Can Prosecutors and Public Defenders Team Up to Produce Fairer Justice?

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Sculptural Group by Daniel Chester French. Photo by Eden, Janine and Jim via Flickr


Kirk Bloodsworth was convicted and sentenced to death for a crime he did not commit.

Charged with sexually assaulting and brutally killing a nine-year old girl, the former U.S. Marine spent nine years in prison, including two on death row, before being exonerated in 1993, as a result of DNA testing

He was the first person to be sentenced to death and then subsequently exonerated. His case led to the Innocence Protection Act of 2004, which in turn established the Kirk Bloodsworth Post-Conviction DNA Testing Program and has helped free hundreds of other wrongfully convicted Americans.

Kirk Bloodsworth

Kirk Bloodsworth. Photo by Loren Santow, courtesy of the Death Penalty Information Center

While his case is nuanced and devastating on numerous levels, two facts in particular deserve further scrutiny: the quality of his defense and the means of the prosecution.

Bloodsworth began his trial after just three meetings with his defense counsel. He was convicted based on the testimony of five purported eyewitnesses, three of whom could not identify him in a line-up, but saw him on TV after the crime was committed.

After initially refusing, the prosecution finally agreed to DNA testing in Bloodsworth’s case.

For all those years, the real murderer and rapist was free.

Sixth Amendment Guarantee

The Sixth Amendment guarantees all people accused of crimes the right to a speedy public trial, an impartial jury, evidence against them, and counsel.

Given these constitutional guarantees, how, then, could Bloodworth’s case proceed as it did?

How could he have met with his public defender a mere three times when his life and liberty were on the line? How was he sentenced to state-sanctioned death based on faulty eyewitness testimony? Why did the prosecution initially resist testing DNA evidence?

We probe these questions in a paper we authored with Bloodsworth that the Institute for Innovation in Prosecution (IIP) at John Jay College released this week. While these questions are specific to the Bloodsworth case, they also speak to the state of public defense, prosecution and, more broadly, our adversarial system.

From 2008 to 2012, state government indigent defense expenditures had an average annual decrease of 0.2 percent. Nearly three-quarters of county-based public defender offices exceeded the maximum recommended limit of cases received per attorney in 2007.

Research has revealed inconsistent and less favorable outcomes, including in sentence lengths, for those with non-public defender court-appointed counsel. Recent reporting shows that this problem is not going away.

These realities exacerbate systemic inequities, as low-income individuals and people of color are disproportionately penalized at every stage of the criminal justice process, and are more likely to have counsel funded by the government.

Across the courtroom – or, in more than 90 percent of cases disposed, the plea process – defense counsel represent their clients and challenge prosecutorial overreach. With discretion to charge, recommend bail, and condition pleas, prosecutors are amongst the most powerful stakeholders in the criminal justice system.

As this power comes under unprecedented scrutiny, many candidates running for District Attorney are touting their commitment to justice and reform over conviction rates and sentencing lengths.

One way they can make our system fairer is by taking immediate steps to strengthen indigent defense:

  • Support funding for public defense. As chief local law enforcement officials, prosecutors have a strong voice in policy debates and legislative matters, and an important public platform to support adequate funding for indigent defense.
  • Minimize the criminal justice footprint. Prosecutors hold significant discretion over who enters the criminal justice system. By scrutinizing arrests during case intake, declining to prosecute certain low-level offenses, and advocating for alternatives to cash bail and incarceration, prosecutors can minimize the extensive reach of the justice system and save money, while also reducing the heavy workloads of public defenders.
  • Promote and implement standards of transparency. In many jurisdictions, prosecutors are not mandated to show evidence against the accused until right before trial. This means that in the vast majority of cases that result in a plea deal, defendants may never see evidence against them. By instituting open discovery and complementary practices – such as adversarial testing of evidence, conviction review units, and data transparency – prosecutors can help strengthen the legitimacy of the system.

Prosecutors and public defenders across the country are already working together and taking steps to implement these reforms.

Roy Austin

Roy L. Austin Jr.

In Ramsey County, Minnesota, chief prosecutor John Choi and the local public defender advocated together to support state-wide sentencing reform. In Brooklyn, New York, prosecutors have moved toward open discovery, going beyond the mandates of state law.

As we consider the nuances of Bloodsworth’s case, we can’t help but consider how these or other steps by the prosecution might have impacted its trajectory. But in his case, as in too many others, prosecutors’ pursuit of convictions at any cost and public defenders’ insufficient resources for their cases can jeopardize constitutional protections, while the life and liberty of those accused is an afterthought.

We can change this.

Carlos Martinez

Carlos J. Martinez

As prosecutors aim to prove their commitment to a more equitable and effective justice system, they should be prepared to answer: How are you going to ensure a robust defense for all?

Additional reading: Miami Prosecutors, Defenders Quit over Low Pay

Roy L. Austin, Jr., former Deputy Assistant to President Obama for Urban Affairs, Justice & Opportunity, and a former Deputy Assistant Attorney General, Civil Rights Division. Carlos J. Martinez is the elected Public Defender for Miami-Dade County, Florida.

They are the co-authors, with Allison Goldberg of the Institute for Innovations in Prosecution (IIP), and Kirk Bloodsworth of the IIP report, “Prosecution and Public Defense: The Prosecutor’s Role in Securing a Meaningful Right to an Attorney.”

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