Chapter 3 - The Criminal Judicial System
Defenders offer their big-picture thoughts about the criminal judicial system and their roles in it.
What are your thoughts about the criminal judicial system?
Although Defenders were interviewed separately, when asked to give their assessment of the criminal judicial system, their responses are uniformly negative, visceral and graphic. Expletives, exclamations, sighs, and hisses pepper their responses. They characterize the system as functioning in a range from poor to pathetic. Few could find anything positive to say. One Defender emphatically states that the system is “trash. It should go in the trash.” Another Defender opines: “I would say a lot of it is a farce. That’s the briefest answer I can give you.” Another Defender gives this description: “It's a mess. It’s a hot mess….” One Defender characterizes the system as “one of the most inhumane and unjust institutions in the entire world. Um, it is shit. A racist, teeming pile of trash. That’s what I think of it.” Another Defender opines that “it is, um, a joke.” Another Defender notes: “I feel like it's probably the single most destructive force in the lives of marginalized Black and Brown communities, and I think it should be completely taken apart. There's nothing redeeming about it.”
Many Defenders understand the system to be wholly unjust and racially biased. Says one Defender: “I think it's operating the way it's designed to operate.... I think it was always a mechanism to surveil and control Black and Brown [people], and it has maintained that function even through decarceration waves.” Another Defender concurs: “Unjust. They call it criminal justice, but it's totally unjust. It is extremely subjective. There's nothing objective about it, except that it's geared towards punishing Black folks.” Adds another Defender: “Oh, it's flawed. It is flawed in a way that I guess is historically on par with the way this country is flawed. It's skewed towards white and privileged people…. So overwhelmingly it's racist; it's flawed. It works against the poor and the Black and the Brown and those without any measure of privilege, certainly.” Yet another Defender states, after a deep sigh: “Well, I do think it's the New Jim Crow. I do think that it's how we now manage Black people, especially Black men. It's how we keep Black people in their place. It's how we deprive them of their right to vote. It is how we make sure they don't have intact families. It's the same thing they did to us in slavery and really throughout our history.”
Many Defenders recognize that the criminal judicial system has always been unjust. One Defender explains that American racism within the system “doesn't begin and end with the justice system; that begins and ends with just the way this country is set up. I do think that the move toward compassion is new only because of things like the heroin epidemic, because of course we all know that when crack was the issue, Black and Brown people were treated as criminals. When they had addiction issues, they were locked up and made to figure it out….” Adds another Defender: “People talk about violent crime; go look at Flint, Michigan! People were killed because corporations poisoned their water, and none of those responsible are facing criminal liability. We see this in the drug and opioid crisis, where these companies have harmed people, killed people, and they get to write it off on their taxes. People are dying because of the opioid crisis, people are dying because of the Flint water crisis, people are dying because of EPA Act violations. And none of these corporations are going to freaking Criminal Court and being arraigned and sent to prison. None of their CEOs who are deliberately doing these things go to prison. But my clients, who are ultimately only committing the crimes to the extent that they do, are overwhelmingly acting out of financial necessity and out of the trauma that they've endured, and they are treated harshly by the system.”
In fact, many Defenders believe that the system is designed to perpetuate injustice. Says one Defender: “I think that the criminal justice system was designed to tear apart the Black family. And I think that when people say that the criminal justice system is broken, I think that that is a naïve assessment. I think that the criminal justice system is working the way it was designed to work, being a replacement for slavery.” Adds another Defender: “It's working as intended. They put people in jail. They put people in jail that society deems OK to be put in jail…. My high school was [in] the suburbs, the white suburbs, and it's very interesting. [People from there will say to me], ‘Oh you’re a public defender. And how do you like defending guilty people?’ And I just explained to them that all the crimes that they committed where the cops just told them to go home because they went to high school with that person's parents [is what our clients get arrested for]….” Another Defender avers that the judicial system is “meant to legally enslave people. Once slavery was illegal, this is a way to legally enslave people. And it still hasn't changed since it's foundation; it's doing the exact same thing it was ever built for. It is upholding literal slavery. Literal slavery. People are incarcerated, and they work the fields for corporations. So it is literal slavery.”
Overwhelmingly, Defenders decry the hypocrisy of the term “criminal ‘justice’ system,” asserting that justice is rarely achieved. Words like “farce,” “circus,” and “illusion” are repeatedly used. Says one Defender: “In a sentence, I’m glad you said, ‘judicial system,’ because it’s not a justice system at all. That was something I realized very quickly; and I will say now, almost seven years later, I find myself confused as to why I’m in this system….” Another Defender agrees: “The system is so wrought with racial disparity that it's hard to even say the term ‘justice’ when you say, ‘the criminal justice system.’” Adds another Defender: “The criminal judicial system, the criminal legal system—not to be confused with what people call the ‘criminal justice system,’ since we know this system is not just—is just an extension and tool of racism in this country. It is a tool that functions to maintain a narrative of racial difference and racial oppression.... The purported purpose of the criminal legal system is justice. But there is nothing just about it. Perpetuating injustice is its true purpose, born of its origins in chattel slavery.”
Continuing the assessment that the system is a charade and not about justice, one Defender opines: “The best way to describe it is a circus. I think of a rat in a wheel, where it’s just a bunch of procedures in place, with the alleged intent to bring about justice. By and large, it is just a bunch of procedures put in place to give the illusion of justice, and that’s about it.” Another Defender notes: “We always talk about the presumption of innocence, but people of color and poor people are presumed guilty. People who have contacts, particularly white folks who have contacts, and people with money or political pull are presumed innocent. Not anyone else. So there is no presumption of innocence, as far as I'm concerned.” A concurring Defender states: “There's so much about the system that is a fallacy. Everything is based on lies: the DAs are there to get justice; the judges are there to oversee justice; police in general are there to protect and serve. Everyone's living these fucked up racist lies. You hear judges render decisions, you hear prosecutors make arguments that are all very racist, but veiled in what others would consider to be neutral language. So it is all very much geared toward devaluing Black lives and Black humanity.”
A few other Defenders believe that the system on its face has unrealized potential. One Defender says that “in theory, it's good. The theory is good, this idea that, if you're accused, they have to prove the charges against you. You don't have to prove anything. The fact that you're supposed to be able to remain mute, and there's this presumption of innocence, and that a tie goes to the defense. It's all very good in theory, except that it's not realized in any meaningful way, certainly not in the current system. The system does its best to undermine all of that.” Another Defender shares similar sentiments: “It has the potential to work. If you believe the foundations on which it's supposed to be built, I think it's a very good system. But like all systems, it's who controls the system…. Somebody says you did something to them. You have to be held accountable; but if somebody's going to accuse you, you're entitled to a defense. And then an impartial fact finder makes a determination on whether or not you're guilty of the thing you're accused of…. I think the system, if equitable, would be a fair system; however, in practice, it is completely unfair.”
A few Defenders acknowledge that the system does serve some good. One Defender states: “I think it's unjust; it's a beast of a system, and it's racist. It discriminates against people who don't have the financial means. At the same time, in terms of a system to decide a person's guilt or innocence, it's probably the best in the world.” Another Defender opines that the system is “scary, unfair, and designed to destroy lives, particularly the lives of Black and Brown people.” However, the Defender avers that society needs a mechanism for dealing with deviant behavior: “We do have to have some form of accountability…. There are people who respond only to that sort of level of authority or discipline. There are people who say, ‘I would not be the person I am today had I not gotten arrested and gone to jail.’ And I think that's true of some of us human beings; some people are not going to stop doing or saying certain things on their own. Sometimes they have to be threatened in some way. Not to say that we need our system to be as punitive as it is, but I do think that there is value to having some sort of fear-based system because you're not going to get all people to behave just because we're supposed to.”
Some Defenders comment on how subjective the criminal judicial system is. As one Defender explains: “The main problem I see most of the time is that there are so many variables. ‘Justice’ depends on what cop you get. Then it depends on what judge you get. Then it depends on what prosecutors are assigned to your case. That all impacts whether you get a decent offer, whether your case gets dismissed, whether you're forced to go to trial, and there are so many variables that it just allows so many people's biases to play into the decision making. And it's those people that have power over your case. So that's not justice. How can you call it a criminal justice system?” Another Defender adds: “Even friends of mine that tend to be on the conservative side have always had to admit that there is no justice system. It isn't just. The criminal system exists to supposedly address people accused of crimes, but not everybody gets treated fairly. Not everybody gets treated the same. If you've got money, if you've got contacts, if you've got political pull, the criminal justice system serves you; whether you've committed a crime or not, whether you are justly accused or not, the system serves your interests. It doesn't serve the interests of the community at large that may be faced with [real situations]. It doesn't serve those people's interest at all.”
