use criminal records to exclude candidates.  Those convicted of crimes may be required to submit their DNA to a national database, many will lose or have limitations on their right to access firearms; some may face civil commitment after the completion of their criminal sentence and some may be required to register as a sex offender which will carry additional restrictions on habitation and employment.  The overall cost to society for crime, punishment and collateral consequences is utterly unknown.  And, new questions arise on a regular basis in regard to the consequences of crimes.  Many of these issues are complex with sympathies and emotional pull for the victim but law and practicality on the side of the offender.

For example, at least one man in Pennsylvania is being sued for the purpose of purchasing his victim’s home.  The allegation is that the victim’s family moved into their home in 2005 at which time the victim was 2.  Their 65 year old neighbor, the defendant, befriended them gaining their trust and the trust of their daughter until such time, when she was 8, when he molested her.  Convicted of the offense, he was ordered to serve less than 2 years of incarceration after which time he moved back into his family home…next door to the victim.  The victim’s family has sued for damages related to the assault but also for what appears to be specific performance of purchasing their home.

The victim’s family’s suit claims that their house is unsaleable due to its proximity to a registered sex offender who is a child molester; yet the family is under duress to move due to the young victim’s trauma of seeing her rapist on a regular basis (although it is unclear why the victim's family did not seek to sell the house before the offender returned home from prison.)  Counsel for the defendant has asked for the court to dismiss that portion of the law suit requiring home purchase as stating a claim for which no relief can be granted…essentially comparing his client to a toxic waste dump.  The defense attorney cited a case where a plaintiff could not collect damages due to inability to sell his home despite living next to a toxic waste dump.

In another case – here in Massachusetts (but it is not unique) – the victim of a rape was impregnated (and, despite rhetoric to the contrary, that fact does not invalidate the crime of rape) and chose to carry the pregnancy to term, keeping the child.  The criminal court judge sought to transfer a portion of the case to Family Court in order to enforce child support payments upon the putative father.  The putative father averred that if he was to be ordered to pay child support payments then he would like to establish a relationship with the child and gain parental rights.  The victim, understandably, wants nothing to do with the father of her baby and has asked that the case not be transferred to the Family Court, but rather that restitution payments be ordered in the amount that would be ordered from Family Court by the Superior Court.  That case is pending in the Supreme Judicial Court under the caption Commonwealth v. Jaime Melendez, SJC-11326.

The victim's argument that the criminal court has no authority to transfer the case to the Family Court is unfounded.  Courts of limited jurisdiction can request such a transfer from the Chief Judge for Administration and Management (CJAM).  Before states will provide services, they require that the mother make every effort to identify the father and then hale the putative father in to pay his portion of child support.  Thus, the transfer seems to be a legitimate and, in many ways, prudent action by the Superior Court judge from a financial, if not emotional standpoint.

In Melendez, it appears that the victim wants it both ways: she wants the child support payments but also that the father be denied all other rights pertaining to the child.  Not only is this an inappropriate criminal sanction, and an almost assured violation of the Eighth Amendment and Art. 26, it is also an impossible restitution order (See, The Charge dated February 4, 2013).  That is, criminal restitution is to pay for damages incident to a crime, not for future contingencies and collateral consequences of that offense.  Even if ordered, criminal courts and probation offices are wholly incapable of enforcing this type of penalty, a function the Family Court conducts on a regular basis.  Not only would any restitution order be subject to the defendant's ability to pay, nothing in a restitution order would prohibit the putative father from taking an active role in the child's life by asserting an action in Family Court.  Clearly the victim’s solution cannot succeed.

But, if (and logically when) the Family Court takes jurisdiction over this case, what are the lifelong ramifications for the victim and her child?  As a single parent, the odds suggest that she will require public funds for everything from child care to educational benefits to housing preferences to supplemental nutritional assistance in addition to whatever contributions may be made by the biological father.  The average cost of raising a child in this country is in the hundreds of thousands of dollars.  When a child is born as a result of rape, does society accept the costs of raising that child because the mother of the child (understandably) does not want the father involved in her life or the life of her child?  Or, does a man convicted of rape gain full rights (and also responsibilities) of parenthood due to the result of his crime?  Does society gain some authority to encourage abortion or adoption over the public cost of raising a child?

