Uneven Access to Justice: Social Context and Eligibility for the Right to Counsel

Abstract

The right to counsel is a cornerstone of due process. This article explores the legal construction of “indigency” in criminal county courts. I examine Texas’s Fair Defense Act (2001), a policy mandate that required all 254 counties to create formal criteria used for determining eligibility for access to counsel, as an empirical case for understanding local policy choices that shape access to justice. Drawing on novel data from court plans, I find significant variation in the stringency of eligibility criteria used to determine indigency. Results show that socioeconomic conditions, racial threat, interest group presence, and elements of judicial discretion are key determinants of restrictive eligibility criteria. These findings suggest racial threat can be tied to the institutional design of policies, rather than the enforcement or dormancy of criminal law. The variable institutionalization of eligibility criteria has implications for understanding the entrenchment of racial and class-based inequalities in access to legal institutions.