Richard Gabriel

Michelle Rey LaRocca

Last month, the U.S. held a highly contentious election, with numerous attacks on the integrity of our voting process. While this has become a normal part of the political landscape since 2020, research from a variety of polling organizations has shown a significant decline in the public's trust in most major institutions, as well.[1]

Data has revealed steep drops in public confidence in the police and the criminal justice system, as well as in the U.S. Supreme Court, which had traditionally enjoyed much higher favorability ratings in the past.

With tens of millions of cases filed every year,[2] and over a hundred billion dollars spent on law enforcement, civil and criminal litigation, the courts, and our corrections system,[3] the cost of that lost trust is too high.

While polling data on public opinions can seem somewhat abstract and distant, the erosion of public trust has very real and serious consequences for the justice system, the rule of law and our foundational democratic principles.

If the public has less trust in the justice system, they come to question the legitimacy of the law; become less compliant with laws; and become less cooperative with law enforcement, which can, in turn, affect police morale and performance.[4]

As we have recently seen with controversies over Supreme Court rulings and court cases, a distrustful public may question the legitimacy of judicial rulings and jury verdicts, leading to social unrest and instability.

More importantly, this loss of faith in our institutions intensifies divisiveness, causing us to mistrust each other and close our minds to new or different points of view.[5] 

The justice system is reliant on law enforcement, the courts and corrections system being open-minded and objective in considering all the facts in a given matter. Yet, that becomes more difficult in a mistrustful environment.

These declines in institutional confidence may seem easily explainable by political polarization and greater public awareness of social injustices, but the reasons are far more complex. These easy explanations make it seem like this distrust was inevitable. And when we see events as inevitable, we tend to accept them. They become the norm — and therein lies the risk.

In 2023, we formed the Trust in Justice Project to better understand the causes of the loss of confidence in our justice system, the ramifications of that loss, and what improvements might be employed to help restore that trust.

This article discusses findings from the first two phases of this project: (1) the survey research we conducted on the public's attitudes toward the justice system, and (2) a series of focus groups and interviews where we explored the experiences, emotions and reasons behind the public's beliefs. We also analyze the systemic and cultural causes of this decaying trust, and we recommend reforms and practices to consider in order to restore public confidence.

This second phase focus groups were mainly conducted in the first quarter of 2024, and the report was published in September of this year.

Survey Findings

In the first phase, we conducted a national survey to measure the public's trust and confidence in four key institutions in our justice system: (1) law enforcement, (2) the court system, (3) the corrections system and (4) Congress.

This polling of more than 1,000 respondents from across the country confirmed the significant drop in public trust and also provided a more detailed picture of respondents' opinions about law enforcement, civil and criminal courts, the Supreme Court, the corrections system, and Congress.

Some key findings from our 2023 report include:

• Over 40% of the public feels that the justice system does not serve them as citizens.
  
  
• Around 40% distrust both plaintiff and defense lawyers, the U.S. Supreme Court, and the court system itself.
  
  
• Around 50% think judges are somewhat or completely biased when making decisions on cases.
  
  
• Nearly 50% believe that the Supreme Court makes rulings in accordance with their personal and political beliefs, as opposed to the U.S. Constitution and established law.
  
  
• Nearly 65% feel that Supreme Court justices are somewhat or completely biased in their decision-making.

Focus Group Insights

Building on the survey, we conducted online focus groups with 85 respondents across the country in a series of two- to three-hour sessions to delve deeper into the public's experiences, expectations and emotions behind these beliefs.

Because we were curious whether different demographic groups would have varying opinions of the justice system, and because we saw some statistical differences in our polling, we conducted the research with:

• Groups of mixed demographics;
• Groups of Black, Latino and white respondents;
• A liberal group and a conservative group;
• Groups of prior jurors; and
• Groups of lawyers.
  

We also conducted interviews with judges.

Overall, our groups of participants did not feel like the justice system served them as citizens. We heard a strong sense of disempowerment and lack of agency as it relates to their participation in the system. Many felt the justice system was something imposed on them, done to them or something to be avoided at all costs. In particular, they felt that justice was not blind or equitable.

As one focus group respondent noted, "I think they don't listen. The system is just made for them. It's not made for us at all."   

Even though there were some statistical differences among different demographic groups in the survey, the various focus groups were quite similar in their critiques of the system and in their proposed solutions, including the following:

• Racial bias: Participants cited racial biases among law enforcement and in the courts, many reporting personal experiences.
  
  
• Problems with law enforcement: Many participants perceived the police as having a militarized culture with little accountability; not being trained to identify the public's needs, such as domestic or mental health issues; and prioritizing crime prevention over serving their communities.
  
  
• Economic influence on the quality of justice: Participants felt that the justice system favors those with resources. They noted that poor criminal defendants — unable to afford fines, bail or legal representation — often plead guilty, leading to job loss, difficulty finding employment, additional penalties or resorting to crime for survival.
  
  
• Lack of education about the justice system: Participants generally had a poor understanding of how the justice system operates; its principles, goals and limitations; and their rights as citizens within it.
  
