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Lack of Fairness in Receiving Public Defense Services: Study Reveals Injustice in Death Penalty Cases

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Although Americans want to believe that courts are fair, particularly in capital punishment cases, a new study by American University School of Public Affairs' Professor Jon Gould shows the courts are falling short.

Gould and Kenneth Leon, a visiting assistant professor at George Washington University, coauthored "A Culture That Is Hard to Defend: Extralegal Factors in Federal Death Penalty Cases," published this fall by Northwestern University School of Law's Journal of Criminal Law and Criminology.

Looking at data from federal death penalty cases between 1998 and 2004, the researchers explored why defendants in some cases did not receive the full range of public defense services. The results were surprising.

Gould and Leon discovered that resources allocated to ensure fair trials were driven by the social and political climate of the jurisdictions and the judges’ backgrounds rather than the facts of the cases. Some judges did not grant enough money to the defense attorneys to investigate or bring in expert witnesses. Defendants in those courts were left with attorneys who lacked experience or were not recommended by the local federal public defender or the Office of Defender Services.

The study found that those extralegal factors hurt poor defendants and increased their likelihood of receiving a death sentence. Defendants who received resources below a basic floor (which comprised about 30 percent of cases) were at twice the risk of being sentenced to death.

“A system that we think of as being governed by law is really governed by politics and culture on the most important question a criminal justice system can decide: who is being sentenced to death or not,” said Gould.

Which particular judge presides over a defendant’s case can affect that person’s chance of having the case looked at openly and fairly.

“This is empirical evidence that our federal system, which is generally considered to be the gold standard of American criminal justice, is anything but gold. It is more like tarnished brass,” said Gould. “If we are seeing these problems in the best system for the worst punishment, we can only imagine the risk to due process and equal protection in other courts around the country where the stakes are nowhere as high.”

Gould said that although the findings are consistent with those of other death penalty research projects, he is saddened and disappointed that this injustice exists in the federal courts. Although some media attention in recent years has been given to overturning wrongful convictions, he suggests that the public should be concerned about the capital-case- processing system.

To remedy the situation, Gould calls for leveling the playing field and making decisions about what resources defendants can have outside the reach of judges.

“Prosecutors don’t face these challenges. They don’t have to go to a court to ask for resources to do investigations and get experts. Only the defense does,” he said.

Gould also recommends more resources to help those accused get a fair shot at defending themselves and to provide further training for defense counsel to understand what the standard of representation ought to be.

“This may or may not change the ultimate outcome of the cases — although I suspect it will. But even if it doesn’t, I don’t think any of us can feel comfortable with someone being sentenced to death without an adequate opportunity to defend himself,” said Gould.