Attorney Kristin Rice spoke about racism in the legal system at an online “Mission Moment” meeting last week. The presentation was sponsored by the YWCA of Gettysburg and Adams County.

Rice said she spoke not in her official capacity, but rather as a “student of criminal justice and race.”

Rice has been working in the Adams County Office of the Public Defender since 2003 and has been its Chief Public Defender for the past 11 years. Rice said she was appointed by the county commissioners, making her independent from the court.

Rice and her three assistant attorneys handle about 1,000 new cases every year.

The Adams County public defenders represent people with annual income at only 150 percent of the federal poverty level or less and who are facing potential jail time as well as all people who are incarcerated, regardless of their financial resources.  The public defenders also represent all juveniles who are charged with criminal offenses and adults being involuntary committed due to mental health issues.

The authority for the Public Defender position comes from the PA Public Defender Act as well as the 1963 U.S. Supreme Court case of Gideon v. Wainwright which ruled the Sixth and Fourteenth Amendments to the U.S Constitution guarantee a right of legal counsel to anyone charged with an offense that could result in incarceration, generally misdemeanors and felonies.

The Public Defender Act is found at 16 P.S. Sec. 9960.3 et seq.

Rice said Pennsylvania is the only state that relies entirely on county funding for its public defenders, and that each county is responsible for having its own public defender, although two counties may share one.

Rice said her opinions were based on her own experiences but also influenced by “Just Mercy,” a book by Bryan Stevenson as well as “A Descending Spiral” by Mark Bookman and “The New Jim Crow” by Michelle Alexander.

Rice noted the profound disparity on a state and national level in how people are treated in the criminal justice system based on the color of their skin.

Rice said that according to the U.S. Census Bureau, twelve per cent percent of Pennsylvanians are Black but forty-five percent of state prison inmates are Black. Forty-two per cent of people on parole in Pennsylvania are Black.

She said Blacks are also more likely than white people to be revoked from parole. “Pennsylvania is notorious for having a very high revocation rate of parole and probation.  And if you’re Black you’re more likely to be revoked from parole, for both technical violations and because of new charges,” she said.

Racial profiling

Rice talked about racial profiling – when race is used by law enforcement as a reason for criminal suspicion.  “There’s a lot of data on profiling,” she said. “Black drivers are more likely to be pulled over and cited, whereas Whites are more likely to be given warnings, according to Bureau of Justice statistics. Additionally, Black drivers are twice as likely to be arrested during a traffic stop.”

“I have been asked whether racial profiling occurs in Gettysburg.  I’m quite sure it does. And I’m quite sure it happens in Upper Adams with our Mexican farmworkers. I know that it happens but it’s very, very difficult to prove,” she said.

“Once a police officer spots a violation of the Motor Vehicle Code, he or she can pull the vehicle over, even if the violation is very minor. But no police officer will testify during a suppression hearing that skin color played a role in the stop. The police officer may not even be consciously aware of his or her bias regarding skin color and criminality.”

“On an individual basis it’s very difficult to fight racial profiling cases. I really think the only way we can do it is with data and statistics,” she said

Arraignment

Rice said decisions made during preliminary arraignment, usually by magistrate judges, were also likely to be biased based on race.

She said people who are arrested are usually given a preliminary arraignment by video and then either released on their own recognizance (ROR) or required to post bail.

Rice said that in Pennsylvania, 55 percent of Blacks but only 38 percent of Whites are required to post cash bail.

“Most of us here today can come up with some cash for bail.  People of means can generally get out of prison pending their trial or guilty plea. But most defendants who are represented by Public Defender offices have no ability to post cash for bail.”

Rice said cash bail keeps poor people incarcerated and perpetuates systemic racism.  “When people have to sit in jail they may lose their jobs, their housing, their family.  It can absolutely have devastating consequences. People may plead guilty even if they are innocent in order to be released for time served or to get to work release, which requires that a defendant be sentenced.”

The American Civil Liberties Union of Pennsylvania has made several suggestions for bail reform, including supervision and auditing of the bail set by Magisterial district judges and requiring district judges to use the least restrictive means necessary to guarantee the defendant’s future appearance in court.

Juries 

Rice said the jury system also is biased against Black defendants. “Although Americans are supposed to be afforded presumption of innocence, Blacks instead have presumption of guilt and dangerousness due in part to strong unconscious associations between blackness and criminality’, according to Bryan Stephenson’s Equal Justice Initiative.” https://eji.org

Rice said juries are selected in Adams County from the list of residents who have paid the per capita tax, which is race-neutral.  Using voter registration lists, property taxes and drivers’ licenses, as some jurisdictions do, tends to disproportionately exclude people of color. However, jury selection can have an insidious racist determinant in the use of “peremptory strikes” which allow the attorneys selecting jurors to strike a limited number of potential jurors for no given reason. The 1986 U.S. Supreme Court case Batson v. Kentucky prohibits a strike of a juror based on racial discrimination. However, it is not difficult to come up with a neutral reason to strike a juror, if presented with a Batson challenge, such as  unpaid traffic tickets, as a pretext for racial discrimination, she said.

Capital Punishment

Rice said that at the end of 2020, 65 percent of the 120 prisoners on death row in Pennsylvania were Black.

Rice said race is an issue that continues to be at the forefront of America’s capital punishment debate. According to the U.S. General Accounting Office, in 82 percent of the states reviewed, the race of the victim was found to influence the likelihood of being charged with capital murder or receiving the death penalty, i.e. those who murdered Whites were more likely to be sentenced to death than those who murdered Blacks.

Rice said many people are under the mistaken assumption that the death penalty is less expensive than housing a prisoner for life. “That is so far from the truth,” said Rice. “Since 1976 when the death penalty was resurrected, Pennsylvania has spent $1 billion on securing death penalty convictions. Legal costs in death penalty cases exceed regular murder cases by $353,000. That’s taxpayer money.”