  
• Lack of access to the justice system: Many participants expressed frustration with accessing and navigating necessary court services, such as the adjudication of family law issues.
  
  
• Problems with courts and judges: Participants were critical of perceived political biases of the Supreme Court justices and the perception that courts are generally expanding their role into dictating personal, moral and medical decisions for individuals.
  
  
• Problems with our corrections system: Participants were aware of wrongful convictions and were critical of the ethics of prisoner labor and privatized prisons.

One focus group participant stated, "I don't use the phrase 'justice system.' I don't think we have one. I think we have a 'legal system.' I think the outcomes are entirely based on socioeconomic status and race, and I think that the outcomes don't serve anybody well."

Systemic and Cultural Causes

Analysis of the focus group discussions suggests that the mistrust in the justice system largely stems from personal negative experiences, as well as systemic, cultural and media-related issues.

Media Influence and Negative News Bias

Our respondents thought that media coverage of the courts often focused on negative and sensational stories. Rather than educate the public about the system, they felt this coverage exacerbates misconceptions and foments distrust of the justice system.

Culture of Opinion

Rather than have reasoned discussion and respectful debate about differences, the public is encouraged, on personally selected news sites and social media, to have strong opinions. And the algorithms in their feeds are designed to reinforce their previously held beliefs. Strong and repeatedly reinforced opinions discourage open-mindedness to new ideas.

The media often blurs the lines between news, analysis and commentary, and facts can become harder to distinguish from opinion.

The retired judges we interviewed also believed that jurists were infusing more of their personal beliefs into their judicial decisions.

Culture of Conflict

Like war, politics and sports, court cases are also characterized by the media and the legal profession as adversarial contests with winners and losers, emphasizing victory over resolution.

Politics of Fear

Propaganda, disinformation and heightened emotional language creates fear, division and cynicism, even in areas where the public has strong agreement.

Resentment of Authority

The public rarely hears anything positive about leaders in politics, government, science, business, medicine or education, which can translate into a resentment of authority and a loss of respect for the rule of law.

Justice Equated to Case Outcome, Not Fairness in the Process

When the public hears about a verdict in a high-profile trial or a Supreme Court ruling, they may think of the whole system as fair or unfair, just or unjust, depending on whether they agree with the outcome.

This is in contrast to only disagreeing with the outcome, while still respecting the process and system.

Systemic Inflexibility and Fatalism

Policing practices, lawyer training, prosecutions and jury trials are conducted similar to the way they have been for decades. Despite the increased media coverage of issues with the justice system, very little visible change to the system has occurred in the eyes of the public.

Proposed Reforms

In response to these findings, we outline a series of reforms that participants suggested, in addition to existing efforts, to improve their trust in the system, as well as practices that might address their concerns.

Policing Reforms

Our respondents believed that community policing; regular public oversight; and enhanced training focusing on bias, conflict deescalation to reduce use of force, and mental health would improve their confidence in law enforcement.

Jury Trial Reforms

Our respondents thought that paying jurors a living wage for their jury service, increasing panel diversity through outreach in underserved communities, enhancing education on jury service, allowing online questionnaires and remote selection practices, permitting jurors to ask questions during trials, and focusing on improving juror comprehension of cases and legal instructions would improve jury service.

Criminal Justice Reforms

Respondents believed that removing quotas and political incentives in prosecutions; increasing funding for public defenders; reforming plea-bargaining practices; reforming cash bail; ending harsher sentencing for defendants who choose trial over plea deals; allowing for more judicial discretion and creativity in sentencing; and supporting restorative justice initiatives would give them more confidence in the criminal justice system.

Prison Reforms

Respondents thought that eliminating private prisons and unfair prison labor practices, focusing on rehabilitation over punishment like in Northern European corrections models, and implementing diversion programs for nonviolent offenders to promote rehabilitation and reduce recidivism would decrease financial incentives for high incarceration rates.

Judicial and Court Reforms

Respondents thought judicial training programs, public courthouse tours, courthouse staff training to assist citizens navigating the system, online access to court services, eliminating judicial lifetime appointments, implementing a judicial review process, and livestreaming Supreme Court oral arguments would help them understand the court system, create more transparency in the judicial process, and give them greater confidence in the impartiality and fairness of the system.

Transparency and Education

Respondents felt that creating tutorials on the justice system, implementing assistance programs for unrepresented citizens, and emphasizing justice system education in schools would help the public better understand the system.

Accurate Media Representation

Respondents believed that training for the media on justice system processes, more balanced and objective coverage on high-profile trials, and regular town hall forums on news channels to discuss justice system issues with the public and legal professionals would help the public better appreciate the complexities and nuances of the system.

Community Involvement

Respondents thought that regularly facilitated community meetings with members of law enforcement, lawyers, judges and local representatives to listen to community concerns, answer questions, and field suggestions on how the justice system could better serve their needs would make them feel that they had more of a voice in the system.

"More access, more availability, and more input in how things are going to transpire is a good thing," said one of the participants.

Final Thoughts

Many of these suggested reforms may seem overly ambitious or even unattainable. But this change is already occurring with numerous organizations that are conducting research, training and programs in the areas mentioned.[6] And even small changes can make big differences in the lives of those who interact with the system.

