Fifty years ago, an eloquent drifter from Florida changed the American justice system. Clarence Earl Gideon, accused of breaking into a pool hall, was tried without a lawyer in Bay County, Florida, in 1961. Convicted after representing himself, he petitioned the Supreme Court for a new hearing and ultimately won not just his own freedom but a new right for all criminal defendants: the right to counsel. It’s thanks to Gideon and his case that if a defendant cannot afford a lawyer, one will be provided.
More than 12 million people were arrested in America in 2011. Most of them were charged with a crime and many were poor, qualifying for a public defender. The American Council of Chief Defenders suggests that each public defender handle no more than 400 misdemeanors or 150 felonies per year ; many carry caseloads two to three times those guidelines, and some much more than that. There are simply far, far more poor people needing lawyers than there are public lawyers to represent them. Despite the Supreme Court’s ruling in Gideon v. Wainwright, adequate counsel for poor Americans is far from guaranteed.
As in all budgetary matters, though, there are two sides to the equation. If the problem is an imbalance between the supply of lawyers and the demand for their services, one approach is to increase the number of attorneys. Another, of course, is to reduce the number of criminals.
“I think that has to be part of the answer,” said David Carroll, executive director of the Sixth Amendment Center. “We can never spend our way out of this problem.”
America will not have to become a nation of angels. Legislatures and advocates are exploring how to shift some acts from criminal offenses to ticketable ones. Organizers are teaming up with public defenders, bringing people power where money is short. And lawyers are trying to address the issues that led people into the justice system in the first place. None of that is without cost, but with states spending more than $50 billion a year on corrections, it may be an investment worth making.
MICHIGAN’S POOR RECORD — AND WHAT IS BEING DONE TO IMPROVE IT
Detroit’s 36th District Court handles about half a million misdemeanor cases a year. Most of those defendants will be represented by a publicly funded attorney, and most will exchange few words with the person who is officially their lawyer. In Wayne County, which encompasses Detroit, there are both traditional public defenders whose full-time job is representing the indigent, and appointed counsel, lawyers named by the judge to represent all needy defendants in court that week.
Traffic cases make up a lot of the court docket on any given day. People drive everywhere in the Motor City, and they drive without licenses, without insurance, and without the ability to pass a breath test. The judge will call the names of everyone with a drunk driving charge, say, and they all line up in front of the dais. The court-appointed counsel will explain to the group that they’re all going to pay a fine and may have to do community service. There’s no apparent opportunity to have an individual conversation, to contest the charge or explain the individual circumstances of the arrest. There’s no clear warning that these people are taking a plea deal, no hint that they are pleading guilty to a misdemeanor charge that will stay on their record forever.
The courtrooms at the 36th District are, technically, fulfilling their constitutional mandate to provide counsel to people who can’t afford it. That the representation does not typically involve any meaningful interaction between defendant and attorney is standard in Michigan and in many states. The Gideon decision didn’t spell out how states should go about providing indigent defense. Michigan wound up with a hodgepodge of systems: some public defender offices, some appointed counsel, and some flat-fee contracts. In a flat-fee contract model, attorneys bid to represent all comers in a given courthouse for the year, and the lowest bid wins. The system incentivizes lawyers to spend as little time with each defendant as possible; the more clients they have, the less they earn per case. The appointed counsel model also has its critics, who say that lawyers may be quick to push a plea or may hesitate to request a trial, for fear of angering a busy judge and losing future appointments.
Michigan is one of just seven states that provide almost no state funding for trial-level indigent defense, leaving the counties holding that particular fiscal bag. County income derives mainly from property taxes, and property values in Michigan have been in free fall for years. Per capita spending on indigent defense is not regularly tracked, but in 2012, Michigan spent just $7.38, ranking the state among the lowest in the nation. Simply put, “Michigan fails to provide competent representation to those who cannot afford counsel in its criminal courts,” according to a 2008 report by the National Legal Aid and Defender Association.
The indigent defense system in Michigan is so ill-funded, and so overburdened, that the American Civil Liberties Union of Michigan is suing the state. Actually, it’s currently suing for the right to sue. The case, Duncan v. Granholm, is a class action representing defendants facing felonies in three Michigan counties, where, according to the suit, the state has failed to meet the requirements of Gideon. It was filed in 2007, and for the past six years, the state has tried to stop the case from proceeding. In April, the ACLU won yet another decision from the state court of appeals, allowing the case to move forward.
