Having just passed the 55th anniversary of the Supreme Court’s decision in Gideon v. Wainwright, holding that an indigent defendant is denied his fundamental right to a fair trial without assistance of counsel, Georgetown lawprof Paul Butler has revisited his 2013 Yale Law Review article on Gideon.

Have we failed indigent defendants by our societal refusal to adequately fund indigent defense? Nah, that’s not his problem at all.

A low income person is more likely to be prosecuted and imprisoned post-Gideon than pre-Gideon. Poor people lose in American criminal justice not because they have ineffective lawyers but because they are selectively targeted by police, prosecutors, and law makers. The critique of rights suggests that rights are indeterminate and regressive. Gideon demonstrates this critique: it has not improved the situation of most poor people, and in some ways has worsened their plight. Gideon provides a degree of legitimacy for the status quo. Even full enforcement of Gideon would not significantly improve the loser status of low-income people in American criminal justice.

It’s one thing to argue that over the past 55 years a great many things have happened in criminal law that have exacerbated the circumstances of the poor. But how is it that providing defense lawyers for the poor is “regressive”?

The “critique of rights,” as articulated by critical legal theorists, posits that “nothing whatever follows from a court’s adoption of some legal rule” and that “winning a legal victory can actually impede further progressive change.” My thesis is that Gideon demonstrates the critique of rights. Arguably, Gideon has not improved the situation of accused persons, and may even have worsened their plight.

The notion that a legal victory can impede more effective change* may be counter-intuitive, but one that can wreak havoc in the trenches. What appears to be a big win on paper doesn’t necessarily translate to a real win in practice. More importantly, a palliative win, the sort that makes you feel all warm and fuzzy but fails to produce the putative change intended, can be very damaging.

In the context of Gideon, the Supreme Court held that counsel is a fundamental right, but failed to establish how that mandate would be fulfilled. And if Gideon doesn’t float your boat, consider the massive joke of Brady v. Maryland, which failed to provide the mechanism by which its wondrous gift would be delivered. But how does the right to counsel “worsen” the plight of the indigent?

The reason that prisons are filled with poor people, and that rich people rarely go to prison, is not because the rich have better lawyers than the poor. It is because prison is for the poor, and not the rich. In criminal cases poor people lose most of the time, not because indigent defense is inadequately funded, although it is, and not because defense attorneys for poor people are ineffective, although some are. Poor people lose, most of the time, because in American criminal justice, poor people are losers. Prison is designed for them. This is the real crisis of indigent defense. Gideon obscures this reality, and in this sense stands in the way of the political mobilization that will be required to transform criminal justice.

There are two distinct assertions being made. That there are vastly more poor in prison than rich is indisputable, but whether that’s because “prison is designed” for poor losers is a matter of ideology. While this may be a controversial assertion, it’s also somewhat gratuitous, and thus not material to the second, and more significant assertion: that Gideon provides cover for over incarceration rather than safeguards the rights of the indigent.

I know that, for some readers, these claims are counterintuitive, and I ask these readers’ indulgence for the time it takes to read this Essay, in which I will attempt to prove my claims. It is also important to emphasize that I am not making a “but-for” claim of causation. Gideon is not responsible for the exponential increase in incarceration or the vast rise in racial disparities in criminal justice. As I explain later, however, Gideon bears some responsibility for legitimating these developments and diffusing political resistance to them. It invests the criminal justice system with a veneer of impartiality and respectability that it does not deserve. Gideon created the false consciousness that criminal justice would get better. It actually got worse. Even full enforcement of Gideon would not significantly improve the wretchedness of American criminal justice.

The knee-jerk reaction to this argument is that it’s crazy. How could it possibly be a bad thing to provide lawyers for the poor? Is he suggesting that it would be better to have the poor prosecuted without lawyers? That’s crazy, right?

Not so fast. As Butler explains, his point is counterintuitive, but it focuses on a deeper problem, one that most crim law reformers lack either the experience or depth to grasp. Butler isn’t suggesting that thrusting the indigent into the trenches without lawyers is a good thing, but that it’s an inadequate remedy for a larger, more systemic problem, that defendants lose, whether with or without counsel. Not because they’re necessarily guilty. Not because their guilt, assuming they are guilty, is so awful as to rationally justify the obstacles to their having a level playing field.

What this second assertion seeks to establish is that we’ve created a minefield of crimes around the poor, sent in an army of cops to their neighborhood to catch them (or just make it up if need be) violating the law, and then give them a lawyer as they face a system that produces guilt in 97% of its cases, with or without counsel. But we can all feel good about it because of Gideon. After all, we give the poor free lawyers, right? What more can we do?

Of course, it’s not that Gideon is, in itself, the cause of the problem, or anything other than a great right in theory. But many ideas that seem, at first blush, to be huge wins, highly favorable to the defendant, but inadequate to change the outcome, serve only to perpetuate the problem while making us feel better about them.

This is why it’s so critical to shed the lies we tell ourselves about what the real problems are, and what solutions will seriously address them. We have Gideon. We have massive over-incarceration. The former removes some of the stain from the latter, even though there is a very serious question whether it provides anything more than a veneer of respectability on a system where the poor can’t win no matter what.

*Butler characterizes it as “progressive change,” but since this was published five years ago, it’s unclear whether “progressive” was used then in the sense it’s commonly understood today.