Mimesis Law
10 December 2019

Excessive Arrests Are Crushing Public Defenders

Sept. 10, 2015 (Mimesis Law) — Public Defender Tina Peng wrote an op-ed for the Washington Post that spoke of the systemic obstacles facing public defenders.  There were the common refrains of shoestring budgets and impossible caseloads that force public defenders to do the impossible.  But articles like Ms. Peng’s have always decried the fact that public defenders are underpaid and overworked. Little has changed.

Everyone knows, as Scott Greenfield put it way back in 2009, that “public defenders are overworked, overburdened, underfunded and at the cusp of professional irresponsibility.” Ms. Peng did, however, open up about something familiar to all public defenders out there.  Public defenders work their collective asses off trying to provide quality representation to a small army of clients, but they and their clients must live with the fact that they often fail.

And here is where we come back to Scott Greenfield. He responded to Ms. Peng’s article, tweeting:

twit

Ms. Peng did admit to the three words that are the equivalent of attorney kryptonite. She admitted to ineffective assistance of counsel. At Simple Justice, Greenfield wrote:

Wait, what? Did you just announce in a major newspaper that you have engaged in mass ineffective assistance of counsel, knowingly, willfully, deliberately?  Did you just tell the world that you are personally complicit in the destruction of lives by making the individual choice to fail to competently, no less zealously, represent your clients?

Now, it must be said that there are public defenders out there who fail to adequately represent their clients because they do not care enough not to fail.  They either entered the profession ill-equipped in skill or empathy to do the job properly or they burned out and simply do not have enough left in the tank.  But, for the most part, public defenders are some of the toughest and most dedicated lawyers out there.

And even the good ones fail. A lot.

But there is a big difference between failure and ineffective assistance of counsel.  Failure is watching a client go to jail because you simply did not have the time or resources to give him the top-notch representation he (and all clients) deserved.  Ineffective assistance of counsel is allowing your client, that you just met, to plea to a felony, even though you know nothing about the case, or about the person.

I spent a decade as a public defender, first at an underfunded suburban office and then at a well-funded and politically powerful office in Brooklyn, New York.  It takes a special kind of crazy to accept a position that tells you to figure out what route the almighty government has chosen, and then stand in the middle of the road to try to slow them down.  Most of the time, you end up with tire marks all over your threadbare suit, but sometimes, you watch with satisfaction as the government wreckage burns in a roadside ditch.

I respect Tina Peng for being honest.  I respect her for doing what cops, prosecutors and many other lawyers out there never do.  She admitted that she has fallen short.  Anyone who is or has been a public defender knows that it is impossible to do the job without consistently failing to provide the high level of representation you wish you could.  Any public defender who refuses to admit this is likely one of the worst offenders. They lack the honesty and self-awareness that at least keeps failure at bay.

As for criticism of this failure, it is tempting to shout back that non-public defenders cannot judge since they have not walked a mile in our shoes.  But the criticism is valid.  If anyone understands judgment, it is public defenders.  Their entire professional life exists to be labeled as “liars” by prosecutors, shrugged off by judges, and vicariously judged for the actions of their clients.  But yes, anyone who falls short of providing their client with effective representation deserves judgement.

The proper solution is what is so evasive. More money and smaller caseloads? Sure. Why not throw in ponies and rainbows as well since we are talking about things that public defenders offices will never get?

Scott Greenfield, backed by the pseudonymous Gideon at A Public Defender, have proposed for quite some time that public defenders should begin declining assignments until they have caseloads that allow them to provide effective representation to all their clients. While I am usually in favor of “blowing the whole damn thing up” in an attempt to solve a social ill, this “solution” simply will not work.

Public defenders often see themselves as the Hawkeye Pierce’s of the criminal justice world (that’s a M*A*S*H reference, kids). They see themselves, rightfully or not, as the only person who can help a large number of people. If the bosses want to shake things up, that is great. But it is simply not in the individual public defender’s DNA to see a person in jail and tell them that they will have to wait.

During my time as a public defender, I represented thousands of people who needed my help.  They did not need me to look over a mortgage contract or advise on the best corporate structure to pursue.  Every case was the most important thing in the world to that client and it was my job to solve that problem.  Many had cases that simply could not be won, but that did not make their desire for a solution any less real than the client with an amazing defense.  As a public defender, getting a shoplifting charge dismissed is important.  Getting a plea deal of 15 years down to 10 is important.  Winning a trial is important.  So is losing one, if the fight is just.

Despite 2009 casecap legislation (another failed solution) which promised to reduce caseloads, when I decided to hang it up as a public defender, I had over 70 felony cases (and a smattering of misdemeanors) in my file drawer.  Those were 70+ clients, with families and friends that deserved my time and attention as well, who all looked to me for salvation.  And they were all looking for it at the same time.

You do not need to be a mathematician to recognize that there were never even close to enough hours in the day, week, month, or year to adequately accommodate the complex facets of that many cases.  It is a burden I was proud to bear, but it definitely took its toll.  And much of that toll was guilt.

Public defenders deal with a level of guilt that most people cannot fathom or understand.  For the outside observer, the needs of criminal defendants can be dismissed as the needs of the “probably guilty.”  It is completely different when you have spoken, face to face, with every single one of them, and often their families as well.