A few other responses:
Defender Right now, I will say that it makes me tired. It’s just entrenched in doing things the way that it's always done. It's a machine, a trap that you want to avoid at all costs.
Defender Evil. It’s racist; it’s evil; it’s destructive. It serves the purpose of maintaining the status quo in the worst sense. I don’t believe in evil, but if there is such a thing as evil, this system would be it. The way the system treats human beings is dehumanizing. Perfect example: when court officers refer to our clients as “collars” or “bodies.” Our clients are dehumanized at every step.
Defender It's a really deep question…. I've always retained a little bit of anger at the entire system because it's always struck me as being deeply unfair in many ways. I always felt like the idea of evaluating and making offers to our clients and saying, “This is what this particular offense is worth [in terms of years],” is so arbitrary. I've never been able to reconcile the fact that wherever you go, it's completely arbitrary. Like, why is it that someone is sentenced to eight or 10 or 15 years, or even three months of their life, for a particular offense? I don't know how [prosecutors, judges, and legislators] decide these things.
And I get it, breaking into someone's house is not a good thing. You don't want to see that sort of thing happening. But how is that equated with someone giving up a decade of his life? I don't really know what the rationale is for that. I can sort of understand if somebody is physically harming somebody or they're truly violent or something like that, perhaps. But a lot of it is just arbitrary and has never made any sense to me whatsoever.
I've always felt like you could probably dismiss 95% of every case in Criminal Court, and there would be no appreciable impact upon society whatsoever. And it might be higher than 95%, probably like 99%, to be honest with you. Maybe less so in Supreme Court because some of the cases are a little bit different, but there's always been way too many cases prosecuted.
[The number of] indictments have gone way down. But when I started, indictment numbers were extremely high. When I first came to Brooklyn, the [Brooklyn District Attorney’s office] was still indicting a lot of cases, like 15,000 indictments or so per year, which was a tremendous number….
In Manhattan they had a very unforgiving way of prosecuting people there. You'd ask for a program and they would say things like, “There are programs at Sing Sing; there are programs at Clinton.”1 (Author reacts) I kid you not. I had a client who was arrested twice in the space of a year for methadone sales. [This was] when you had undercover officers who were hovering around methadone clinics, posing as addicts and basically trying to beg for drugs. Cops would then arrest and charge anyone who gave them drugs with “making a sale.” It was really entrapment. It might not meet the legal definition of entrapment, but in essence that was entrapment. And I thought it was just disgusting.
So with this client, he was around 50 years old at the time when he first got arrested. I asked him, “What happened? You never had any arrests in your life.” The guy had a college degree, and he basically said, “I had a relationship, and when it fell apart, I fell apart.” And he just kind of went downhill from there.
After the second arrest, he conceded: “I’m badly addicted, I need a program.” The judge asked the prosecutor, “Why don't you offer him a program?” And the prosecutor just refused, never would do it. She said, “Well, there are pretty good programs in the state prisons.” And I'm thinking, those programs are shit. Why shouldn't he have an opportunity to go to a drug program instead of doing time? Who knows if he's going to complete it or not, but at least they should give him that opportunity. And they never budged; eventually they said, “Well, we'll offer him one-and-a-half to three [years in prison].” He wound up taking it, because it's Manhattan and you would get slammed otherwise. But to this day, I've never forgotten that. Even the judge said to them, “This is unconscionable. This guy really deserves [treatment].” And this is a Manhattan judge that is normally like, “Fuck all clients,” and even she thought it was ridiculous.
I found that so arbitrary. I mean, all right, he sells $20 worth of methadone to an undercover cop, and he's got to give up a minimum of 18 months of his life. So that's one of the things that I've always found very hard to reconcile about the criminal justice system, the arbitrary nature of it.
Defender It's crap. Um, it's really crap. It clearly persecutes poor people. The persecution of poor people and people of color is absurd, and some of the things that people are prosecuted for is offensive.
I was working a Christmas Eve [arraignment] shift, and this was early 2005, something like that. I had an older woman who had never been arrested before, and she was [charged with] shoplifting food. She was clearly needing food. She wasn't even shoplifting excessive stuff. She was taking cheese and milk. I mean, basic necessities. The ADA was offering her [a disorderly conduct plea]. And I was asking her to come back because I was sure I could get her an ACD on the next court date. But she said she was so embarrassed that she just didn't want to come back. So [we were arraigning the case] and the judge was just like, “it is Christmas Eve, People. Give this client an ACD.” The prosecution would not do it. So the client took the disorderly conduct plea. Clearly this was a woman that was in need of food…. There has to be some compassion by the DA's office or by the prosecutor; [I mean,] recognize [that] she's an older woman. She's never been arrested before. It's not like she was shoplifting lobsters and stuff; it was food, basic necessities….
Defender The system, like a lot of things created by humans, is imperfect…. I always wish I had a chance to be a public defender in Appalachia or in some place where we are just not [there in large numbers], and to compare how poor white people get pushed through the system. I want to see if there are any differences, which of course there are…. I think if you strip away people's own feelings of racism from the equation, the system itself is not quite as bad as it appears to be….
The problem is that the majority of crime is going to be committed by poor people, and until we figure out how to help those that are at the borderline of making that bad decision to turn a knee in the other direction, it's going to be bad. It's confusing, because when I think about some of my buddies that have done [prison] time, they should have been doing time. They were doing crazy shit out in the street. I mean, I love them. They love me. My parents love them. They love my parents. Everything is aboveboard that way. But you know, I know a couple of my buddies have bodies all over Harlem from back in the day. It ain't no joke. And I watched them do stupid shit, you know? ….
[I’ve always felt it harder for people in New York City who get caught up in the system to walk away from that kind of life than people outside of New York City, particularly in the south. Then] of course, there are the dudes that just don't care, that are wired to not care. That is what prisons were built for, those dudes. And you can't really include them and use them in the analysis because they're never going to do right. That's just not who they are. Some of my clients used to say that to me, like, “[My Name], stop thinking everybody gives a fuck about right and wrong. That's just not how people rock. It's just not like that. YOU are that way. That's why you went to school. That’s why you have a job….”
Defender The criminal judicial system started out with this idea of, “Let’s just throw people in cages, and that solves all the world's issues.” And that's just where they're stuck. There's no willingness to even remotely, genuinely consider anything outside of “Let's just lock people up and throw them in a fucking cage.”
Defender It may be the most flawed institution in the United States, that and the electoral college. (Author laughs)
FN 1: Sing Sing and Clinton are prisons in upstate New York.
Do you think the criminal judicial system is fair? if not, do you think it can be fair?
Predictably, almost all Defenders answer the first question with a resounding “no.” One Defender who deviated states: “Actually, it's fair depending on who you're in front of, depending on who is dispensing the ‘justice.’ You know what I'm talking about, right? It's fair based on who you're interacting with, which judge you're in front of. It's fair in that sense, depending on the judge and the county.” Another Defender similarly opines: “I can't say that as a general matter. I think there are specific cases and instances where it is fair, and everyone is happy and it is a fair result. But I've seen too many times also where the disposition was unfair or unwarranted, or the judge was unfair or the prosecutor was unfair. And I've seen that probably more times than the opposite.”
Other than those instances, Defenders are in agreement that the judicial system is unfair. One Defender states that if “all things were equal, I think it's built to be fair. But it's the biases that people have. The criminal justice system is run by people that come from certain places and grow up with certain experiences. I think as long as those people are involved in the system, there's no way that it could ever be fair.” Adds another Defender: “The system doesn't exist independently of society, so an unfair society is going to produce an unfair judicial system.” Another Defender agrees: “No, it’s not fair. The system is a reflection of the society in which we live in; and our society is not fair.” Another Defender notes how “there’s also the set of beliefs around who has the authority to opine and what criteria they should use. This idea of judicial neutrality and judicial objectivity allows judges to fail to examine their own racism and the operation of their own biased beliefs, which are actually affirmed as they get elevated to the bench. All of this has corrupted the system; all of this and more.”