Massachusetts has reasonable access to abortion services.  Clearly the victim – for her own reasons which are unassailable and personal to her – chose not to have an abortion.  That is not always a choice.  Indeed, restrictions on abortion would often result in this very outcome which seems, well, wrong.  And, legislative solutions outside of freeing a woman to seek adoption or abortion without any involvement from her rapist cross over the line of constitutionality.

Massachusetts has a "slayer statute" prohibiting anyone charged with murder or manslaughter from taking distributions from the decedent’s estate; anyone convicted would be deemed to have predeceased the victim and therefore ineligible to claim rights of succession (however those found not guilty would be in the same stead as if never accused).  While this legislative response to prevent killers benefiting from their crimes suggests a legislative option for rapists, crafting a law that would de facto deprive a biological parent of parental rights would be impossible to devise within constitutional confines. One that would require payments in child support but deny parental rights is almost unthinkable, even for those convicted of serious offenses. Further, no rational law could aver that rape victims who carry to term will be eligible for all services without regard for the rapist as those kinds of laws are too susceptible to corruption and false claims.  Further, what happens if the male is acquitted? 

Women victims of rape, like all women, should have every option – safe, legal and accessible -  available to them in regard to any resulting pregnancy.  No one takes the idea of abortion any more lightly than carrying a pregnancy to term (oddly, the cost of the abortion fits easily into a criminal restitution argument and would be subject to such an order while child support payments, due to their variability, could not).  

In a twist to the well-intended but ill conceived "victim rights" movement which has distorted and confused the role of the public prosecutor, must a rape victim be informed that her rapist may also be attending soccer games in the future?  Who must provide this information to the victim and when?  With all of the collateral consequences defense attorneys must advise their clients before a guilty plea, is this a collateral consequence about which a prosecutor must advise the victim…even a prosecutor opposed to abortion (or to public funding for children of the indigent)...regarding carrying the pregnancy to term?  Must a prosecutor be in the position of informing a rape victim that she might have lifetime contact with its father or become ineligible for state or federal services?  For, without that knowledge, she cannot make a rational, informed decision whether or not to terminate her pregnancy. 

Query also the child male victim of statutory rape by a woman.  If the offender is impregnated and carries to term, must the victim pay child support?  If not, why not?  Just as a court or legislature could not, within the parameters of the Constitution, prohibit a biological parent's involvement in a child's life by virtue of the fact that he committed a heinous crime, neither could require such an offender to abort a fetus.  Offenders may be guilty of the statutory rape and still choose to carry to term: who pays for the care of that baby?  On the flip side, those who are raped are victims, but who pays for care of the resulting child?  

One strong argument is that the child is innocent and has its "right to life" thereby prohibiting forced abortion for an offender or a victim.  Another, that abortion should be available to the victim or offender along with information about the potential for the male party - offender or victim - to have a lifelong involvement with any resulting child.  As a society, are we prepared for the rapist coordinating schedules for weekend visits?  What about future consequences for the victim in a case of male rape by a woman?  Is the male involved in rape - offender and victim - more like the child molester-toxic waste site comparison, not responsible for the unintended, albeit foreseeable consequences?  

What is the cost of these crimes - these collateral costs that seem far removed and yet are intricately involved with these offenses?  These are not new problems.  Taking responsibility for offspring was often interwoven in the laws of intestacy where the child born out of wedlock was simply not recognized, perhaps the putative father would be required to pay a bond for the child's welfare, but just as easily, the child could become (with its mother) a ward of the state or sold in vendue to the lowest bidder.

In early America, abortion did not carry today's religious taboo, and adoption was widely practiced for out of wedlock pregnancies whether voluntary or not.  Indeed, the idea of the single mother intent on raising her own child - especially one who was the product of a rape - seems relatively new in comparison (undoubtedly it has always been a reality but rape was potentially a capital offense until 1976 and so the father would unlikely be asked for child support payments).   Still, the question remains as to who will pay the cost where the single mother is incapable of supporting herself and her child?  The rapist (or in the case of statutory male rape, the victim)?  The state without any involvement by the rapist (or victim)?  And regardless of cost, can the rapist (or victim) be prohibited from involvement in the child's life if the child is not placed into an adoptive home where parental rights have been surrendered?