“Unfortunately, it’s likely they’re going to seek review in the Michigan Supreme Court again,” said Michael Steinberg, legal director of the ACLU of Michigan. “All we want to do is prove what everybody knows, which is that the criminal defense system is broken for poor people in Michigan. And we haven’t been able to yet.”
As the suit has wound its way through the courts, the state government has been assessing the problem. Gov. Rick Snyder named an Indigent Defense Advisory Commission in 2011, and the group released a set of recommendations last summer. Legislation to improve the system was introduced in April 2013 and was signed into law in July.* The changes won’t go into effect immediately, though. The law establishes a permanent commission, which will create minimum standards for public defense, including allowing defenders to control their caseloads. The law also provides funds to counties that aren’t able to meet the standards alone. The courts won’t see the impact for another two years, estimates Marcela Westrate of the Michigan Campaign for Justice, a coalition that backed the bill.
The law is a big step, but implementation of the new standards is contingent “upon the appropriation of sufficient funds,” according to the bill. Michigan’s economy is climbing out of the basement, but budgets are still lean.
Detroit has its own financial problems, distinct from those of the state. And the 36th District Court, being located in and partly funded by the city of Detroit, is not insulated from the city’s fiscal woes. Even before Detroit filed for bankruptcy on July 18, the court was found to be significantly over budget for last fiscal year, spending close to $36 million when the city council allocated $31 million. A report commissioned by the state found that the court was rife with problems: overstaffed, inefficient, reliant on outdated technology, and hostile to the City Council. **
While criticizing the leadership of the court, the report also acknowledged that the municipal and regional context play an important role.
“It is our contention that the current economic crisis confronting the City is the new ‘norm’ and not merely an aberration in the history of the City to ride out until times are better,” the report’s authors wrote. “The erosion of the City’s tax base, loss of its population, and increase in blight and dwelling abandonment has been occurring over several decades. Without extraordinary interventions, it likely will continue into the future.”
Within days of the report’s release in May, the state appointed Judge Michael Talbot as special judicial administrator to get things under control at the 36th District. Less than a month later, the city filed for bankruptcy. The court and its users are feeling the impact. More than 100 staff members have been laid off. Kenneth King was removed from his post as chief judge, although he will still sit on the bench there. The union representing the remaining court staff rejected a one-year contract offer from Talbot which would have cut pay and reduced benefits. The labor conflict may come to a head soon, with a deadline to resolve the contract set for July 31st.
While more money would help the defense system, fewer criminals would, too.
Reducing the number of criminals requires not a shift in behavior, but a shift in how people think about crime, punishment and redemption. That reassessment may now be under way, in Michigan and across the country. There is growing recognition that the current system of impossible caseloads, over-criminalized rule books and overflowing prisons is incredibly expensive, unsustainable – and avoidable .
BIPARTISAN BACKING FOR DECRIMINALIZATION
“There are 11 felonies related to oyster harvesting in Texas,” said Vikrant Reddy, a policy analyst at the Texas Public Policy Foundation and the coordinator of the Right on Crime Coalition. Laws like those are an example of what Reddy calls the “over-criminalization scourge,” which he says is eating public resources without creating any meaningful benefit for society. It’s fair to guess that the people of Texas would be no worse off if oyster-related crimes yielded a fine, rather than a criminal charge; meanwhile, the state coffers would be doubly improved, with fine revenue coming in, and defender expenses not going out.
Right on Crime is a conservative group. The signatories on its statement of principles include Newt Gingrich and Grover Norquist. The group is trying to get the conservative movement back to “first principles,” Reddy said. “Ultimately, the question underlying every tax dollar that is spent on fighting crime ought to be: Is this making the public safer?”
Thomas Giovanni, counsel to the Justice Program at the left-leaning Brennan Center for Justice at New York University School of Law, posed almost the same question, verbatim. “Are we spending the money that we’re spending already efficiently, and is it increasing public safety? On the low-level crimes, the answer is probably no,” he said.
