Ensure Fair Trials and Quality Indigent Defense
Due process – fair access to lawyers and courts when accused of a crime – is a cornerstone of our justice system, as well as a basic human right. We all know that this right is not dependent on a person’s ability to pay; everyone has the same constitutional right to competent representation when their liberty is threatened. This idea is central to the notion that our justice system is fair to all and blind to individual differences in economic status, race, and others aspects of our identities. But we continue to ignore the national crisis happening around indigent defense. Far too many defendants are deprived of their right to fair jury representation, provided with overburdened public defenders, and hampered by structural biases in the system. In many courthouses throughout the country, defendants who lack resources either receive no representation at all, or are represented by attorneys juggling hundreds of cases. Neither scenario provides the level of representation that our Constitution requires. National and local bodies of government should adopt comprehensive strategies to address the indigent defense crisis in this country, both by ensuring adequate representation for all defendants and making the system easier to navigate.
Solutions & Actions to Ensure Fair Trials and Quality Indigent Defense
1) Cap Defense Counsel Caseloads
Congress, and local and state legislatures should pass legislation that requires a universal cap on criminal defense counsel caseloads. This will promote the provision of high quality and ethical legal services.
2) Allow Justice-Involved Individuals on Juries
The judiciary and local and state legislators should ensure that prior involvement in the justice system does not bar an individual's ability to participate in a jury. The majority of states have instituted life-time bars that prevent individuals who have already served their sentences from ever serving on a jury.
3) Partner with Bar Associations and Law Schools
Local bar associations and law schools should form partnerships with each other, courts, and defender attorney organizations to expand indigent defense programs.
4) Prosecute Discriminatory Prosecutors
The Department of Justice (DOJ) and federal prosecutors should enforce 18 U.S.C. 243, which prohibits racially discriminatory jury selection, by investigating and filing charges against prosecutor offices that have a pattern or practice of racial discrimination in the jury selection process.
5) Increase Representation for Misdemeanors
Congress, and local and state legislatures should provide additional resources to increase indigent representation for misdemeanor offenses to ensure compliance with constitutional obligations.
6) Retroactively Apply Batson
Congress should ensure that the rule banning racially discriminatory use of peremptory strikes announced in Batson v. Kentucky is be applied “retroactively to death row prisoners and others with lengthy sentences whose convictions or death sentences are the product of illegal, racially biased jury selection but whose claims have not been reviewed because they were tried before 1986."
7) Increase Attorney Compensation
Congress, and local and state legislatures should increase the attorney compensation rate for serving on the indigent defense panel, especially for time outside the courtroom, to incentivize attorneys to allocate adequate time and preparation for these cases.
8) Restore Party-Controlled Voir Dire
The judiciary and local and state legislators should promote jury selection practices that restore party-controlled voir dire, which allows attorneys on both sides in a criminal trial to thoroughly question jurors about their relevant life experiences in order to eliminate the use of race or gender as proxies for experience.
9) Create Alternatives to Voter-Based Juror Rolls
The judiciary and local and state legislators should explore alternatives to voter-based juror rolls to ensure that community members who are not on the voter rolls can nonetheless participate in juries.
10) Offer Hardship Accommodations to Jurors
The judiciary should offer hardship accommodations to jurors, which include access to childcare, transportation passes, or mileage reimbursement, to ease the logistical and financial burden that low-income jurors face.
Solutions in Action
We’ve identified programs and initiatives that incorporate some of these solutions. They may provide inspiration, albeit at times imperfect, for others who are interested in instituting some of these policies.
- Gideon’s Promise has a Law School Partnership Program, where law schools support graduates in a public defense position in the South for a year.
Flashcards
Below are flashcards for you to use the next time you have a media interview, need to write an opinion piece, or just need some ideas as you think through your messaging strategy.
Due process is a cornerstone of our justice system
value
Due process - fair access to lawyers and courts when accused of a crime - is a cornerstone of our justice system, as well as a basic human right. We all know that this right is not dependent on a person’s ability to pay; everyone has the same constitutional right to competent representation when their liberty is threatened. This idea is central to the notion that our justice system is fair to all and blind to individual differences in economic status, race, and others aspects of our identities.
problem
But we continue to ignore the national crisis happening around indigent defense. Far too many defendants are deprived of their right to fair jury representation, provided with overburdened public defenders, and hampered by structural biases in the system. In many courthouses throughout the country, defendants who lack resources either receive no representation at all, or are represented by attorneys juggling hundreds of caseloads. Neither scenario provides the level of representation that our Constitution requires.
solution
National and local bodies of government should adopt comprehensive strategies to address the indigent defense crisis in this country, both by ensuring adequate representation for all defendants and making the system easier to navigate.
action
Urge policymakers to pass legislation that requires a universal cap on criminal defense counsel caseloads; and increases payments to attorneys on the indigent defense panel by increasing the attorney compensation rate to create incentives for attorneys to allocate adequate time and preparation for these cases.
For more information on ensuring fair trails, check out:
- The Sentencing Project, which advocates for a “fair and effective U.S. criminal justice system by promoting reforms in sentencing policy, addressing unjust racial disparities and practices, and advocating for alternatives to incarceration.”
- The Lawyers’ Committee for Civil Rights, which seeks to “secure equal justice for all through the rule of law, targeting in particular the inequities confronting African Americans and other racial and ethnic minorities.”