Today marks the 50th anniversary of a Supreme Court ruling that changed the face of American justice. On March 18, 1963, the Court ruled, in Gideon v. Wainright, that every American was constitutionally entitled to a lawyer in a criminal trial, regardless of his or her ability to pay. Nevertheless, underfunded public defense systems and questionable practices in many states still throw up obstacles to fulfilling the promise of Gideon for thousands of poor Americans every year.
Baltimore journalist Karen Houppert began following the issue when she was writing about the high incarceration rate of young African American males in Washington DC. The result was a probing, and troubling, examination of Gideon 50 years later in Chasing Gideon, released by New Press this week. In a conversation with The Crime Report's Managing Editor, Cara Tabachnick, Houppert discussed the often opaque world of public defenders, bail bondsmen and what some attorneys call “due process theater.”
The Crime Report: Tell us about your journey reporting this book. Were you shocked by the system of public of defense in America?
Karen Houppert: I've been reporting on criminal justice issues for several years and circled around the edges of the public defense problem, while writing about the high incarceration rate, drug courts, probation and parole. And you can't really do that without noticing there is a terrible crisis in the courts and that the system is completely malfunctioning—mostly due to overload.
People who have been accused of a crime are not getting adequate defense. The public defense system is overburdened and overwhelmed by the sheer volume of defendants who pass through the courtroom doors. Citizens who may not even be guilty of a crime sit in jail for months, even years, before getting access to an attorney. Poor people who do get assigned an attorney may get such poor representation that a case which should have been easily dismissed ends up [with an] outrageous sentence. In too many places, the system is in chaos.
The breakdown of the court system ties into everything else that is not working in the criminal justice system: wrong drugs, mandatory sentencing, etc. And anyone I talked to who worked in this field was aware that there was a huge problem. Judges, prosecutors, public defenders, cops, clerks—all would agree that there's a problem in the field. But it wasn't getting out to the public at all. And there wasn't any kind of political will behind reform efforts.
TCR: Why should the nation care about public defense?
KH: As Americans, I think we have an inherent desire for fairness. Our country is founded on the idea that things ought to be fair. Our whole political system is designed around [that]. That's kind of an abstract idea to get across to people. But it's not abstract. It's real. These are real people's lives and these things have lasting consequences for people. One woman I spoke to, a law professor in New Orleans, talked about what happens when the system breaks down on every level. When public defenders aren't serving as kind of a check and balance against the unlimited power of prosecutors and cops, then bad arrests and wrong convictions are being made. That means we're locking up the wrong people, so then it becomes an issue of public safety as well. If you're locking up the wrong people, then the person who actually committed the crime is going free.
TCR: Your book focused on cases in Washington State, New Orleans and Georgia. Why?
KH: We have a tendency sometimes to think about the South as the place where things go wrong. In some places, like New Orleans, for example, that is true. And so I thought it was important to document that. But I also wanted to look at states where they were really trying to make improvement.
Washington State is one where the reform efforts have been moving along. They have been able to make some great strides in terms of particularly caseloads. One of the cases I wrote about was a young boy who was charged with child molestation. At the time, his public defender was working on 440 cases, way above the recommended 150 by the American Bar Association. The boy was found guilty and was required to register as a sex offender for his entire life. His parents were outraged and decided to fight, and the boy eventually did get to the Washington State Supreme Court. The ruling changed the caseload limits for public defenders: they are now mandated to sign forms before each case that they're not exceeding their caseload limits. In the other states, it's much more challenging. For example Louisiana has really struggled. I focus on New Orleans, but what is happening in the city is true statewide. Clearly there were major problems. On the heels of Katrina there was an opportunity for reform; [and] that's been happening. But slowly, slowly.
TCR: One public defender you interviewed said that most of the time the court process was “due process theater.” What did she mean?