Some Defenders point to racial bias as a specific cause of unfairness in the system. Notes one Defender: “If an old white man can come in and get a better offer than me just because he knows a judge, that's not fair. If a client has no criminal record but, because he has no family or community ties, is staying in jail on bail that nobody can pay for him, that's not fair. There's nothing in his history that would show he's a flight risk. He doesn't have family. Does that make you a flight risk? No, that's not fair. These are things that come up in my life and practice every day, and I see the inequity in the system. So, no, I don't think it's fair.” Another Defender notes that the system isn’t fair “when you can have a Black kid and a white kid standing in front of the same judge, and the ADA makes an offer far more favorable for the white kid and not the Black kid; and there's no difference between them other than their skin, because neither has a criminal record. Neither has had any sort of juvenile interactions previously. But you want to offer one an ACD and the other a violation for the exact same offense, and then you get mad when you get called out in court about that….” Adds another Defender: “It always used to boggle my mind that I would have white clients that come in and get arrested for DWI, and they would immediately get infraction offers. And with some of the [blows on the breathalyzer],2 I knew that would never happen for a Black client of mine. Never, never, never. One white woman actually got a [disorderly conduct]3 offer on a DWI. I was shocked. Disorderly conduct. Not even the DWAI.”
Defenders are split on the second question. Some Defenders are more optimistic. One Defender states: “No part of it is fair. It can be fair, but only after a serious refocusing on economic justice and eradicating poverty in the United States.” Another Defender opines: “I think it can. I think it can, because … it does include mechanisms that would certainly allow for it, if they were used in the way they should be. But I think it can, yes.” One Defender frames his/her optimism this way: “I like to stay hopeful and positive, because then what's the purpose of tomorrow, if that makes sense. So I'm going to say yes to that question, but I will say not in my lifetime, probably. I don't like to be a pessimist, but probably not even in my children's lifetime. It's like taking a step back from the system and looking at the systems of inequality, looking at why, when I walk into a courtroom, that I see predominantly Black and African American people. It's not just about those people who are presently in that courtroom at that time. It's about so much more. It is about breaking the foundation and rebuilding it. So I like to remain hopeful, but not in my lifetime. I'll continue to have hope.”
More Defenders are less optimistic. One Defender bluntly states: “I don't see it becoming fair anytime soon.” Another Defender concurs: “That's a hard one, because I feel like anything's possible; but it's been operating the same way that it has since its inception, and so I don't think it can be fair.” Adds another Defender: “No, it can’t be fair because humans are not fair.” Yet another opines: “No it’s not fair. I don’t think in this country it can be fair. No, not in this country…. I think in this country, we have systemic issues with how people view race and class. While our society remains the way it is, I don't think it's ever possible for the justice system to be fair. It's a reflection of who we are as a country.” One Defender thinks: “No, I don't think it can be fair, not as it is. I think it has to be dismantled. I never thought it was fair. I never thought Black people got a fair trial. I never thought that Black people were seen as human beings. In the last few years I've really been thinking differently about it. No, it can't be reformed. It has to be dismantled, you know? It has to be dismantled.”
Other responses:
Defender No, it’s not fair…. I think there are aspects of it that can [be fair], and it has gotten better in some sense. One positive change in New York City has been the way drug cases are handled. When I was in the Bronx, one of the worst things about it was that, I think, three quarters of the indictments were all these drug sales. I did about five trials in the Bronx on buy-and-bust cases. The biggest sale I ever handled was a $50 sale. Now the good news is—and I'm not patting myself on the back, but I thought I was the shit—I won five acquittals. But then I remember the jury was like, “We felt sorry for your client.” The whole thing was ridiculous.
It can be fairer than it is now, but there are still many, many laws on the books that would need to be changed.
Defender No, but I don't think life is fair. And that's one of the first things my mother always told me: life is not fair, and I don't know who told you it should be. And that's what I tell young people now—because I do a lot of work with young people. I always have, but now I work primarily in the Juvenile Rights Practice in [the office where I work]. So I hear young people all the time saying, “Oh, that's not fair. We shouldn't have to do this; we shouldn't have to live like this; it's not fair. It's not fair—” And I just look at them and I say, “You know what? When my grandparents came north from the Carolinas—they were probably one or two generations away from slavery—life wasn't fair for them. And then when my mother was born in 1954, my father was born in 1955, and they had to make their way, and they got their education and they worked and did what they had to do, life wasn't fair for them. And when I was born in 19XX and we had all these rights and could do all the things that my grandparents couldn't do, life still wasn't fair for me. So I don't know why you think that you're special, that life is just supposed to just roll out a red carpet for you, especially being Black in a country that was founded on the subjugation of Black people.” So fair is not necessarily a concept that I subscribe to. I mean, we don't have to accept that life isn't fair or that the justice system isn't fair; but certainly, we have to acknowledge that it's not.
Defender I don't think it can be fair as long as it continues to be a penal system. I believe that if we need any system at all, it should be a rehabilitative system. I visited Cuba and I saw what Cuba does. Cuba has a system that, while I don't agree with everything there, I do agree a lot with its rehabilitative system. It’s not that they don't believe that people need to face consequences when they're doing something that's against society's interests. For example, if you rob somebody—regardless of where you rob them, from a rich home or from a poor home or whatever—you took something that wasn’t yours. But they also deal with a rehabilitative system that takes into account your whole being, your whole life, where you come from, what's your background, things like that. It’s not that they're going to say it was okay for you to rob that person, but [the system] gives people a better understanding of why you felt you had to. Then they rehab that person.
They’ll take a person that robbed a house and put them into a job, because they're serving time—we can call it serving time—but the government will pay them the exact same salary that people on the outside are getting paid for the same job. They are conveying a certain respect for a human being. They don’t pay them to make license plates for two cents a plate. You're paying them to do constructive, necessary work; and you’re paying them the same thing that a worker would get paid on the outside. To me, that's the type of system we need.
Defender [No, it is not fair. Here's an example of unfairness: the treatment of public defenders versus the treatment of private attorneys.] It's crazy; I used to be offended at one point when our clients talked about getting better deals with private attorneys, but then I had an experience that made me see why our clients say that. It’s not because our clients didn't necessarily value what we do. Our clients were hip to something that I wasn't hip to until I witnessed it with my own two eyes. It was nothing personal. When you are coming in with a private attorney, it automatically changes your social standing for judges and prosecutors; you are automatically treated differently, because the idea that runs through the criminal justice system is that our clients who are indigent are not worthy. They are viewed as second-class citizens, so the people representing them are also second-class citizens.
The incident that made me hip to what our clients are hip to was this: I was in a particular Supreme Court part, and my colleague was being relieved on a particular case. The client wanted a particular plea; [my colleague] had been trying to negotiate the lowest plea. The prosecutor eventually reached a point where they're like, “We can't go any lower.” [My colleague] got relieved off the case, and a private attorney put in their notice of appearance. The private attorney met the prosecutor for the first time in the part, and the prosecutor automatically made an offer that was six months less than what they had made to the public defender.... The private attorney showed up that day; first time, first conversation. When the prosecutor was confronted about it, her justification was, “Well, he’s a private attorney. He’s gotta show his client his money’s worth.” (Author reacts). Yes!
Afterwards I and [my colleague] went back to the office. My colleague was so upset. She was contemplating how to file a formal complaint; she went to the head of our office. She's actually still in our trial office; if you bring this incident up to her, she'll become enraged because right there in front of our faces, we saw what our clients tell us all the time: when you get a private attorney, you get better offers. It was true.... This man did no work; nothing. He didn’t present anything more than what we had already presented. Yet, simply getting on the case as a private attorney, [the prosecutor] made it a six-month-less offer. It was mind-blowing, because then you reinforce to the client that it's not about the quality of your defense attorney's effort but simply the agency that they’re coming from.... How do you fight that? How do you deny that? And that was her justification, when [my colleague] confronted her as to why…. So this prosecutor was automatically assisting the defense attorney in robbing this client with a retainer....
Defender No, [it’s not fair]. Can it be? Yes, in theory, but with the amount of work that would have to be done, our society is nowhere near being able to grapple with that or do what is necessary.
Why isn’t it fair? How isn’t it fair? First of all, we should talk about the resource disparity, the amount of money that law enforcement and the prosecutors get on that side versus how much money is allocated to defend the citizens. That's unfair.
[Then there is access.] They have access to experts. For example, the office of the medical examiner, all of these places of expertise, these labs, chemists, these gun experts, the ballistics labs; all that's on their side. They say it's for investigative purposes, but the point is that [that] is the mechanism of prosecution. They have access to all of that. They're on their payroll. It's presumed that they have access to that. They have authority over those people, and we have access to none of that. We have to make a case to get access to that. We have to make a case to have access to different experts. It's not presumed, it's not par for the course, it's not in-house. We can't send anything to a lab. We can't send anything to the ballistics lab, the chemistry lab, [or] the office of the medical examiner. That's at their disposal. All we can do is, after the fact, try to hire someone to look at the stuff that they've already done. Hopefully [we are] able to do that, but we don't have access.