While those in the legal profession may be more discerning and trained to evaluate statements for factual accuracy, the general public increasingly relies on social media to form opinions about our government institutions.[7]

As there has been greater propaganda campaigns flooding social media, disinformation filters into mainstream news sources, as well.[8] One of the main goals of propaganda is to sow distrust in all information and in institutions.[9]

We have recently been through a divisive political election. A study published in July from the Annenberg Public Policy Center noted the decline in confidence in all government institutions. The authors stated, "[T]he same polarization that has eroded support for the judiciary has also reduced belief in democratic norms."[10]

Our justice system and the rule of law is the foundation of our democracy. The continued erosion of public confidence in our system undermines that foundation. Brick by brick, we need to start to rebuild the public's trust.

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Richard Gabriel is the president at Decision Analysis Inc. He is the author of "Acquittal" and co-author of "Jury Selection: Strategies and Science." He is the founder of the Trust in Justice Project.

Michelle Rey LaRocca is a senior consultant at Decision Analysis and the co-author of the Trust in Justice Project's latest report. She also is the current vice president of the American Society of Trial Consultants.

"Perspectives" is a regular feature written by guest authors on access to justice issues. To pitch article ideas, email expertanalysis@law360.com.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of their employer, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

[1] Brian L. Saad, Historically Low Faith in U.S. Institutions Continues, Gallup (July 23, 2023), https://news.gallup.com/poll/508169/historically-low-faith-institutions-continues.aspx (last visited July 17, 2024); Public Trust in Government: 1958-2024, Pew Research Center (June 24, 2024), https://www.pewresearch.org/politics/2024/06/24/public-trust-in-government-1958-2024/ (last visited July 18, 2024).

[2] Court Statistics Project Releases Trial Court Caseload Trends, Nat'l Ctr. for State Cts. (Mar. 6, 2024), https://www.ncsc.org/newsroom/at-the-center/2024/court-statistics-project-releases-trial-court-caseload-trends; Judicial Caseload Indicators - Federal Judicial Caseload Statistics 2022, United States Courts, https://www.uscourts.gov/judicial-caseload-indicators-federal-judicial-caseload-statistics-2022.

[3] Urban Institute, Criminal Justice Expenditures: Police, Corrections, and Courts, Project, State and Local Expenditures (Apr. 26, 2024), https://www.urban.org/policy-centers/cross-center-initiatives/state-and-local-finance-initiative/state-and-local-backgrounders/criminal-justice-police-corrections-courts-expenditures (last visited July 19, 2024).

[4] Id.; see also Tom R. Tyler, Why People Obey the Law, Princeton University Press (2006), https://press.princeton.edu/books/paperback/9780691126739/why-people-obey-the-law.

[5] Shawn Patterson Jr., Matt Levendusky, Ken Winneg & Kathleen Hall Jamieson, The Withering of Public Confidence in the Courts, 108 Judicature 22 (2024) (Vol. 108, No. 1), https://judicature.duke.edu/wp-content/uploads/2024/07/ANNENBERG_Vol108No1_9.11.pdf.

[6] E.g., the National Center for State Courts, the Institute for the Advancement of the American Legal System, Impact Justice, the National Institute for Criminal Justice Reform, and the Georgia Justice Project.

[7] Social Media and News Fact Sheet, Pew Rsch. Ctr. (Nov. 15, 2023), https://www.pewresearch.org/journalism/fact- sh eet/so cial-media-and-new s-fact-sh eet/#:~: text=o n%2 0so cial% 20media- ,Who%20consumes%20news%20on%20each%20social%20media%20site,%25)%20or%20Reddit%20(8%25).

[8] Brandy Zadrozny, Disinformation Poses an Unprecedented Threat in 2024 — and the U.S. Is Less Ready Than Ever, NBC News (Jan. 18, 2024), https://www.nbcnews.com/tech/misinformation/disinformation-unprecedented-threat-2024-election-rcna134290; Kaitlin Peach, Joseph Ripberger, Kuhika Gupta, Andrew Fox, Hank Jenkins-Smith & Carol Silva, Seeing Lies and Laying Blame: Partisanship and U.S. Public Perceptions About Disinformation, Harvard Kennedy Sch. Misinformation Rev. (Institute for Public Policy Research and Analysis, Univ. of Okla., USA), https://misinforeview.hks.harvard.edu/article/seeing-lies-and-laying-blame-partisanship-and-u-s-public-perceptions-about-disinformation/.

[9] Brandy Zadrozny, Disinformation Poses an Unprecedented Threat in 2024 — and the U.S. Is Less Ready Than Ever, NBC News (Jan. 18, 2024), https://www.nbcnews.com/tech/misinformation/disinformation-unprecedented-threat-2024-election-rcna134290.

[10] Shawn Patterson Jr., Matt Levendusky, Ken Winneg & Kathleen Hall Jamieson, The Withering of Public Confidence in the Courts, 108 Judicature 22 (2024) (Vol. 108, No. 1), https://judicature.duke.edu/articles/the-withering-of-public-confidence-in-the-courts/.