KH: Public defenders are so overloaded. If a public defender is carrying 500 cases, [he or she] can't possibly investigate all 500 thoroughly, particularly if the person accused is sitting there in jail and the public defender doesn't have adequate time to investigate their case. The deck is kind of stacked in favor of prosecutors. Generally their case loads are lower. They're better staffed. (Prosecutors know) that a person who has already been sitting for a long time in jail is desperate to get out and will accept a plea. Public defenders are often in the position of encouraging their client to accept it and not push for a trial. Everything becomes about efficiency and processing things quickly and clearing dockets, instead of actually trying to find out the truth, what really happened.
TCR: What was the most shocking case that you saw?
KH: One of the most egregious was a guy I interviewed after there were layoffs at the public defender's office in New Orleans. There were all these people who were languishing in jail. Hundreds of them, waiting for a lawyer to be assigned to their case. They just simply didn't have enough lawyers to assign. One guy I spoke to had been there over a year on a burglary charge without seeing an attorney, just sitting in jail, where he's back reading law books, trying to educate himself, trying to file the papers he needs. Another man had been in jail for about two months for possession of a nickel-bag of marijuana. He was actually willing to plead guilty. He had the weed on him; he was willing to acknowledge that. But he couldn't go into court and plead guilty because he had no attorney. Bail, by the time it was reduced to the percentage he had to pay, was $180. And he didn't have it. And his mom was pissed and annoyed at him, and didn't want to fork over the bail. So basically, he was sitting in jail for two months— willing to plead guilty. But he couldn't even do that. I found those breakdowns in the system shocking.
TCR: Would you say that was an aberration?
KH: Oh no. There were hundreds of them, hundreds. They were trying to pull in the private bar to help take some of these cases. Attorneys volunteered to do pro-bono work. But these attorneys were tax attorneys or real estate lawyers, who were suddenly in there with these criminal cases. They had no idea what to do.
TCR: New York just made pro bono service a requirement to enter the bar in an effort to provide some relief for the public defense system. Is partnering with the private bar a bad idea?
KH: No. I think that actually could be a really good solution. As long as they're paired with an attorney that has experience in criminal practice. Ideally, it would be an area in which they're intending practice themselves.
TCR: In your book you describe defendants who sit in jail for months or years. What does that do their lives?
KH: Someone who's languishing in jail with or without an attorney at their first appearance faces losing a job or an apartment, because he can't pay rent; or losing custody of her kids because she can't pay child support. Even if that person is ultimately found innocent, the consequences are already quite dire.
TCR: What reforms do you think are necessary?
KH: The American Bar Association lists ten things that need to happen to ease the burden on public defense—those are the best guidelines. But, I think the most important one is to address the caseloads. The recommended caseload is about 150 for felonies. Most public defenders have double or triple that number. In the short term, I think that's achievable. People are going at it in different ways. In New York State right now there is a class action suit. Addressing the problem through lawsuits that lead to mandated changes is one solution. The other way is trying to fund [improved public defense]. There's been some talk that the federal government will give states money but only if they adhere to these ten ABA standards. For the last 10 years, what's been happening is a gathering of data. There have been blue ribbon commissions, panels, studies, and surveys to show we have a problem here. We know there's a problem. It's now a matter of mustering the political will to fix it. And that's a challenge.
TCR: So what do you think the future holds for the public defense system?
KH: I'm optimistic, actually, because I feel that all the groundwork has been laid. And it's not just public defenders themselves, but prosecutors, acknowledging that there's a problem. It messes with [prosecutors'] game too when public defenders are so overworked. Judges are aware of it. Everybody's aware of it except the public. There has to be a shift in the public understanding. The law and order rhetoric of politicians will shift when the public exerts pressure and says “wait a minute; let's not just go with this 'lock'em up' mentality.” If the cultural conversation changes, politicians will be able to make meaningful change. But I'm an optimist.
Cara Tabachnick is managing editor of The Crime Report. She welcomes comments from readers.