Op-Ed: A Law Student’s Plea to Fund Indigent Defense Services

by Aditi Juneja, Columnist

As a law student pursuing a career in prosecution, I often find myself in the strange position of advocating for more robust legal services for indigent defendants. I have chosen to pursue a career in prosecution because I believe in accountability for choices and want the privilege of spending my career focused on the pursuit of justice, rather than zealously representing a client.

However, inherent in my desire to pursue the amorphous concept of justice is the understanding that the defendants I prosecute will be represented by competent counsel with sufficient resources. I worry that, over fifty years after Gideon v. Wainwright was decided, which ensured defendants the right to counsel, we still fall woefully short. Given that some of the bipartisan support for criminal justice reform comes from concerns about the limited benefits, given the enormous costs, of the current system, I wondered why no one was talking about the long-term costs of not funding indigent defense.

There is not a lot of data available on the savings indigent defense attorneys provide because indigent defense service providers are made up of a patchwork of institutional providers (organizations like Orleans Public Defenders or Legal Aid Society) and panel attorneys (individual lawyers who apply to be put on a list and have cases assigned to them by the court), with every state employing a different system. Furthermore, unified, state-wide case management systems are rare, meaning that the data that is collected is limited by how an organization or individual attorney keeps records. This limits the government’s ability to know what indigent defense service provider system works best and how to efficiently direct taxpayer dollars to those systems.

There appear to be significant opportunities for cost-savings by providing defendants with lawyers at bail hearings. Pre-trial detention makes up for 99% of the incarceration growth in the last fifteen years. A randomized control study in Baltimore, Maryland found that by giving 4,000 defendants a lawyer at bail hearings, there was a net savings of approximately 6,000 bed days. This doesn’t just yield a financial savings, but also a public safety savings. There are strong correlations between the length of time low-risk and moderate-risk offenders are detained before trial and the likelihood that they will fail to appear and reoffend both in the short and long-term. Simply, pre-trial detention increases the likelihood that a low-risk or moderate-risk offender will reoffend or fail to appear.

Since we are only charging defendants who we believe are guilty of a crime, it can be hard to remain open to new information, a phenomenon known as confirmation bias. But this is exactly why we need defense attorneys present to advocate for their clients, and for judges to make decisions anchored in the recommendations of an impartial third-party. Too often, this isn’t what happens.

Even in New York City, where we do have defense attorneys at bail hearings, it was found that judges’ decisions were most correlated with prosecutors’ recommendations even though the Criminal Justice Agency’s recommendations were better at ensuring a defendant would return to court. As a future prosecutor, concerned with public safety, I want safeguards to make sure that while I’m acting in good faith on an individual case, so that my actions don’t have negative, long-term consequences.

The Exonerations in 2015 Report suggests this concern is not unfounded given the record number of exonerations last year. The 149 exonerated defendants and their families can’t get their collective 2,161 years back and the citizens of those jurisdictions can’t get the cost of incarcerating those defendants back. That is a waste of over $67.5 million dollars, based on an average annual cost of incarcerating an inmate of $31, 286.

The potentials for savings in correcting sentences downwards, not exonerations, are also huge. The Michigan’s State Appellate Defender Office, which is publicly funded, showed that they were able to save over six million dollars for the state in 2013 alone. It is important to note, however, that none of these numbers include the costs of correcting these errors through often lengthy litigation processes. Nor do they account for how else these people might have contributed to society, if they were free. It would, obviously, be better for everyone if mistakes were not made in the first place.

My biggest fear as a future prosecutor is that I will someday be responsible for a mistake that puts someone unjustly in prison. Legislatures should share this fear—if not for their constituents, then for their budgets.

 

2 thoughts

  1. Hi Rhiya,

    Thank you for taking the time to read and respond to my article about this very important issue.

    I agree that there are many problems and inequities in our criminal justice system. I did not mean to suggest (nor do I believe) that adequately funding indigent defense services would be a curative solution, but rather, that it is one reform measure that is urgently necessary.