To even attempt to manage a caseload of 70, 100, or 200 clients (and their accompanying hundreds of other problems), the public defender has two options.  You can either mirror the 80 or 90 hour workweek of big law while making a fraction of the money and grinding yourself down into a hollow shell.  Or, you can try to maintain an effective on/off switch that allows you to clock in and get after it while you are at work, but then try to turn back into a normal person when you leave.

Either way, you cannot be totally effective.  If you burn the candle at both ends, you will very likely lose the vigor and focus necessary to truly compete in all of those battles you will face on behalf of all of those clients every day.  I have witnessed public defenders try to do it this way, and they usually crash and burn. The other option is to put your clients’ cases on hold and go home each day.  While this is probably better for your sanity in the long run, it does mean that you will fail your clients on a regular basis.  At the end of each day, there were a hundred things that had to wait until tomorrow.  Then there were the phone calls (oh god, the phone calls).  That little red light never stopped blinking.

Beyond the size of the caseload, many clients are in jail while the public defender tries to deal with their case.  If the client cannot afford an attorney, then they probably cannot afford bail. Plea conversations are about what will get them out of jail and back home, not about strengths and weaknesses of the case.

Day in and day out, public defenders have serious conversations with clients about whether or not to take a plea, and often with very little of the relevant discovery to guide.  Police and prosecutors do not like to give discovery to the defense, and when they do, it is delayed because delay is great when you aren’t the one sitting in jail.  Paperwork that could end up in the hands of the DA within a day ends up in the hands of the defense attorney sometimes barely within a year.

So yes, there were many times when I would advise a client on whether to take a plea based upon what evidence I thought the government might have.  This is the way it happens all the time.  I have no doubt that I have advised clients to take plea deals when, if we had waited, we would have found out that the cops had the wrong guy.  Many of my cases were properly investigated. Some, though, were not.  There were days I did not return phone calls from desperate family members because I had nothing left to give.

Could I have done more?  Absolutely.  In fact, I should have.  I did a lot of good things as a public defender, but I failed a lot of people as well.  Public defenders fail more clients than most other attorneys will ever even have.  The beautiful thing about these incredibly resilient defenders is that they continue to fight.  Because they know that no one else will.

But if we are going to act like we really care about public defenders, and more importantly, their clients, we must stop expecting that proper funding will ever come to the vast majority of the public defenders offices in this country. Representing the poor and (as most people see it) criminal is not a politically alluring position. We will spend tax dollars to build bombs and baseball stadiums, but we never seem to set aside a fraction to properly fund the public defenders who do their damned best to protect the rights of the poor.

Offices like Tina Peng’s Orleans office in Louisiana will never have the proper level of funding that will allow her and her colleagues to effectively represent their indigent clients. Lack of funding and sky-high caseloads are married together. If you deal with one, then you, theoretically, deal with the other.

But what if we stopped trying to solve the caseload crisis with increased funding and instead solved the lack of funding problem with decreased caseloads? What if, and just bear with me here, what if cops stopped arresting people for nonsense things that do not deserve jail? What if cops only arrest the person who committed the crime and not all of his friends as well? What if we stop criminalizing every facet of human life? What if prosecutors realized that not every person the quota-driven police bring them deserves to be prosecuted?

We could carve off a significant portion of the public defender caseload if we just changed the way their suppliers operate. Such an idea might seem impossible, but is it any more far-fetched than asking public defenders to continue to beg for money that will never come?

5 Comments on this post.

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  • shg
    10 September 2015 at 9:33 am - Reply

    At the institutional level, there are a limited number of options available to a PD when the boss refuses to fight for caseload caps. But when the crush of caseload pushes the PD from failing to do “top-notch” work down the spectrum to the extreme of ineffective assistance of counsel, every PD needs to make a personal decision of whether to be an unethical cog in the wheel of the machine crushing defendants’ lives or not.

    There are plenty of perfectly reasonable excuses for doing less than perfect, but do those excuses justify the extreme of IAC? Ultimately, every PD (who, I note, are still lawyers and still personally, individually, responsible for their own ethics and integrity) has to decide for him or herself whether the excuses are sufficient to sell his integrity.

    • Ken Womble
      10 September 2015 at 10:13 am - Reply

      Agreed. IAC is unacceptable. The issue that I see with refusal to accept assignment on the individual level is that the wrong ones will use this. The PD who literally runs from courtroom to courtroom is going to take on more than they can handle. They will not see the true failures until they have already happened.

      However, there is a specific class of public defenders out there who show up late, treat their clients like burdensome pests, and don’t ever truly fight. If refusal of assignment gains traction, these are the ones who would use (abuse) it.

      The fighters are always going to think that, even while barely keeping their head above water, they are the best chance for any client that comes across their desk.

      • shg
        10 September 2015 at 10:20 am - Reply

        When the “fighters” are no different than the “failures,” except in their personal belief that excuses somehow make their IAC more noble than the other guy’s IAC, they really aren’t fighters. They’re just people who believe the lies they tell themselves to justify their IAC.

        I heard from a PD who told me how much time he’s spent over the past decade trying to convince clients he wasn’t a “public pretender” in order to gain their confidence and respect. His take on Peng’s op-ed is that she has set back public defense a decade, feeding into the fear that PDs aren’t “real” lawyers who just sell out their clients. As much as I’m sympathetic to Peng about the problem (and there was never any controversy as to the fact that it’s grossly underfunded), I’m also sympathetic to the harm done those PDs who refuse to provide ineffective assistance of counsel. And I’m mostly sympathetic to indigent defendants whose lives are sacrificed on the crucible of funding and excuses.

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