There's also a disparity in access of information. They get the information first. They have access to the witnesses. The police and the prosecutor decide who gets interviewed. It's almost like contact tracing, right? Like contact tracing, they get the first shot at getting witnesses or people that our clients or a citizen may not have access to…. So they get to decide whose name is taken down, whose phone number is taken down, and whose [information and phone number] is not being taken down. They decide if they're going to write something down. How many times do we have instances where people [witnessed material facts] and the police reports were completely empty of any of that? So then you're supposed to go figure out and recreate who was getting off the bus at 8:30 PM at the time they were there. So we don't have access to information. We don't have the ability to preserve information, to preserve evidence. So that's a huge disparity.
If they were concerned about it, there would be an affirmative burden on them to preserve that, to take down [information], to preserve this stuff. There's no burden on them. There's no responsibility on them to do any of that stuff.
We also don't have access to, for example, grand juries. That's a process that was completely constructed to benefit the prosecution. There are relatively no standards for what they have to present, no standards for what witnesses they have to call. We don't have access to it. We are at their mercy….
It's unfair obviously because of the bias. There's not a presumption of innocence. I mean, I think pretty much everyone can agree on that. I don't know that that should even be a controversial statement. There's a presumption of guilt just by the questions, the way they interact with people. Why do I have to miss work all the time to come here? I'm an innocent person. Why should my job be at stake? Why should I lose money? Because I'm accused? If I'm presumed innocent, there's all these built-in things that should happen. But they presume you're guilty, so they don't give a shit about how you get to court, or what you have to deal with from work, or if you're going to lose your job or not, or if you can pick up your kids from school…. You don't treat innocent people like that. You treat guilty people like that. You treat people that you don't care about, that don't have any social power, [like that]. That's not how you treat people who are presumed innocent. So that's not fair.
Defender No, because it's that same idea. You look at any fucking “reform” that we've seen…. There was the year that the DiFiore order came out, the discovery and Brady order.4 That was one of the first things that came out; and it was like, holy shit! This means something. Things are going to change. Nothing fucking changed. Then we have the discovery reform, right? The bail reform.5 And it's like, holy shit, things are going to change, right? Nothing fucking changed.
Granted, there are certain circumstances—probably more so on the bail reform front—where people who would not have gotten out are now getting out; but that's a very limited number of cases. If you look at the numbers—there are numbers out there—prosecutors are asking for more bail. What they do now is they just upcharge; so some fucking bullshit assault now turns into a fucking attempted robbery in the second [degree] because that's bail eligible, and that's how they can set bail on anyone.
So it's like they will always find a way to try to fuck someone over….
Defender No, not even close. It's not fair to not only our clients, but to attorneys of color. I can't tell you how many times I've been stopped after visiting a client back in the lockup because the corrections officers think that I'm trying to escape. I'm wearing—anybody who knows me knows I really like clothes—I'm wearing very nice clothes. Clearly, I have not been locked up during the time. But it doesn't matter; they see color and they will stop you. Or, I had a judge ask me, “Where's your lawyer” when I'm up at the bar; or, a court officer has stopped me from walking into the bar area because they think I'm a client without a lawyer. So, I mean, it's not only affecting our clients; this is how they're treating me. I'm an attorney. I have a JD and I'm employed, and this is how they're treating me. You can only imagine what they're doing to our clients.
Then when you're in the position of a public defender, you see the blatant unfairness. In the morning, I'll have a client who's African American who has a charge, like a high misdemeanor or low felony—maybe burglary or something, burglary in the third degree—and they'll throw the book at him. I'll end up having to fight that case tooth and nail until I can get something going. Then in the afternoon, I'll have a white client with probably a worse record and worse charges, and they're going to bend over backwards to make sure that that guy doesn't go to jail. He gets some kind of what they call an ATI, an Alternative To Incarceration kind of a plea, so he’ll be out of jail.
Bail, forget it. Bail is completely unfair; people of color are going to get bail set on them far more often. How did Jay Z say it? “Half a mil ‘cause I'm African.”6 Yeah, that's basically the way it rolls. If you’re Black, you're going to get bail set on you. If you're white, they're going to find some way of getting you released so that you can attend to your other issues; and then come back to court and we'll see what we can do for you. It's ridiculous. Plus, they treat Black children like adults, and they treat white children like children.
I guess really what we should be seeking is just that everybody gets treated the same way; even if you're going to be unfair, make sure you're unfair across the board….
[Do I think the system can be fair?] That is an interesting question. For years, I said I would never see an African American president; and then there was one. So I don't want to say it can't be fair. I don't want to say that, [because] hope springs eternal. But you'd have to change the leopard’s spots. You'd have to change the thinking of the white society that runs and dominates this society. You'd have to change their thinking at such a level that I don't know if it's possible. You have “Karens” yelling at a guy for photographing a dog or whatever he was doing; but you talk to her and she'll swear that she's not racist and she's liberal and this, that, and the other. And that's the problem: the majority of white society—and boy, this is a horrible thing to say—but it seems like the majority of white society really do, I think, have good intentions; they don't really realize that their thinking is such that it is oppressive and it's not fair and it's not equitable. Then they get into a situation [like Amy Cooper did], and they’re like, “I’m gonna tell the cops that a Black man is assaulting me.”
So do I think it can change? I have to say yes, I think it can change. It's not going to be easy though.
Defender Fuck no. I don't think it can be fair, because if it is fair, people will lose their jobs. I think people will lose their jobs because there will not be enough people to arrest. So we’ll need fewer court officers. We’ll need fewer police officers. We’ll need fewer judges. We’ll need fewer public defenders. We’ll need fewer DAs.
Just like here in New York City, every time the arrest numbers go down, people go hoopla saying that New York is a crime-infested city, just because arrests have gone down. I think it's a money-making scheme. I think if 10 people get released from upstate prison, they have to send 10 more back upstate to replace those people. It's a money-making thing; and if money is not being made, how do people survive?
FN 2: A breathalyzer is a machine that law enforcement uses to test whether a suspected motorist was intoxicated or impaired by alcohol at the time the motorist was operating a vehicle.
FN 3: “Disorderly conduct” is an offense that qualifies as a violation, so pleading to it does not give a person a criminal record. A disorderly conduct plea is a popular disposition to criminal cases and is the most harmless charge a person can plead to. Disorderly conduct pleas, however, are almost never offered to clients charged with drunk driving. Most often, clients charged with drunk driving who later plead to a non-criminal offense will plead to Driving While Ability Impaired (DWAI), which is a traffic infraction and not a crime.
FN 4: “Brady” refers to materials and evidence that is exculpatory or otherwise favorable to the defense. The term “Brady” comes from the case Brady v. Maryland, 373 U.S. 83 (1963), a landmark Supreme Court decision in which the Court held that the prosecution is constitutionally required to turn over evidence to the defense that is favorable and material. In November 2017, Janet DiFiore, then the chief justice of the New York Court of Appeals (New York's highest court), ordered Criminal Court judges to issue “Brady orders” to the prosecution in each case at arraignment, which required prosecutors to comply with their constitutional obligations under Brady v. Maryland. See Press Release: Chief Judge DiFiore Announces Implementation of New Measure Aimed at Enhancing the Delivery of Justice in Criminal Cases, New York State Unified Court System (Nov. 8, 2017), https://ww2.nycourts.gov/sites/default/files/document/files/2018-05/PR17_17.pdf.
FN 5: In April 2019, the New York State Legislature enacted criminal pretrial reforms in the areas of bail and discovery, and to a lesser extent in the area of speedy trial law. The reforms were implemented in January 2020. Since the implementation of these reforms, judges, prosecutors and law enforcement have vigorously fought to roll back the reforms and have made significant strides in so doing. See, e.g., Zamir Ben-Dan, When True Colors Come Out: Pretrial Reforms, Judicial Bias, and the Dangers of Increased Discretion, 64 How. L.J. 83 (2021).
FN 6: This is a line from Jay Z’s song “99 Problems.”
What is the job of a public defender in the criminal judicial system?
