America’s Racist Criminal Justice System, Part 3


In the last installment of this series, I documented how the police and prosecutors target blacks and Latinos for arrest and prosecution at far higher rates than whites even though whites buy and sell drugs at the same rate. But arrest and prosecution is just the first step. The second step is what happens at trial, where it is all but impossible for a defendant to get a fair trial — and often to get a trial at all.

Because the vast majority of those targeted for arrest and prosecution are poor minorities, about 90% of them are represented by public defenders appointed by the court. In most states and local areas, public defenders are seriously underpaid and overworked and lack all resources to mount a credible defense. In most cases, the defendant doesn’t even meet their attorney until literally a few minutes before going into court. The attorney has done no investigation (and couldn’t afford to do it even if they wanted to), hasn’t even spoken to their client, and then has a few minutes to tell them what to do — which is almost always to plead guilty.

There are many reasons for this. First, as I said, they just don’t have the time to go to trial. In Detroit, for instance, there are five part-time public defenders who handle an average of 2,400 cases a year. They can’t spend even one day on a trial, much less spend the time preparing for it, interviewing witnesses, preparing briefs and motions, and so forth. So their goal is to push people through as quickly as possible.

Second, the prosecutors often multiply charges in order to force people to plead guilty. They’ll charge them with multiple offenses, each of them carrying mandatory minimum sentences, but offer a deal — we’re gonna charge you with multiple counts that add up to 30 years in prison, but if you plead guilty to one felony count we’ll recommend a year in prison and probation after that. Even if you’re innocent and know it, what choice do you have? Your attorney can’t really defend you in court anyway, so you could easily lose and end up spending the rest of your life locked up.

More than 90% of all criminal cases result in a guilty plea and never go to court as a result, even if the person is innocent. We’re talking about hundreds of thousands of people every year. In the next installment, I’ll talk about the consequences of those decisions.

Comments

  1. Jordan Genso says

    I am really glad you are writing these entries in such a clear format.

    We in the public need to do what we can to make the necessary reforms politically viable rather than politically risky.

  2. juice says

    In most states and local areas, public defenders are seriously underpaid and overworked and lack all resources to mount a credible defense.

    Is that their excuse? The reality is that they usually don’t give a shit.

  3. Aquaria says

    Is that their excuse? The reality is that they usually don’t give a shit.

    Did you miss the part about 5 part time attorneys, 2400 cases?

    How can you give a shit when you can’t give anything any time at all?

  4. says

    Did you miss the part about 5 part time attorneys, 2400 cases?

    juice apparently missed it, but I didn’t. We really need to reform the system so that public defenders get more manpower. Right now, they have to triage their cases, which means a lot of innocent people who look guilty at first glance aren’t going to get the defense they need. And, of course, the war on drugs is artificially inflating the burden.

  5. says

    Amy Bach’s incredible book Ordinary Injustice chronicles what life is like for a public defender. I have no doubt there are a lot of PDs who don’t really care, but I also have no doubt that there are a lot who try conscientiously to do the best they can. But for those who care, it is rarely possible for them to do what is required to mount a serious defense. They simply don’t have the time or the resources to do it. We need not only to have more of them, to cut down the workload, but they should be paid far better in order to attract more talented attorneys. And they need to have the same kind of resources that prosecutors have.

  6. says

    One pie-in-the-sky concept I imagined for a reform: Requiring lawyers who handle criminal cases to act as public defenders for a minimum amount of time/cases in order to keep their practice.

    Of course, I imagine there’d be a way to abuse that, but it might be better than what we’ve got in place now.

  7. Didaktylos says

    Even better – no prosecutor should be eligible to become a judge without doing a five-year stint a PD first.

  8. Ben P says

    I have no doubt there are a lot of PDs who don’t really care, but I also have no doubt that there are a lot who try conscientiously to do the best they can.

    I think there are a couple dynamics going on here.

    Some PD’s and legal aid lawyers take those jobs because they specifically do care about the plight of the poor.

