On the fiftieth anniversary of Gideon v. Wainright, the U.S. Supreme Court decision giving the poor the right to attorneys, public defender offices “are still treated as the stepchildren of the criminal justice system, under resourced and understaffed,” said Jeff Adachi, head of San Francisco’s public defender office.
Adachi was addressing a two-day criminal ethics litigation conference Thursday, hosted by U.C. Hastings College of the Law in San Francisco.
He warned the law students and lawyers from both prosecution and defense practices that indigent defense is in crisis. “A basic contradiction exists if a poor person’s justice means being represented by a public defender who is handling 500 felony cases,” he said.
While a member of the American Bar Association’s Standing Committee on Indigent Defense, Adachi said he was “shocked” by the poor quality of indigent representation throughout the U.S. In many states public defenders do not have the power to refuse cases even when their caseloads exceed what any lawyer could handle.
“Yet the system, including judges, prosecutors and defenders, often turns a blind eye to what amounts to everyday injustice,” he said.
He asked the group to consider implicit, unconscious bias in their own practices, may affect their representation of clients.
Studies of unconscious bias have shown judges will sentence African-Americans for longer terms than whites for identical crimes and prosecutors make more severe charging decisions and public defenders may push blacks to make plea deals more readily, he said.
“We must begin by taking a critical look at what we do,” he said.
Adachi encouraged participants to try taking a test developed to measure implicit or unconscious bias, called the Implicit Association Test. It can be found at: www.projectimplicit.net.
He pointed out that addressing bias has become an issue for the ABA, which has draft rules on Criminal Justice Standards, that for the first time will prohibit bias by both prosecutors and criminal defense lawyers.
Standard 4-1.6 says defense lawyers should not manifest by words or conduct bias or prejudice based on race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status.
For prosecutors the standard, 3-1.6, is even higher. It prohibits bias in exercising prosecutorial discretion and would require prosecutor’s offices to regularly assess potential for biased or unfairly disparate impacts of its policies on communities.
The Hastings conference continues through Friday.