By Professor Eric Miller
Access to justice through our court system is skewed on the basis of race. In the criminal justice system, the decisions of of criminal justice officials to target, arrest, charge, prosecute, convict, and punish our citizens fall more harshly on minorities, and especially African Americans and Latinos. The effect is to channel Black and Brown people into the criminal justice system in greater numbers, and for longer, than similarly situated white individuals.
The problems of race and the courts are local and structural. These problems are magnified in a criminal justice system that also responds to local and structural factors. Prosecutors, who make the decisions about whether to charge a defendant and the severity of the charge, are overwhelmingly white. They are incredibly powerful, and often have more impact on the sentence than the courts. Courts themselves are often overworked, and spend little time questioning the evidence in low-level criminal cases. At significant stages of the process—when sassing bail, or appointing counsel—the court may make decisions that undermine the rights of poor defendants. And those defendants are now often required to pay for the privilege of having a court release and monitor them on bail, probation, or parole.
Matters are even worse on the civil side, where minority plaintiffs lack the resources to hire attorneys, and minority defendants who are unable to pay fines often find civil penalties converted into criminal charges. Without adequate representation to argue for fine reductions on the basis of indigency, these litigants cannot turn to the court system for relief, but are instead re-victimized by an overworked system that sometimes cares more about processing cases than doing justice.