A battle is raging in this country that is internally inconsistent and not reflective of reality. It is inconsistent to seek to abolish abortion in all cases and simultaneously argue for personal responsibility for all actions.  That places the woman rape victim in the impossible position of being intertwined with her rapist forever and the male rape victim responsible for the care and upbringing of his offender's child.  Further, reduced availability of state and federal aid will undoubtedly press courts to seek payments from rapists and victims in child support for the offspring of the crime, putting government in the unenviable position of requiring victims of crimes to have lifelong interaction with their assailants.

The pending Melendez case raises important and difficult questions not only for the parties but for society.  Historically, Americans have looked askance at single mothers, particularly those accepting public services.  At the same time, we have tremendous sympathy for rape victims and an inherent sense that women should have total control over their own bodies and destiny.  Is our disdain for delinquent fathers more powerful than our disgust with rapists who want to be involved in their child's life, especially those with the financial means to support the child?  And, in this nation, where our emotions drive our zeal to brand people as criminals and deprive them of dignity and resources otherwise inherent in citizenship, how and where do constitutional principles and protections fit into that charged landscape when a child is involved? 

Jumping Off the Fiscal Cliff, Landing in Troubled Waters

“The test of our progress is not whether we add more to the abundance of those who have much; it is whether we provide enough for those who have too little.”

- Franklin Roosevelt

The legal definition of "sequestration" is to take into custody property of those held in contempt.  Whether it is a metaphorical cliff or slope or staircase, the plummet of sequestration will have its harshest effect on the most vulnerable members of society, a population continually held in contempt simply for being poor.  Among the programs to be cut if Congress fails to act are Head Start, child care assistance, special education, substance abuse treatment, community health services, nutritional and housing assistance.  These programs provide necessities, not luxuries, to our neediest community members.  The cost of failing to engender even a modicum of dignity and sustenance may include far higher costs in increased criminal activity; the overall price will be more, not less despair.

Poverty itself is a crime; being poor is not.  Yet, since our earliest days, we have treated the poor like vermin.  Long before tea dumped into Boston Harbor, long before taxation without representation created a political slogan, convict transportation from England to the Americas was common practice.  Early on, these United States were populated by convicted felons, indentured servants and slaves; of these convicts were the cheapest source of labor.  Because those convicted of crimes were already somewhat outside the protections of the law, conditions of transport, no doubt, were abominable, with many dying on the journey and upon arrival.  Because there had been no price paid up front and no triangulation, such as with captured Africans, it is unknown what value convicts had and how expendable they were.  And they posed a risk: how could one count on continued servitude of a criminal?

Aside from the purchase of convicted felons on the cheap, America's early "poor laws", among other things, permitted the vendue of the poor.  This was considered "relief" to the impoverished - selling them at auction to the lowest bidder for their (wholly unregulated) care.  Only those with no family to support them were even eligible for this assistance.  Those with families were required to rely on them, not society, for their sustenance.  One need not think too hard to realize that this often led to more impoverishment rather than less.  If society helped with the care of one person, the remainder of the family might have enough to survive and provide a tad more to the next generation in order to thrive (indeed, recent studies on food assistance so prove).  Instead, the poor laws plunged marginal families to destitution perpetuating poverty and all its ills.

Able bodied adults would be forced to work; able bodied children essentially sold into apprenticeships and Americans really never thought of this as anything more than proper and just.  While we shudder today at the idea of selling human beings into bondage for the offense of being of African descent, we barely glance at this history of, well, selling people into bondage for the offense of being poor. We still insist that the poor work for any public help they receive.

