Michele Estrin Gilman *


Is stealing a loaf of bread to feed a starving family of eight a crime? Or, is poverty a defense? In Victor Hugo’s classic, Les Misérables, the protagonist, Jean Valjean, commits this crime and is sentenced to five years of hard labor. Hugo clearly intends the reader to sympathize with Valjean. The punishment not only seems grossly disproportionate to the crime, but Valjean also seemingly had no other choice. While Valjean’s crime may inspire sympathy among readers (and musical theater aficionados alike), it is widely assumed and accepted in our American criminal justice system that poverty is not a defense to crime. In 1971, Judge David Bazelon of the United States Court of Appeals for the District of Columbia famously challenged this assumption, arguing, in dissent to a decision upholding a murder conviction, that juries should be allowed to consider a defendant’s “rotten social background”—that is, how growing up under circumstances of severe environmental deprivation can subsequently influence a criminal defendant’s mental state and actions.

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*Professor of Law; Director, Civil Advocacy Clinic; Co-Director, Center on Applied Feminism, University of Baltimore School of Law; B.A., Duke University; J.D., University of Michigan Law School. I would like to thank Matthew Fraidin, Leigh Goodmark, Dan Hatcher, David Jaros, Margaret Johnson, Katie Loncarich, Libba Patterson, Lisa Pruitt, and Robert Rubinson for their thoughtful comments on this article, as well as participants at the Feminist Legal Theory Collaborative at George Washington University Law School and the Class Crits IV conference at American University Washington College of Law.