Defenders have varying perspectives on what their responsibilities are as criminal defense attorneys. These perspectives are not necessarily mutually exclusive. Some Defenders speak of upholding constitutional ideals. One Defender states: “Our job is to try to believe in the Constitution as much as possible, and to hold the system to it. We’re reminding people that these laws are written by people. So what if some old white man wrote this a while ago? Right now, this is the community that is here.” Another Defender opines: “I think the job of a public defender is basically what Anderson Cooper says: keeping them honest. I think that means filing that motion that you know you should win, then moving to re-argue; or just trying to call a spade a spade when they're not being fair.” Adds another Defender: “The optimistic answer is that we are to defend the rights of the accused. We are there to make sure that our client’s rights are protected and to defend them every step of the way.”
Some Defenders envision the job as a means to give voice to their clients. One Defender states: “I think our clients always have a voice. They always have a voice, and if we listen right, we will see that they have a lot to say about their lives, about why they do what they do, etc. Even the ones we disagree with, they have a voice. So we’re there to ensure and to limit the harm done to our clients as much as possible.” Another Defender opines: “We're supposed to be the voice for our clients. We defend our clients and advocate for them zealously to the fullest extent that the law permits us to. We use our tools, our legal prowess, what we know, our knowledge of the law, our teams, our organization, all the people that can help us prepare the best defense when we advocate for clients, and we fight for people who would otherwise be voiceless in a system that's created to just run them over.”
Along those lines, some Defenders listed as their primary responsibility the task of finding the best resolution to a case for their client. One Defender notes that the public defender’s job is “to advocate. To basically yell and scream and make a fuss as to why my client deserves better than they're trying to give him or her and why jail is not the answer for everyone. It’s basically to advocate for my clients' needs as to what will make them better people, what will make them come out better and consequently will make society come out better.” One Defender cynically opines: “I think for the most part, it is to bring about the least shitty alternative, because there’s never actually going to be a true win….” Another Defender thinks the public defender’s job is “to get the best outcome for your client that you can; and that could be very different things. The role of the public defender is taking each person individually and figuring out what the best outcome for this individual person and this individual situation can be and how I can try to achieve that. It’s really hard because you're not making policy decisions….” Adds another Defender: “I think the job of a public defender is to be a witness and to name what's going on in the system, the fundamental unfairness. To shine a light on that, and to try to help as many people as possible get out of it with their lives intact.”
Some Defenders characterize their function as minimizing harm. One Defender states: “A public defender’s job, number one, is to do no harm. I always took that to mean that if they are making my client an offer that he should take, I should probably get my client to take it and put aside my ego or my thoughts about going to trial because I feel like I could win, because obviously there's no guarantee. I may have an ego and be like, yeah, we're gonna go to trial and we're gonna win; but at the end of the day, it's not I who ends up with a criminal conviction or has to do probation or community service or anything. It is not I who has to keep coming to court to do a trial when they're offering something that will not hurt you.” Adds another Defender: “One is to minimize the harm; and how do you do that? You present your client as a human being. You respect your client as a human being and treat him or her as an adult, fully capable of making decisions on his or her own. You try to humanize your clients in front of a judge or in front of a prosecutor. You try to get them out of trouble. If you can possibly get them out of trouble, you do that; if you can't, you try to minimize the harm and you try to be supportive and protective. You try to educate colleagues and your community about criminal justice, and you try to expose injustice.”
Because of how ruthless the judicial system can be, some Defenders describe their responsibility as doing what they can to slow down the grind. One Defender states: “To slow it down. To slow it down as much as you can, to make it difficult for the government to prosecute your client. It's difficult because it's like fighting a losing battle. So I think our job is to really try to stop it, to slow cases down for as long as you can. To keep people out of jail, with the understanding that the system is not fair; and to prevent the system from doing what it was built to do: to put people in jail and ruin lives.” Another Defender concurs, opining that the public defender’s job is “to make it as difficult as possible to take somebody's freedom away. To slow it all down…. We really get involved in people's families. We become these appendages to people's families, especially the longer the case goes on and the more serious the case is. We play such a huge role in these families’ lives; and they didn't pick us. They didn't choose us. It's sort of a relationship that comes about from happenstance…. I feel like sometimes we oversimplify what we do and [think], oh, I'm a litigator, a criminal defense attorney, a public defender. But the role of a public defender specifically is so much broader; and the impact that it has is just so much broader than I think is actually recognized…. We are truly foot soldiers, and we take a lot of things on the chin to stop this systematic oppression from just destroying people's lives.”
Some Defenders see the job as encompassing more than simply advocating on behalf of the individual client. One Defender explains:
To me, a public defender wears multiple hats. We have this obligation to zealously defend our client, and that is the primary obligation and it should come first. But I don't actually think that it needs to come at the expense of our commitments around racial justice, around gender justice. It’s about thinking about the kind of world we want to see.
[As one example,] I’ve definitely heard public defenders say, “Well, my client’s accused of raping a child. So I gotta go out there and make it look like this child is some hussy.” That bothers me because—and I've tried a bunch of child sex cases both in family court and in criminal court—that’s oftentimes not the winning strategy for the case, and it's also not the winning strategy for society. And the reality is that it benefits the power structure if we're pitting members of the community against each other. If you have a child sex case, obviously there’s a dimension where it’s a child versus your client. But in reality, everybody's experiencing violence in that space. Everybody's experiencing social disavowal in that space. Nobody is being respected…So I think our role isn’t exclusively about zealously defending our clients and winning trials. Yes, obviously that’s a part of it, but it's also about thinking about the big picture.
At the same time, Defenders cautioned against perceiving the job as a vehicle for meaningful change. One Defender elaborates: “We're not qualitatively changing the system, because the only thing that's going to qualitatively change the criminal justice system is people from the outside. We must put importance on organizing against what's happening inside. It's not going to come from inside, because it's not in the interest of people who run these jails to say, ‘Let’s close down these jails.’ Their mindset is, where am I going to work if I can't crack the whip? Where am I going to work if I can’t bang the bars? Where am I going to work if I can't abuse somebody with less power than me?” Another Defender notes: “My role going into public defense was very much, I'm going to be there for the defenseless and I'm going to be there for those who don't have a voice, and the helpless! But now it's like, well, I'm here. I'll go to trial for you. I'll take this plea for you, but I'm not really helping you. I'm helping the system work basically…. You come into this really green; and even we all say it to ourselves: ‘Oh, I understand that I can't change it on a systematic level, but I'm going to change it individually!’ But that's not a thing; we gotta stop saying that to ourselves. That's not a thing; we're not changing the system by working in the system.”
Other responses:
Defender I think the job of a public defender, first and foremost, is to advocate for their client; to help that individual person navigate a complex system designed to dehumanize them, and to show that they are still human and worthy of being fought for. We also need to be knowledgeable of the laws and regulations that entrap our clients in that system and adept at helping them understand and navigate the criminal legal system and its direct and collateral consequences.
Defender I've wrestled with this so many times, because it feels disingenuous to be a member of the system, to have signed that book saying, “I'll uphold the laws of New York and the Constitution” while thinking the system is unfair. I see my job as the one true example of law enforcement in the system. Like the police are running amuck, judges are running amuck. [My job is] constantly reminding them that if they wanna believe that the law is colorblind, then they have to actually apply it. And if they're actually going to apply it, then that means my client goes home. You can’t use things outside the law against my client…. I actually had a judge once try to use the fact that a client of mine was from Far Rockaway as an indication as to the guilt or innocence of the charges. This was at arraignments. I said, “Well, in that case, you shouldn't trust me. That's where I grew up.” And the judge was kind of taken aback for a moment.
So I think the point of a public defender is to remind every player that there are people here. And if you want to indulge in this idea that our system is just and fair, let's try to apply it colorblind and let's see if they actually like it.
Defender It's to best protect your client. Your job is to advocate for the right disposition for your client for their particular circumstances. That looks different for everyone. So I'm trying to protect [my] clients' interests and advocate on their behalf, advocate for the right disposition for their case and help them as much as we can in all aspects of their lives.
When we get a client, we take on all of the client’s traumas and all of what's happening in the client’s life. It just doesn't stay within the criminal justice system. Sometimes they're homeless, and we have to try to find housing for them; or sometimes their SSI gets cut off because they're suffering from mental illness and they've been incarcerated for more than 30 days, and we need to try to get their SSI reinstated and try to get them Medicaid; sometimes they are jobless, and we need to try to get them job-ready. So my goal is to try to lessen the effect of the criminal justice system on their life overall.