    On the other hand, PD jobs are typically among the lowest paid attorney jobs one can find, even in today’s horrible job market for lawyers. Many people who might be good candidates wouldn’t consider them because they don’t believe they went to law school (and often borrowed $150k in student loans) to earn $35,000 a year working in the public defender’s office. So you do sometimes get public defenders who lack…career ambition.

    Even for those that do seriously care about the people they are representing or at least care about doing a good job, the nature of the work is grinding and morale killing. There are several facts at play.

    1. The vast majority of the people you will defend are, in fact, guilty of the crimes charged. Particularly in drug crimes, because, honestly, if you got caught with drugs in your pocket or car, they only way you get out of it is by saying it was an illegal search. You can only deal with so many people who insist they’re innocent when you know they’re lying before you get cynical and saying “look yeah, I know you’re *innocent,* but if you go to trial they’re going to throw the book at you, if you plead guilty they’ll let you off with probation…you need to take the deal.”

    2. The massive case load

    3. just the general stress of the job. A major reason lawyers themselves have high dissatisfaction is because lawyers often deal with people at their worst. When you’ve defended the same guy four or five times on the same type of charges, and even if you think “this time is different he’ll clean himself up….”

  9. Ben P says

    One pie-in-the-sky concept I imagined for a reform: Requiring lawyers who handle criminal cases to act as public defenders for a minimum amount of time/cases in order to keep their practice.

    Actually you’d be suprised that this is already in place in a number of jurisdictions.

    Many state bars require or encourage a certain number of pro-bono hours, and judges routinely simply pick lawyers out of the directory and assign them criminal cases when the overload gets so bad the public defenders say they can’t handle more cases.

  10. Ben P says

    Even better – no prosecutor should be eligible to become a judge without doing a five-year stint a PD first.

    This on the other hand is slightly absurd.

    1. Five years is a long time for a job to “tick off a box.”

    2. Do you really want all sorts of people being forced into jobs just to tick off a box? Do you think public defenders who have no interest in it will be effective?

    3. I don’t think it would reach the results you want.

    As I said above, even public defenders that care tend to become jaded and cynical within a year or less. They become fully indoctrinated into the way “the system” works, and aren’t any more likely to be particularly lenient on many criminals because of various conditions or personal backgrounds.

  11. says

    Proper funding of the public defenders is a political impossibility because you’re spending money to help criminals. The public wants to to be harder on criminals while cutting costs. The fact that railroading people is tremendously expensive is to complicated to explain well in a soundbite.

  12. Didaktylos says

    Ben P – you miss the main point: it will keep ruthless prosecutors off the Bench, while those are prepared to do it will spend long enough on other side of the hill to have their perspective altered.

  13. slc1 says

    Actually, a million years ago when public defenders were taken seriously in many jurisdictions, a public defender’s office was a good place for an attorney just out of law school to get his feet wet and gain experience in trying cases in court. Case in point, Judge John Jones III of Dover fame started his career in a public defender’s office. Unfortunately, some of those public defenders were too good and won too many cases and hence the offices were downgraded. Acquittals of defendents = soft on crime doncha know.

  14. Ben P says

    Ben P – you miss the main point: it will keep ruthless prosecutors off the Bench, while those are prepared to do it will spend long enough on other side of the hill to have their perspective altered.

    That is my point, time in the public defenders office simply won’t alter an attorney’s “perspective.” Rather, it indoctrinates them into the criminal justice system, and in my experience often tends to make them just as hard hearted and skeptical of claims of innocence as most prosecutors. I know several PD’s that are quite open about admitting most of their clients are lying scumbags.

  15. says

    Has anyone ever tried challenging the current wholly inadequate public defender system as a violation of the Sixth Amendment?

  16. matty1 says

    Here’s a thought, if public money is used to pay for the prosecution and the defence both sides should get equal amounts.

    What apart from fear of looking ‘soft on crime’ is the argument against this?

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