Most — perhaps almost all — who are arrested, charged, convicted, and sentenced are guilty of a crime. Our criminal laws are sprawling, open-ended codes that punish people for wide swaths of behavior. More often than not, defense work is about triage, about minimizing the harms that come from an almost-guaranteed — and legally sound — conviction.
The core problem with Gideon-focused reform is that mass incarceration is driven by decisions made by police and prosecutors about who to arrest and who to charge, not procedural issues about how the arrest is made or how the trial or plea bargain is conducted. The criminal justice system is a blunt tool, and not everyone who violates the terms of a criminal statute should be arrested, charged, convicted, sentenced.
So while evidence suggests that competent indigent defense makes a difference — what few studies we have suggest that those with better lawyers are less likely to be convicted or serve less prison time — the traditional role of public defenders is individualistic and reactive: They handle the specific cases that the police arrest and the prosecutors charge.
In other words, while improving the often-frightening procedural failings of the criminal process is important work, real reform lies far more in changing the systemic choices made by police and prosecutors. The decisions about where to deploy police, what sort of arrest policies to have, what sort of cases prosecutors get charged vs. dismissed — these are the decisions that really drive mass punishment.
The role of public defenders is thus clear: They’re in the best position to ensure that progressive-sounding prosecutors fulfill their campaign promises. Unlike court watchers, they are present at every step of the process — not just public hearings, some of which might be held in the middle of the night — but the behind-closed-doors plea bargaining processes that resolve about 95 percent of all cases. They see the charges that prosecutors threaten and then withdraw, the factors that seem to shape prosecutors’ decisions about when they drop charges and when they move forward, and so on.
As criminal justice reform becomes more politically tenable, however, there is room for public defender offices to take on a lobbying role as well. They are well-positioned to tell legislators the stories about the costs of excessive and counterproductive harshness, to help put a human face on the costs of punitiveness — and, as lawyers, to suggest how to change specific statutes and rules to minimize those harms. But this too requires funding.
By John Pfaff, from In Justice Today.