If someone comes to me without a criminal record, my goal is that they leave without a criminal record. Sometimes it's hard. Sometimes it's very hard, and those are the worst cases for me. Those cases pain me; I become physically ill when a client comes to me with no criminal record, and I have to tell them that they are being offered a criminal disposition ….
So the job of a public defender is to ultimately advocate for the best outcome for the client. It's case by case, because everyone has different needs and everyone may have different collateral consequences. I work hard to try to get an outcome that I believe is fair.
Defender [A Defender’s job is] to try to force the system and institutional players to live up to these ideals. It’s very difficult to do. Within the context of doing that, I'm trying to get people home to their babies. I'm trying to maintain their freedom, physically and otherwise, so that they can live and get a job so that they can access the things that they need to propel themselves forward and not get stuck in a trap….
You're talking to one human being. They have kids, they have families, they have people they love. People tend to appreciate their relationships and want their relationships more than anything else. So part of the job is to try to bring some dignity to the process on their behalf. I remember once I had a mom say to me—her son was a long-time drug addict, with a decades-long history of a drug addiction; and he was not productive by anyone's standards. But, he had a mom that was around and that loved him, and he meant everything to her—she called me up and said, “I know he's a nothing to everybody else, but he's a something to me. Please do what you can.”
That just really hurt me; and I said, “No, no, no, no, no, no, no, you don't. He's not a nothing.” But she knew what she was saying. She knew how people saw him. She knew how the system would treat him. And all she had left was her currency as a mother, trying to connect with someone else on that level so that they would work for her son; [hoping] that there would be some respectability in the process; [hoping] that her son wouldn't just be treated as a nothing, as a no one; [hoping] that they would treat him in some kind of respectful and professional way.
That always stuck with me. That was like 10 years ago.
Defender When I started as a public defender, I remember our trainers saying that our goal is to keep people from getting a criminal record if we can; and if they have a criminal record, keep them out of jail if we can. Those were kind of like my guiding principles in trying to do the work.
I naively stated in my orientation that I was “here for the innocent who’s been wrongly prosecuted.” Someone said as a bit of a snarky retort, “Well, I'm here for the people regardless if they're innocent or guilty.” And that was obviously a much more profound view; I had a more naïve view. They could have been nicer about how they put it, but they were right. When you start doing this job and you see how things work, you're like, oh. A friend of mine had a similar experience and said that in an interview for a job. They [said that] they were inspired by the Innocence Project, and the interviewer said, “Well, this is the Guilty Project. Are you still interested?” And I get it.
[As I started practicing,] I could see, based on my own life, how unfair the system was. And so I think what I really meant by that was that the system as a whole is unfair. Our people as a people—not as an individual person, but as a people—are innocent. We were dragged from Africa, enslaved, raped, murdered, killed, [made to] labor, all of these things. And then they were like, “Okay, here's a straight narrow line. You gotta walk it; and if you don't, we're gonna rape, murder and kill you again, under color of law.”
So I just try my hardest to get people out of a bad situation. But … after a few years, you get the sense that this is a mill and you're part of it, even though you're fighting against it. The system is designed to work this way, and it's running smoothly based on the design…. I want to help people still, and I'm going to fight because I can make gains through case law and [make a difference] in an individual's life; but from a systemic point of view, man, it's bad.
Defender The biggest thing is to care. You have to care. If you don't care, you cannot do this job …. Let me say this: there are people in this job who care about themselves and the notoriety that they get and push the real purpose of the mission to the back. [For them, it’s like], “Oh, it's about me. I won a trial,” or “I saved this Black kid and his family.” No, it's not about you. It's about caring about the client. Nobody cares about you. It ain't about you. It's a selfless job. It's a thankless job. Sometimes you'll get a thank you. Sometimes you'll get a hug or a “thanks so much.” And sometimes you'll get a client that will just look at you like you did something terrible to them as they're walking out of jail and leaving the courthouse; and you feel like you've done all you can do.
But you have to care first. If you don't care, then don't do this job.
Defender A public defender or an African American public defender? … I think a public defender is there to gum up the work. They're there to put the brakes on this perception of justice gone wild. You have judges and prosecutors and cops who have their own sense of what justice is; and it's a public defender's job to step in the middle of that and say, “No, no, that's not going to happen.” Impose your sense of what justice is here. You're going to do the right thing, and I'm going to make you do the right thing, kicking and screaming if I have to.
I think the role of an African American public defender, or at least a public defender of color, is actually a couple of steps more. It's our job to educate our people; and when I say our people, I don't mean people of color. I mean our people, our [fellow] defenders. We're in these offices with white public defenders who swear they're liberal and say, “Oh, of course I'm [committed to racial justice]. Black lives matter. I'm a public defender. Of course I'm this; of course I'm that.” And they don't realize that they're racists. They don't realize that they have these microaggressions. They don't even realize these things because they think that they are so well-suited just because they're public defenders, which in and of itself is racist. They're assuming that only people of color are coming through the system, so they must not be racist because they're helping all of those people of color. I think as public defenders of color, it's part of our job to help them.
How does it feel to be a participant in the judicial system?
The majority of Defenders have mixed feelings about being participants in the judicial system. Others landed squarely on one side or the next. One Defender feels “disgusted” about being involved. Another Defender describes it this way: “It's tough; it's kind of like the presidential election. Who are you going to vote for? Are you going to vote for Biden, who's a piece of shit, or Trump, who's a bigger piece of shit, or just not vote? I feel like being a public defender in a way is like voting for Joe Biden. I don't agree with a lot of his politics, and I think he is just a middle-of-the-road, fucking moderate trying to pander to everybody to get by; and in the end, literally nothing will actually get fucking done, because you're out there trying to kiss the ass of people who fundamentally hate Black people.”
On the positive side, one Defender notes that being a public defender “feels great. It's one of the best things. And to do it while you're young—being a lawyer in your early twenties and mid-twenties—there's no greater feeling, because you really can make a difference, and the younger you start your career, the more experience you get and the sooner you will be able to develop skills to continue to help people. So, I think it's wonderful. It's even more so because of the fact that I am a Black man. I think it feels even more so, because it's also important for clients to see people who look like them and who have similar interests and backgrounds and can understand some of the battles that they are facing.” Another Defender concurs: “I'm honored to be a public defender. I love the work I do now. It's very complicated because on one hand, I can say that I'm a participant in a system, and I do participate in the system…. On the other hand, if I wasn't there, who would be there to try to minimize the harm and to try to change things?”
Generally though, as one Defender puts it, how public defenders feel “depends on what day you ask me. There are good days and there are bad days.” Most responses strike this chord with varying degrees. One Defender says: “On the one hand it can be really rewarding participating in it, because sometimes you do get people out of situations and you do help change people’s lives for the better. But then it also feels shitty because sometimes your hands are tied and there’s nothing you can do but take a terrible plea, or take a plea that’s going to result in somebody getting deported, or whatever it may be. Or kids become homeless because there’s an order of protection, or the kids are taken away from our clients, and all these things happen to our clients and you are a part of it. That sucks. It feels terrible.” Another Defender states: “Oh, a range of emotions. There are moments when it feels good. There are moments where it feels like I am complicit, because there is nothing really that I can do; the best outcome in the situation is not really good, and there's nothing I can do about that. Like I've done everything I could do. And then there are times where I just feel burnt out, that I just feel overwhelmed.” Adds another Defender: “It's truly a crisis of conscience. I think that you have to see the part that you play and how you also profit off the pain, as well as seeing how many lives that you change and how many families you touch. And so I try to focus on the lives that I change and the families that I touch—win or lose, good outcome or bad outcome—because you know, those ‘thank you’s’ are the most powerful thank you’s.” Says another Defender: “Some days I feel ashamed and other days I feel indifferent. There are very few days that I feel proud or happy.”
Sometimes, the good feeling comes from being able to relate to the client. One Defender notes: “Most of the time, I feel really good about it because I get my clients. I grew up with people like my clients. I have friends like my clients, [I’ve had] family members [and] dated people like my clients. So I really feel blessed to be able to do this job and provide this service for them.” Sometimes, the good feeling comes from appreciative clients. Adds another Defender: “You fight the good fight, and the best thing you can get is three years for a client. The client sees you fighting. Then you feel like shit because you have to tell your client, ‘You gotta go upstate for three years. This is the best [I can get]’ or whatever. The client turns around and says, ‘Thank you.’ You're like, what the hell is wrong with you? Did you hear what I just said? But the client is like, ‘You fought for me and you believed in me.’ That's priceless….”
