By San Francisco Public Defender Jeff Adachi
The wheels of justice may turn slowly, but they still flatten countless Americans trapped beneath their weight.
We’ll look back at this moment in history as a tipping point: When entire communities scarred from police brutality and weary from racial profiling looked upon the broken bodies of unarmed citizens and said “enough is enough.” When the Black Lives Matter movement harnessed the frustration wrought by mass incarceration and delivered it directly to Main Street.
Next stop: the courtroom. And there is nobody in the system more qualified to confront bias and demand change than public defenders.
There are more than 25,000 public defenders and thousands more legal aid attorneys across the country who fight like hell for the rights of their clients. Most of these clients are black and brown. All are poor.
The color of our clients matters because U.S. criminal justice system has a race problem. Uncontroverted studies show African Americans are more likely to be stopped, detained, imprisoned and convicted than their white counterparts. Many roads lead to this morass of racial disparity: biased policing, prosecutorial overcharging and explicit and implicit bias by judges who set bail and sentence persons convicted of crimes.
It is public defender clients who bear the brunt of racial discrimination. The fact is, we are already in the trenches. So let’s brush up on our fighting techniques. Here are 10 things that public defenders can do to litigate racial justice issues in court:
1. Talk About Race With Prospective Jurors.
In cases where the race of the accused is an issue, or there are other issues such as cross-racial identification, public defenders must screen jurors who may hold biases that affect their decision-making. This includes discussing implicit bias, the unconscious cognitive processes that causes us to rely on stereotypes in our judgments. The U.S. Supreme Court has held that lawyers have a constitutional right to question jurors on racial prejudices when a “reasonable probability” exists that such views would affect their ability to be fair.
2. Insist on Diverse Juries
While we are often reminded that we are entitled to a jury of our peers, the reality can be quite different. In San Francisco, we recently convened a a panel of 90 prospective jurors for the trial of our black client. There wasn’t a single African American in the bunch. A study by Duke University found juries formed from all-white jury pools convicted black defendants 16 percent more often than white defendants. Public defenders should make note when there are no minorities on a jury and even consider filing to jury challenge when the panel is not representative of the client’s community.
3. Report Prosecutors Who Use Their Peremptory Challenges to Strike Black Jurors Without Just Cause
The High Court ruled in the landmark Batson v. Kentucky that prosecutors cannot use their jury challenges to strike a person due to race. Unfortunately, the practice remains rampant according to recent studies. Public defenders need to make Batson challenges whenever prosecutors exercise their challenges in a discriminatory manner. Prosecutors who violate their oath of fairness can also be reported to the state bar for discipline.
4. Report and Challenge Biased Judges
Most states have ethical codes that prohibit judges from discriminating based on race. Yet studies have shown that judges are as susceptible to the same explicit and implied biases that plague all of us. Statutes often allow parties to challenge a judge who has expressed racial biases, and public defenders should raise these challenges when grounds exist. Judges who express bias should also be reported to judicial discipline bodies.
5. Insist on Bail Hearings & Raise Racial Disparities in Pre-trial Incarceration
Studies have shown that minorities are more likely than whites to be held in jail while awaiting trial. Many jurisdictions disproportionately confine people of color by setting unreasonably high bails. Public defenders can and should demand bail hearings, even after bail is set, to challenge the amount and raise the issue of disproportionate confinement. We recently began doing this in San Francisco, and experienced a 30 percent success rate in winning freedom for our clients or reducing their bail.
6. Sponsor a Court Watch Program
Why has police brutality received so much more attention than injustice in the courtroom? Because what happens in court is largely hidden from the public’s view. Many Americans are surprised to discover they have a right to watch what happens inside the halls of justice. San Francisco’s Court Watch program encourages community members and youth to attend court hearings. The group confers with public defenders to learn more about the system and its treatment of minorities, so they may become watchdogs of fairness in the courtroom.
7. Identify Unfair Charging Patterns By Prosecutors
Public defenders should review their cases to determine if the prosecution is charging individuals of one race differently than another. Recently, I had a case where a young African American man with no prior record was charged with felony gun possession while a white man accused of the same crime under similar circumstances was charged as a misdemeanor. Raising this glaring inequity resulted in a favorable outcome for my client. In another local case, the federal public defender made a motion for discriminatory prosecution following drug stings in which all 37 people arrested were African American. One of the officers involved in the arrests was caught on video directing his team to arrest an African-American rather than a non-African American alleged drug dealer.
8. Collect Statistics
Unless you can show the data, you’re just acting on a hunch. Public defenders can play a vital role by collecting statistics on illegal stops and searches, racial profiling and other forms of police or governmental misconduct. San Francisco recently passed legislation requiring the police department to keep statistics on the race and gender in all of its traffic stops, detentions, arrests and searches. San Francisco’s Reentry Council also commissioned a report quantifying unequal treatment from arrest to sentencing.
9. Form a Racial Justice Committee
Harness your collective power by organizing to propose solutions to eradicating racism in the system. Our office formed a racial justice committee in 2013, and the committee was successful in implementing a 9 point plan for reform, which included body cameras, collection of race statistics and other initiatives. Our attorneys also banded together with public defenders from other counties to create the Bay Area-wide Public Defenders for Racial Justice, which provides valuable training. Draw from the collective brain trust in your office and work with other agencies, such as the ACLU, Black Lives Matters and local legislators to implement needed system reforms.
10. Let Your Clients Know You Care
As public defenders, we often become jaded to the system treating people differently based on their race. It may seem like a hopelessly entrenched problem. But we need to talk with our clients about these realities so they will be empowered to stand up for justice in their own case — whether that means going to trial, or simply understanding their public defender “gets it” and is sensitive to the struggle going on in this country.
Public defenders can support the Black Lives Matter movement by litigating against racial injustice wherever we find it. We must also educate community members on the vital role that public defenders play as watchdogs of the constitution and protectors of civil rights. It is our obligation to ensure the system is accountable to the public it serves. We must work collectively and collaboratively to improve outcomes for our clients and their families and strategically fight for the eradication of racism in the criminal justice system.