Without much thought, society labels crimes associated with poverty: violence, drugs, and theft as more pervasive, more frightening and worse than crimes associated with wealth: identity theft, faking drug labels and embezzlement.  There are no qualms about punishing crimes related to poverty more harshly than crimes that destroy entire societies.  The Thirteenth Amendment even left open an exception to slavery and indentured servitude as penance for crimes (the definition of which had to be street crimes as a notion of "white collar crime"  would not exist until 1939.)  Violent crime has been associated with poverty for so long that it the two ideas are almost synonymous.  Law permits the police to describe an area as "high crime" in order to justify a stop of an automobile or a person.  By "high crime area", it is unlikely that they mean Wall Street even though deviance through non-violent, financially motivated offenses permeates society and affects significantly more people than street crime.

When history is honest it reveals that poverty was and continues to be the greatest offense to the American psyche.  To obtain assistance under the poor laws, one needed to have "settlement" (which is a lot like the modern quarrel about who "belongs enough" to be worthy of their neighbors' care.)  This notion of settlement affected who was even eligible for the horrid conditions of a poor workhouse.  Indeed, communities sued each other over who was responsible to pay for the care of a poor person whose settlement was in dispute.  Then, as now, there were deserving and undeserving poor.

Poor laws help explain the continuation of slavery even by states that had outlawed the peculiar institution.  That is, if a community were liable for its poor and it permitted manumission of impoverished slaves, not only would freed slaves become local vagrants without work, but "owners" could unload their elderly, infirm, idle and otherwise unprofitable workers at whim to the care of the state.  To guard against this occurrence, states with higher slavery rates instituted strict laws related to manumission including everything from outright prohibition to the requirement of freed men and women to leave the state within a short period of time of being granted freedom.  To prevent these same folks from becoming a burden elsewhere, in addition to local poor laws in states with high slavery rates, states with low or no slavery prohibited, or limited through high bonds, freed slaves from settling there.  With nowhere to go, even manumission was effectively meaningless.

Fear of poverty and caring for the poor fomented race bias as migration occurred with the end of the bond system and the increased demands of industrialized America.  This combination led to harsher criminal penalties for crimes, particularly those associated with poverty.   Today, it costs roughly half the amount of money per year to house, feed, clothe, and educate a member of society - even an entire family - than it does to remove any one person from society into prison.  Add to that basic cost, providing counsel to the indigent charged with crimes, the cost of the court system to prosecute, defend and adjudicate those offenses and the pricetag of longterm medical care for those serving long sentences (all of which also face cuts in sequestration).  Policies intended to punish the poor have created more problems and cost society more money than simply addressing poverty and our attitude toward the poor.

Without minimizing the difficult decisions Congress must make after years of reckless borrowing and costly wars, query whether entitlements for the poor are the problem or the solution to the nation's woes.  Neither extolling the virtues of the Framers on this topic nor ignoring that most did not believe that the poor should even vote, let alone care one way or the other about the survival of the impoverished, history may be of assistance.  Major reform movements of the 19th Century, unapologetically rooted in the very same morality that instituted the original poor laws, brought a new consciousness to the plight of the poor and the effect of poverty on the rest of society.  Those efforts would eventually result in federally funded social welfare programs, many of which were instituted during the greatest fiscal disaster of modern times.  These programs, along with those created in the 1960's, demonstrate compassion, reflect a societal priority and are now an accepted aspect of American life. They also lifted us out of the Great Depression and gave meaning to much of the Civil Rights movements.  The opposite - treating the poor like criminals, criminalizing the effects of poverty, and ensuring continued poverty through policy choices are historically proven to perpetuate and compound rather than eliminate problems. 

Sequestration will affect the poor severely leading to higher poverty rates, more crimes associated with poverty, and higher costs in regard to prosecuting and defending those offenses with further ramifications for future generations.  This affects all of America - North and South, 53% and 47%, blue and red alike.  Aristotle warned that poverty is the parent of revolution and crime; thus the cost of cutting welfare programs in a time of great need may become a terribly expensive error.  If we insist upon the attendant punishments for poverty-related crimes, especially without ever addressing "white collar crime" in a meaningful way, we will continue to bankrupt our future premised upon fear and loathing of the poor rather than our disgust that poverty exists at all in a nation premised upon equality with liberty and justice for all.