    I also agree that our current criminal justice system can (and has been) purposefully oppressive. I think the crisis in legitimacy of such a system is one that is recognized, not only as a matter of optics, but as a matter of substance. Again, there are reforms that need to occur throughout the criminal justice system so it can fulfill its perpetrated purpose of doing justice. Providing and funding competent defense counsel with adequate resources is just one of those reforms.

    I also apologize if it seems that I was “throwing defense work under the bus” in any way. I have great respect for defense attorneys and think we need more defense attorneys who are given adequate resources to do their jobs. My preferences in focus of practice in no way devalue the choices of others.

    Defense attorneys do an excellent job of advocating for their clients within the confines of the system. This article is a call for legislatures to make sure that defense attorneys are provided to defendants at all stages of adjudication and to provide defense attorneys with more resources. I think the article adequately cites data stating how judges are anchored in prosecutor’s recommendations and calls for reforms to make them more impartial.

    My next article will more broadly address the need for empathy, understanding and justice (as opposed to winning and advancement) in the law, including legislatures and the criminal justice system.

    Again, thank you for your feedback!

    Best,
    Aditi Juneja
    Columnist

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  2. Dear Aditi,

    To attempt to cabin my deep frustration and offense at your op-ed, I have decided to respond to several things you said, as specifically as possible.

    You wrote, “as a law student pursuing a career in prosecution, I often find myself in the strange position of advocating for more robust legal services for indigent defendants.”

    You’re right, it is a strange position. The metaphor that comes to mind is calling for someone to give David some Muscle Milk so that you can beat the sh*t out of him and call it a fair fight.

    You wrote, “I have chosen to pursue a career in prosecution because I believe in accountability for choices and want the privilege of spending my career focused on the pursuit of justice, rather than zealously representing a client.”

    From where I stand, you won’t be prosecuting choices, Aditi. You’ll be prosecuting emergencies that have been unfolding for years; desperation that has past a tipping point; disregard for laws that lost the right to be respected when they started criminalizing identity and poverty. All of these phenomena ended in things you call choices to help yourself sleep at night, but please don’t suggest that you’ll be holding people accountable – if we really lived in a world of accountability, the masses would have already put an end to the systems of eviction, deportation, incarceration, institutionalization, and wage stagnation that oppress them.

    Also, just a process point: don’t put people down to elevate yourself. You don’t need to throw defense work under the bus in order to defend your own choices.

    You wrote, “since we are only charging defendants who we believe are guilty of a crime, it can be hard to remain open to new information, a phenomenon known as confirmation bias. But this is exactly why we need defense attorneys present to advocate for their clients, and for judges to make decisions anchored in the recommendations of an impartial third-party. Too often, this isn’t what happens.

    Even in New York City, where we do have defense attorneys at bail hearings, it was found that judges’ decisions were most correlated with prosecutors’ recommendations even though the Criminal Justice Agency’s recommendations were better at ensuring a defendant would return to court. As a future prosecutor, concerned with public safety, I want safeguards to make sure that while I’m acting in good faith on an individual case, so that my actions don’t have negative, long-term consequences.”

    Sounds like your problem is with judges, and their not-so-subtle allegiance with your kind. So maybe instead of calling for defense attorneys to advocate in a situation stacked against their clients, you could give some thought to the possibility that judges and prosecutors share an incentive structure and a culture of over-criminalization and race hatred.

    My biggest fear as a future prosecutor is that I will someday be responsible for a mistake that puts someone unjustly in prison. Legislatures should share this fear — if not for their constituents, then for their budgets.

    Aditi, you’re aspiring to a profession where winning means depriving people of their liberty; where your promotions will come on the backs of thousands of low-income people, mostly of color. Your biggest fear should be that you are everyday responsible for a system – not a mistake – designed to put people unjustly in prison.

    If you want to tell legislatures anything, tell them to stop criminalizing everyone and everything who represents a threat. Tell them to stop winning elections by instilling fear in the hearts of electorates and then expanding police forces and the criminal codes they are tasked with enforcing. And if you really want to avoid making a mistake, don’t become a prosecutor.

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