MonthDecember 2014

The Public Defender Crisis, Part II: Possible Solutions

As I outlined in my last Blog Post of December 3rd, 2014, 50 years after the Gideon decision mandated representation for defendants in criminal cases, Public Defenders across the United States are as underfunded and overwhelmed as the initial wave of PDs represented by the cast of characters in my novel, Gideon’s Children. And as I also  indicated, the following Post would be devoted to possible solutions.

Okay, to begin, let’s understand that complex problems defy simple solutions, and that  while the ideal of absolute perfection is a worthy goal indeed, significant steps in that direction that can be accomplished and which enhance the performance of our Criminal Justice System are no less valuable.

Step One is to address “underfunded.” There are simply not enough Public Defenders to handle the tremendous volume of cases, so even in an era of tight budgets, legislative bodies need to adjust priorities and provide the funding necessary to adequately staff Public Defender Offices. As detailed in my last Post, in New York, Governor Cuomo has seen this and is pushing his legislature to provide the required funds.

So, to those of you reading this Post, I urge you to take a minute and email your federal and state representatives and express to them your desire to see these funds provided now! Remind them of that the Rule of Law is based on the respect of our citizenry, and that if minorities and the poor can no longer believe that they can receive proper representation when charged with a crime, then a large hole is torn in the essential element of respect that founds the Rule, and violence such as experienced in Ferguson will reoccur on a growing scale.

Step Two is for the enormous number of the minor cases that clog the criminal courts to be reduced by legislation, and the exercise of executive, judicial, and prosecutorial discretion.

Numerous states have legalized the use of marijuana, which eliminates untold numbers of simple possession cases. In other jurisdictions that have not legalized marijuana such as New York, in New York City, Mayor DeBlasio unveiled a plan whereby people found with a small amount will typically be cited for a violation instead of being arrested and charged with a crime.

Actions such as these not only help unclog crowded court calendars, thus freeing Public Defenders to work on cases involving serious crime, but they also allow the police to focus their efforts likewise.

Further, as illustrated in Gideon’s Children, Prosecutorial Offices, particularly at the City and County level, often file minor cases such as Drunk In Public (not driving under the influence). The Police, particularly in minority areas, are prone to arresting on this charge because it allows them to then conduct a search incidental to arrest in hopes of discovering drugs. And District and City Attorneys are pleased to file this misdemeanor, because they are most often plea-bargained, i.e., the defendant pleads guilty and receives a sentence for the amount of time he or she has already been incarcerated by the time of trial, and is given credit for time served and immediately released. The heads of District and City Attorney Offices are elected officials, and it is helpful come election time if they can point to the number of successful prosecutions that their administrations have produced.

What should occur is that if no evidence of a more serious crime is recovered at the time of arrest, the police should simply release the arrestee after he or she has dried out during the overnight stay in jail, and if the police persist in pressing charges, the District and City Attorneys should not file a formal complaint. In that the obsession with building  statistics is present, however, judges then need to pressure prosecutors to drop the charges at the time of arraignment, their argument from a position of power being that there is an array of more serious cases that need attention. And if cooperation is not forthcoming, then the judges need to dismiss these cases on their own motion.

Step Three is to cut down on the rate of recidivism, which is far, far too high. Numerous programs are being introduced into our prison systems to provide convicts with vocational skills and even college degrees so that upon release they can find employment and rebuild their lives. In addition, working toward the same goal, many states have programs to curb bias against ex-cons.

These programs must be enlarged. If society does not want repeat offenders, employment opportunities commensurate with their education and skill levels must be available, or a return to crime appears as the only other option. In a future Blog Post I will detail these programs, as they are so important as to deserve a separate Post.

Also requiring a separate Post is judicial bias against Public Defenders, and I will address this extremely difficult problem in my next offering.

As always, thanks for listening. And let’s chat again soon.

The Public Defender Crisis

As I indicated in my opening Blog Post, subsequent additions would focus on separate parts of the Criminal Justice System. As the first Post also emphasized, our democratic society is based on the Rule of Law, and as the sad situation in Ferguson demonstrates, when trust in that basic concept of justice breaks down, order is threatened.

Even sadder is the fact that while Ferguson clearly has tragic implications, this incident is far outweighed by the current crisis in the Public Defender System, because Ferguson is a single event, while every single day across the width and breadth of America Public Defenders struggle to provide representation and insure fairness in the operation of our Criminal Justice System in thousands of cases, with the potential for erosion of the respect for law and order obviously magnified.

As my novel, Gideon’s Children, illustrates, the first wave of Public Defenders created by the 1963 Gideon decision’s mandate for representation were underfunded and frequently overwhelmed. What’s truly frightening is that today, 50 years after the landmark Gideon decision, working conditions are as bad or even worse. As the brilliant commentator Leonard Pitts, Jr. pointed out in his syndicated newspaper column of March 17, 2013, a single Public Defender in many jurisdictions “can be expected to try 400, 500, 600 cases a year,” a burden that makes full investigation and proper representation impossible (http://articles.baltimoresun.com/2013-03-17/news/bal-gideons-promise-still-unfulfilled-20130315_1_clarence-earl-gideon-attorney-criminal-court). Further substantiating this dire situation, on February 19th, 2014, The New York Times reported “that defender agencies in Missouri and Miami have won, in state Supreme Courts, the right to refuse cases they cannot responsibly handle” (http://www.nytimes.com/2014/02/19/us/public-defenders-turn-to-lawmakers-to-try-to-ease-caseloads.html?_r=0 ), and on October 21st, 2014, the same source reported that in New York, Governor Cuomo “has agreed to settle a class-action lawsuit that accused New York State of failing to provide adequate legal defense for the poor in several counties, committing the state to paying for bigger and better public defender offices” (http://www.nytimes.com/2014/10/22/nyregion/in-new-york-cuomo-pledges-more-aid-for-indigents-in-court.html).

Now, you might ask, is the Public Defender Crisis limited to large and heavily populated cities and states? And the answer is, no, it is not. Similar conditions to those detailed above exist nationwide, and like the violence connected to Ferguson, threaten to tear far larger holes in the fabric of our society unless corrected.

In my next Blog Post I will set forth a multi-tiered program for alleviating the serious problem outlined today. In closing, however, I want to stress the fact that while it is uncomfortable for all of us Americans to address, in the richest society in world history, we nevertheless have a significant number of our fellow citizens living at or below the poverty line. And if we expect our economically stressed class of citizens to maintain respect for the Rule of Law, and act accordingly, then we must insure that they can honestly believe in the ability of our criminal justice system to perform fairly for all citizens. And, I would add for your consideration, that it was never more necessary for this essential value to be preserved and strengthened than during an era of ever growing economic inequality.

As always, thanks for listening. Please feel free to respond. And let’s chat again soon.