Groups on the right and left, including Right on Crime and the Brennan Center, are urging states to reassess their criminal statutes and look at areas where they are penalizing conduct that doesn’t harm the public. The House Judiciary Committee is looking, too, convening a bipartisan task force on over-criminalization at the federal level. In 2008, almost 4,500 offenses carried criminal penalties under federal law; the precise current number is unknown. Also unknown is the number of federal regulations enforceable with a criminal charge; estimates range from 10,000 to 300,000. Any poor person charged with one of those innumerable offenses is eligible for a public defender.
Moving certain nonviolent crimes out of the courts would allow defenders to focus their limited resources on more serious charges, where penalties are high and public well-being is at stake. “Succeeding in reversing over-criminalization would have a real, salutary effect on the indigent defense system,” Reddy said.
Whatever the number of crimes on the books, more than just oyster harvesting is being punished too harshly, Giovanni argues.
“Our drug policies penalize essentially addiction issues in a lot of cases, rather than high-level drug traffickers,” Giovanni said. In 2011, there were 1.5 million drug arrests in America, according to the FBI. Some 80 percent of those were for possession, not distribution.
Drug possession for personal use is one area where decriminalization is gaining ground. In California, marijuana possession used to be a misdemeanor. In 2010, the state legislature made possession of less than an ounce of marijuana an infraction punishable by a fine. Court backlogs were cited as a prime motivator for the change, said Theshia Naidoo, senior staff attorney at the Drug Policy Alliance. Sixteen states have some form of decriminalization for simple marijuana possession, Naidoo said.
For the foreseeable future, though, most crimes, from oyster harvesting felonies in Texas to turnstile-jumping in New York, will continue to move through the courts. And each criminal charge, however small, draws on the resources of public defenders.
ENGAGED DEFENSE SAVES MONEY, AND TIME
At one Bronx office, the public defenders see each new client more as an opportunity than a burden. Every new case is a chance to make sure the defenders never need to represent that person again.
The Bronx Defenders work from a gleaming new office building near Yankee Stadium, right up the street from the Bronx County courthouse. The waiting room has colorful sofas and chairs, children’s books and coffee. It’s genuinely inviting, an environment that suggests whatever problem brought you there might be less scary than you thought.
When the project started in 1997, said Robin Steinberg, the group’s executive director, the first step was listening. The staff met with members of the group’s Bronx community, trying to understand their problems and their needs.
“We really became aware of the depth and the breadth of the interconnectedness of issues,” Steinberg said. “Even a tiny criminal justice involvement could cascade you and your family into complete disarray.” A teenager arrested for marijuana possession can trigger an eviction for the whole family. An arrest for jumping a turnstile can lead to job loss or even deportation.
Defending the criminal charge alone might help someone avoid prison, or reduce a prison sentence, but it doesn’t account for the ripple effects. Clients at the Bronx Defenders get assigned not just an attorney but a team, a range of people who help them address both the immediate case and any other needs they might have, legal or otherwise. The strategy is called holistic defense.
In providing not just representation in court but advocacy and links to social services, the Bronx Defenders “provide support for the underlying issues that are driving people into the system,” Steinberg said, be they poverty, addiction or mental illness. Helping someone hold on to a job, an apartment or public benefits can help that person maintain stability. A plea deal can bar someone from employment and housing options, which can, in turn, push people into new criminal acts.
Their approach is gaining fans and traction, from fellow defenders and the federal government. The Department of Justice gave the Bronx Defenders $250,000 in 2009 to spread the group’s model across the country and has kept up the support. So far, the Bronx Defenders have trained 12 groups. One of them is the East Bay Community Law Center in Berkeley, Calif., whose Youth Defender project is sort of a mini-Bronx Defenders in reverse, jokes Kate Weisburd, a staff attorney with the project. The center’s core focus is on civil legal needs, and the youth project is the only division that offers representation in criminal cases. Like their Bronx-based mentors, the Youth Defenders look at the whole person, not just the alleged crime.
“A young person’s delinquency case is never just about delinquency. It just isn’t. It’s always just one piece of what’s going on,” Weisburd said. The teen may have unstable housing, mental health needs or parents who aren’t getting the public benefits to which they’re entitled.
