Ismail Smith-Wade-El

Ismail Smith-Wade-El

In late May, the Supreme Court of the United States handed down a 7-1 decision that Georgia prosecutors violated the Constitution by intentionally eliminating all African- American jurors from the trial of Timothy Tyrone Foster, an African-American death row inmate.

There’s so much at issue here, that it’s difficult to determine where to start.

I should first say that despite Foster’s original case having been tried in 1987, when he was a teenager, this is not a 30-year-old problem.

Prosecutors rarely openly admit that race is their reason for deploying peremptory challenges, which they can use to remove jurors from a trial without offering a reason, and yet many in the know insist that race is a factor in jury selection. An amicus brief, filed in support of Foster by a group of former prosecutors — Republican and Democrat, from places as far apart as Los Angeles County, Anoka County, Minnesota, and Florida’s Fourth Circuit — reads: “Numerous studies demonstrate that prosecutors use peremptory strikes to remove black jurors at significantly higher rates than white jurors.”

It goes on to suggest that much of this misconduct takes place under the guise of supposedly race-neutral decision-making.

Thurgood Marshall opined in 1986 that the only way to end racial discrimination in jury selection was “by eliminating peremptory challenges entirely.”

What, to me, is most remarkable about this case is the value of legal representation to Foster. Without the continued assistance of competent counsel, who found the prosecutor’s notes under the auspices of an open- records request, Timothy Foster might well be dead now. I’m not suggesting that Foster shouldn’t have been convicted, but rather am making two points.

First, racial discrimination in our legal system is alive and well. Maybe even more importantly, the Sixth Amendment, which guarantees a speedy trial and the assistance of counsel, is as crucial to protecting oneself from government overreach as any other amendment, including the Fourth and the Second. Were he alive, I might instruct you to ask Kalief Browder, who killed himself after being abused by guards and other inmates over a three-year stay in Riker’s Island without trial. He was never convicted of a crime.

Second, make no mistake: the unconstitutional actions of an overzealous prosecutor, who is incentivized to pursue convictions and disincentivized to protect the rights of the defendant, do constitute government overreach. In a legal system where we pay constant lip service to the presumption of innocence, the assistance of counsel ought to be unquestionable, and yet often the poor are denied meaningful access to this right.

Surely, we would all agree that one’s constitutional rights should not be dependent on the size of one’s bank account. A unanimous Supreme Court affirmed the right to counsel and articulated the responsibility of federal and state government to provide for indigent defense in 1963’s Gideon v. Wainwright.

Yet, all over the country, the poor stand trial for crimes without adequate representation. In Minnesota, public defenders have previously claimed not only that they have less than 15 minutes to spend with each client on a given day, but that caseloads sometimes literally require them to be in two different counties at the same time — a situation that puts them at risk for contempt of court.

This is nowhere more pronounced or more public than in New Orleans, where the public defender’s office is refusing to take some cases because its lawyers simply do not have the time to defend those clients. That means that many poor persons must either stand trial without a lawyer, a clear violation of their right to counsel, or wait indefinitely in jail for someone to get around to them, a clear violation of their right to a speedy trial.

Our own state is not immune.

In 2012, the American Civil Liberties Union filed an employment lawsuit against Luzerne County, claiming that overwhelming caseloads, underfunding, and a hiring freeze have led to unmanageable conditions. This left 300 eligible persons without legal representation, because the public defender’s office simply could not handle all the cases.

The Interbranch Commission on Juvenile Justice found that public defenders were responsible for 800 to 1,000 cases per year in Luzerne, four to five times the recommended standard. Not irrelevantly, this is the same county in which the despicable “kids-for-cash” scandal took place.

These situations, which leave the poorest Americans without adequate representation or any representation at all, are often combined with situations where indigent defendants must pay court fees whether they are determined to be innocent or guilty. Combined with charges or a plea deal they are often ill-equipped and ill-assisted to negotiate, this all seems more like government bullying than justice.

The issue exists at the intersection of race, poverty, and criminal justice, three hot-button issues this election cycle. Yet none of the current presidential candidates has addressed indigent defense or the Sixth Amendment. Other issues have taken precedence over protecting the constitutional rights of the poor. That is a shame.

But this is an issue with a straightforward solution: more money. Indigent defense must be funded, lest our legal system go from demonstrably unfair to the poor to a simple farce. In The New York Times, John Pfaff, professor of law at Fordham University, suggests that $4 billion could triple investment here, all for about 0.3 percent of the federal discretionary budget.

The alternatives are not without cost: when people languish in jail without trial, we pay financially.

But when the government, for that is what the legal system is, can freely push around or punish those citizens who have the least, we suffer morally.

 Ismail Smith-Wade-El is a Lancaster resident and research associate for the Mayor’s Commission to Combat Poverty.

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