The occasional (or constant) hopelessness comes from a recognition that the problem Defenders grapple with is far bigger than what they are able to fix. One Defender explains: “It felt gross. I mean, you get a case dismissed, you win a trial, you get an acquittal; and it feels great. You feel like you've given this person a new chance, but it goes back to the mindset of the person. They've been conditioned to live a certain life, not having a father, oftentimes not having a mother or father in the home, being exposed to violence, sexual abuse, child abuse at an early age; and then they're expected to function properly in society. So you might make a difference in their life in this case, but there have been countless times that I've gotten acquittals or dismissals and then see my client again, charged with something else. So it's like putting a band-aid on a dam that's breaking….” Hopelessness also results from seeing injustice manifest plainly. One Defender elaborates:
Sometimes I don't even know why I'm here. I really don't know what's the point. Sometimes I feel like I'm just a body sitting or standing next to a client, and the court and the prosecutor are just doing whatever they want. It's like I'm just a mouthpiece.
I remember there was a time when I was doing an arraignment. I was doing a hospital arraignment.7 So I'm there, and the prosecutor asked for bail. And then the judge sets bail, and I said, “Your Honor, can I be heard?”8 And he was like, oh shit, sorry. He didn't say “shit”; he’s like, “Oh shoot, Sorry.” And I was just like, “Thank you.” And he could tell that I said it with such attitude, so he's like “I said sorry.” And then he just reduced what he was setting by five hundred or a thousand dollars or something like that. And I know that was just for show. It was as if he thought, let me just make her feel like she did something. He knew he was going to set bail; I didn't even open my mouth, and he set bail. This is just what they do….
So some days I just think, why am I even here? What's the point? I'm not doing anything. I'm not helping. They just do whatever they want to do….
Some Defenders give little thought to the idea of participation in the system. One Defender notes: “I don't really think about it that much. As long as my focus is on my clients, then I don’t care about playing the game. I shuck and jive with these motherfuckers all the time. Put on a smile, ‘Yes, thank you’; I do all that shit, because it’s not for me; it’s for my client. And the fact of the matter is, the system is there and the system kills and enslaves a lot of people. Me not working in the system is not going to stop the system from working.” Defender responds to the question as follows: “I couldn't tell you. I don't consider myself a participant in the system. I consider myself outside the system. They want to incorporate me, but I won't allow them to; and I generally try to drag my clients out of it. Also, I don't want them to be judged by the criminal justice system because it's too racist. Unfortunately, I'm not successful in that all the time; but I got my moments.”
A couple more responses:
Defender It feels dirty sometimes. I mean, it's melodramatic, but sometimes it's dirty. There've been moments, you know, because you're still human. There are days where you really want to go home and you then realize that that's the system getting you to be complicit.
Like I remember my wife and I were going on our honeymoon. We were going to fly out Friday evening and I just had one thing to finish in the office. So I go into the office, I'm getting all my stuff together, and a client calls and has returned on a warrant in court. And I was like, if I go over there, it's gonna turn into this whole thing. And if I miss this flight, my new wife is gonna kill me. And I was about to just send a colleague over, which is what everyone would've done, and then I was like, I need to go, because as good as my colleague is, they don't know everything about this case. They don't know this client's background and history, and something bad could happen through no fault of my colleague’s. I have to go.
The system doesn't like that. The system doesn't like people taking ownership of their client's cases. It would much rather you waive your client's appearance, get bogged down with too many cases, and not give that service that's necessary to everyone. But sometimes it happens and it feels so gross and so nasty. I don't know what to do about that either, but oftentimes I leave needing a shower.
Defender It feels great. It feels great because it was personal to me. Like I was born and raised in [the borough where I practice]. I live in [this borough]. I represent the people of my community. When I would sit in arraignments and interview a client, and the client tells me, “Yeah, that shit happened on [such-and-such block], I know where that is. I know where it is, because I live here. [A client’s like], “Yo, you know that bodega on the corner?” “Yes, I know, because you gotta look over here; and there’s a staircase over there. You gotta go up the stairwell, turn here….” I don't even need Google maps. I don't need an investigator a lot of times because I know where it is. Or even if I didn't know where it is and I went and looked it up, I’m like, “Oh yeah, I know that area.” It is a connection that I make with my clients. If I talk to my client and I say, “Yes, I know where that is,” it is something that clicks, because I am able to connect with them on that level.
Taking that journey with a client through the system is sometimes good and a lot of times bad; but I truly enjoy all of it. Stressful, horrible at times, yes. But I truly enjoy the fight. I truly enjoy the connection that I have with people that are from my community. It isn't like somewhere in [a borough I don’t live in]; I have a direct connection working with people in the system that affects my community. Maybe I'd have a different answer if I worked in another borough; but because it has been such a close connection to me where I grew up, I have enjoyed it. It is completely stressful, but I don't regret it. It has been a great experience being in the system.
FN 7: A hospital arraignment is an arraignment of a client who is in the hospital and is too unwell to be brought to Criminal Court for a timely arraignment. With hospital arraignments, the client is most likely charged with a felony.
FN 8: When a prosecutor asks for bail, both parties are supposed to be heard before the judge makes a determination as to whether or not to set bail. It is illegal for a judge to set bail without first hearing from the defense attorney.
How much power do public defenders have in the criminal judicial system?
Defenders range in their perceptions of how much power public defenders have in the system. Some Defenders think that public defenders have little to no power. One Defender answers the question this way: “Very little, almost none.” Another Defender notes that it “depends on the public defender. I mean, I will say in general, not much, but I can definitely say I could see from some of the stuff that my white colleagues got away with that race still plays a large role even as a public defender in how you move within the system.” One Defender laughs heavily before replying: “You got none. Zero. No power. I’m sure everybody’s probably told you the same answer. Zero. Nada.” Another Defender responds: “Individually, probably very little…. It seems like very little most of the time, and I hate to say that because [the next question is] why am I doing this?” Adds another Defender: “When I think about power, I think about the ability to control the situation, and I don't really think that public defenders have that much control over a situation. We don't control shit with the prosecutors; their supervisors decide what they want to decide.”
Some Defenders think public defenders have a more appreciable amount of power. One Defender states: “We have some power, because we have law degrees. We have power over our clients. In some ways, depending on your race, your sex, your relative privilege, you can wield some power mostly around your client, with what happens to them.” Another Defender explains: “I think most of the power that public defenders have is in how they treat their clients. I think that's where a lot of the power that I have is: to explain things and treat people in such a way that they feel like they're people…. If you're a public defender that treats [your] clients like real people, I think you could be extremely powerful…. If you're able to treat people with compassion and respect, I think there's power in that.” Adds another Defender: “I think that we also have power. If we weren't there, can you imagine what would be happening in those courtrooms? So we have quite a bit of power…. I have the power to not have cases heard. If I'm not there, then these client's cases aren't going to be heard…. It's like the gears of injustice are just grinding, and we're there to stop them or slow them down as much as possible.”
Some Defenders characterize choosing to try a case and not accepting a plea as a measure of power. One Defender explains: “I do think we can hold substantial power when we fight for our clients. If we go to trial, I think that's our time to really level the playing field.” Another Defender concurs: “We can control [whether we] want to fight a little harder to try to get something different…. For me, one of my favorite parts of the job is trial, because that really gives a client the ability to say, ‘Fuck you, judge. Fuck you, prosecutor. Prove your case.’” Adds another Defender: “I think we have a lot of power, especially if you’re committed to zealous advocacy and bringing about effective representation for your client. I think you can be very powerful…. When I see the suppressions and acquittals by my colleagues, I think we have a lot of power because there are a lot of my colleagues that do fight and that are committed to this work.”
Other Defenders think that public defenders have more of a collective power. One Defender states: “They have as much power as they want to have. I don't believe that we're limited at all. In fact, one of the beautiful things about being a public defender is … that you can go to bat for your client; and if something happens, [your public defense office] is going to come out and come to your defense. It's going to get you out of that jam. It's going to defend you. So I don't understand this thing about being timid as a public defender because you have a whole organization that's going to back you, especially if you are doing the right thing, if you were doing your thing for your client and your mission was to do your job. So I was fearless against power as a public defender because I had all of the protection in the world, I felt. I think it's quite different if you're on your own and you're in private practice. If something goes wrong, you're on your own. You don't have [a public defense firm] coming to get you out of jail or to bail you out.” Another Defender agrees: “Public defenders as a whole, I'm sure we have more power than obviously the individual attorney….”