“Most fundamentally,” Weisburd said, “we know our clients so well.” That’s a huge contrast from typical public defenders, who may meet their client only moments before a hearing. In Alameda County, where Weisburd works, most courtrooms have what’s called horizontal representation: one public defender who serves all comers on a given day. Then another lawyer represents those defendants the next time they find themselves in court. Vertical representation — the model recommended by the American Bar Association — means a client has the same lawyer from arraignment through the end of the process, whatever that might be. That’s how the Youth Defenders work.
“We know our client. We know everything about them, better than anyone else in that courtroom,” Weisburd said “That’s so helpful, because we can really speak to the judge’s concerns.”
The time it takes to develop that relationship, to gain that sense of a client’s life, is among the things money buys. People who hire a private attorney pay by the hour for the chance to develop rapport that allows their lawyer to humanize them to a judge and explain the consequences for their future and their families if they are convicted, get a harsh sentence, or get sent to prison far away for a long time.
Engaged, zealous representation like that of the Bronx Defenders and Youth Defenders is expensive, but so is locking people up. A year in prison in California costs $42,000 per inmate; in New York, more than $60,000. And those figures don’t factor in the less quantifiable toll, adds the Brennan Center’s Giovanni, like “the loss of human potential and the downstream problems that occur.”
While the Bronx Defenders model is spreading, it’s spreading slowly. Most defenders offices don’t have the time or resources to assess the implications of a charge or plea, and the impact on their families.
In San Jose, Calif., a grass-roots group decided that if the public lawyers couldn’t do that work, they’d do it themselves.
The main mission of Silicon Valley De-Bug had been making media and community organizing, on such issues as youth and workers rights. Ever so often, someone affiliated with the group would get arrested and would get a court-appointed lawyer, explained Raj Jayadev, an organizer with De-Bug. “They felt isolated, alone, and unsure about what the system was going to do with them,” he said. “And they also felt outgunned.” When the group’s members were facing criminal charges, they would rally on the street, hold marches and news conferences. But once a case entered the courthouse, “we sat on our hands,” Jayadev said. “We just went with this general presumption of reverence to the court, and that affecting change in the courtroom was really based on lawyers.”
Now, De-Bug takes a different approach. “What we ended up doing was really bringing our community organizing ethic to the court system,” Jayadev said. The Albert Cobarrubias Justice Project, which Jayadev co-founded, works with people facing criminal charges and their families to ensure that the public defense they receive is attentive and engaged. Family members have worked as volunteer investigators, tracking down witnesses and gathering cellphone videos of events. They scour police reports, looking for inconsistencies. They collect testimonials and stories that paint a portrait of the defendant and his family ties. This is the kind of work that can be crucial to a defense but that many defenders are too overwhelmed to do.
Nationally, most criminal charges result in plea deals, which are cheaper and faster than trials for the courts. Hard data is difficult to come by, but researchers estimate that between 90 and 95 percent of both federal and state court cases end in a plea. Defendants are implicitly, sometimes explicitly, pressured to take the deal, threatened with a much harsher sentence if they demand a trial. The project’s organizing work has helped defendants and their attorneys “not just initially jump towards a plea,” Jayadev said. It also means that defendants facing the charges know that they aren’t alone, he added, helping them resist pressure to plead guilty.
The Justice Project is tracking the time saved by its advocacy, the years its members would have served in prison had they been convicted. At one recent meeting, three men were there with their families; they had been facing a combined total of 41 years. Their incarceration would have cost the state of California almost $2 million. In four years of organizing, the project calculates it has saved 1,377 years of incarceration, with a price tag of almost $58 million. In 2011, California spent more than $7 billion to incarcerate an average daily population of almost 170,000 men and women.
Those numbers are too big to ignore. The financial crises in most states are forcing legislatures to reassess what they call a crime and what they process through the court system. “They simply don’t have the money to have the justice system we currently have anymore,” Carroll said. “People are starting to learn that we have to be smart about how we use limited taxpayer resources now.”
“People are starting to see in very real ways that they’re having to trade other core services that they would like” for this criminal justice system, Giovanni agreed. “The tighter the budget gets, the wider the reform effort becomes.”