This collective power can manifest in other ways. One example, as one Defender describes, was around organizing on issues regarding immigration and ICE warrants during Donald Trump's first term. “I and my other colleagues have changed some of the ways that we practice, [such as] how we handle our immigrant population when it comes to immigrant warrants and dealing with ICE. I'm very proud to say that my office was instrumental in getting those changes made.” Another Defender explains: “The deck is stacked against us, but I feel that good public defenders that really fight for their client really do make a difference and are able to change laws. It might not be on the state level. It might be that you have to appeal something a couple times to get the law to change. So I feel that we have great power that’s not often recognized.”
Some Defenders lament that this collective power often goes untapped and underutilized. One Defender elaborates: “The unfortunate thing is that the power that public defenders ultimately have isn't recognized by public defenders. I feel we have a lot more power than we allow ourselves to utilize. I see public defenders routinely devalued, their advocacy routinely devalued. A lot of the public defender offices do a lot of cowering to judges, because attorneys will appear before a judge multiple times, so they have to then worry about the next client that comes along. So the heads of offices are playing politics, and some of them are losing abysmally at these political games… So it would appear that we don’t have as much weight in the system….” Another Defender gives an example of unrealized potential power:
I remember we were in arraignments [one night] and the judge was just being mean to all of us, just putting clients in left and right. This was in 2019. I suggested that we do not waive the reading of the rights and charges.9 My supervisor’s response was, “No, but if they do that, the judge will be so mad!” and I'm countering, “Yeah, that's all we have though. If we know this judge is going to keep putting our clients in no matter what we say, we can minimize that damage by making them read the rights and charges on every case. Then a new judge will come in a couple hours and those people will have a fair shot of getting out.” No one wanted to join that rallying cry, and I was concerned that if I was the only one who did it, it was just going to make my clients even worse off.
Other responses:
Defender I feel that defense attorneys don't often utilize their power. I think defense offices as a whole often do our clients a disservice by not being willing to take more stands. And I know they're like, “Oh, we have to worry about our clients”; but I'm like, we absolutely do have to worry about our clients, which is why taking stands early and loudly can be beneficial to our clients. For instance, I remember when the whole stuff with ICE was initially happening, with ICE appearing in the courts. Initially, management wasn't loud. Management wasn't in the streets. It wasn't until a couple of lawyers took to the streets saying, “Hey, wait a minute! What the fuck?!” and literally shut shit down. I participated in an attorney walkout where everybody was like, “Yeah, not today.” We got on a text message chain, and we said, “Everybody leave. Whatever you're doing right now, walk the fuck out.” And we did walk out.
Now I'm not saying the way to go is to always walk out of court. But we have access to our clients in the community in ways that a lot of people don't. We have an inside knowledge of the criminal justice system that a lot of people don't. So it always saddens me to see shit like when “progressives” are sorely losing wars of public opinion. Take bail reform for instance: we had people who were really starting to see what the criminal justice system is, which is just about caging poor Black and Brown folks. They really began to see the horrors and the devastation that was happening with the criminal justice system, the amount of deaths on Rikers Island. Then all it took was an aggressive campaign for a good couple of months from NYPD and some bitch-ass prosecutors who don't really know their asses from their elbows to roll back bail reform.
I just don't know how we continue to fuck shit like that up…. Because we have unique access to our clients and their unique experiences, we have decades and decades and decades of experience to draw from.
Defender Not that much. Not that much at all. There are a lot of things we can't do, and the things that affect the clients the most are the things that are a lot of times the things that we cannot do anything about. In [my borough], they give orders of protection out like candy, even on stupid cases. I prep my clients ahead of time. I say to them, “Look, I'm going to make the argument, but I'm telling you that this judge is probably going to issue this order of protection. And then when that makes them homeless, or the client asks me, “Well, I'm the one who pays rent. Do I still have to pay rent?” [Then what?] There's literally nothing I can do about it. I'll make all my arguments. But at the end of the day, this judge doesn't want to be the one on the front page of the newspaper that says, “Person killed because judge wouldn't issue order of protection.” And the paper’s not going to say that; [judges] are just being cowards.
This is interesting because in [the other place I practiced], that county is significantly more conservative than [New York City]. Yet there, you can actually make an argument about an order of protection and they'll listen to you. And a lot of times they'll issue limited orders of protection, especially if the complainant is right there and they check the ID and they let them speak. “Hey, do you know this person?” “Yes.” “Are you afraid of them?” “No.” “Do you want an order of protection?” “No.” “Do you want them to be able to come home?” “Yes.” “Okay. Limited order of protection issued.” Whereas in [my borough], you can have all of that and the judge is like, yeah, I don't care. I know better than you. I know what's best for you, even though you're an adult and you can make decisions for yourself. I know what's best for you. And I'm going to issue this full order of protection.
And then the clients get mad at you; the complainants get mad at you. Everyone's mad at you. “Oh, y'all put this order of protection on me!” And I’m like, “Let's check what the ‘y'all’ is. Because last time I checked, I didn't arrest you. I didn't ask for an order of protection. I didn't set bail on you. I didn't do any of that. Last I checked, I'm the only one here trying to help you or get your side of the story [told]. The cops might try to get your side of the story, but only so they can pick and choose what to write down so they can use that against you.”
So I don't think we have a lot of power at all.
Defender (Laughter) None! Very little. I don't know if it's just public defenders, as opposed to just defense people. Stuff is stacked against us. We have to hope that our clients tell us what happened, that the DA is forthcoming with paperwork, that the cops are forthright. I mean, we're just relying on everybody to be forthright; and people are human. So whether they're not forthright purposely or inadvertently, who knows; but so many things are stacked against us. Nobody likes us in the courthouse, including our clients. The power is so small.
I remember one time having a client who rejected a plea deal, and then he wanted it back…. So I had to go beg an ADA for something back. I was really mad, but I had to do it because this is my job. So I took the time to yell at him; I said, “I do not like asking white people for shit, and here you are making me go beg this white person for something that you should have said before, and now you're making me do this. I'm going to do it. But I have to yell at you for five minutes before I can collect myself and go talk to that person!” (Author laughs) So I did that, and I went and did whatever I had to do. But I think the only time we have power is when our client is innocent and it's clear as day; and even then they figure out a way to spin it so that the power that you think you have is not as great.
Defender In terms of the big picture, I don't think we have a lot of power. We get our funding from the state, so it's like you're trying to defeat the people who pay your bills, you know? So we don't have a lot of power. Now if we had independent money, we’d have more power; but we don't have it. There was a book that came out many years back called Poor People's Movements: Why They Succeed, How They Fail. It explained that part of the reason such movements failed was because] they get funding from sources that they're trying to overthrow….
[The Powers That Be] push back so hard if we make them do their jobs and make them follow the law. I mean, they really hate us when we do that. They really hate that because they really want us to just be there. Don’t be a real lawyer to your client; just be there. That's why they'll say, “Oh, have your colleague cover [your case]”, because they just want a body there so they can then say, “Okay, he had a lawyer; we followed the Constitution; we’re doing everything we’re supposed to do.” But we're not supposed to say anything, and we're really not supposed to fight the case because that means we're making them work. So I think we have power in that sense that we can make them work.
Defender I'll say for New York—I went to a law school out of state, and I know people who have since spread throughout the country as public defenders—I don't believe that we have as much as we should, and we don't have as much of a voice as we should. We don’t garner the respect that we should, respect that I know—anecdotally—that other public defenders across the country have…. I think that there’s a respect level that gives them a voice and a credibility that my brother and sister public defenders throughout New York lack. This has nothing to do with skill and everything to do with the perception of public defenders specifically in the City of New York….
I also have friends that are on the other side, who are prosecutors outside of New York City; and just the way that [public defenders outside of New York City] talk about their adversaries indicates a different relationship than what New York City public defenders have with the New York City prosecutor's offices and the judiciary. That level of respect, coming in on an equal footing as an assistant district attorney, having the judge's ear, allows for public defenders outside of New York City to be more persuasive, versus always feeling like they're at a deficit because there's just a lack of respect and automatic mistrust of public defenders by the district attorney's office and by the judiciary in New York City.
Defender I think as a united force, public defenders have a lot of power. I think that—and I can only speak from my experiences—as a Black woman public defender in New York City at [the organization where I work], which is a white, liberal-run organization. Most of my power came from me and the other Black attorneys standing together for the good of our community and our clients and ourselves.
I think that I was more powerful in the courtroom when [a Black colleague] stepped in there, even if you weren't second seating me and you were in the audience; or if you were somewhere off talking to a client and I needed some information or some support. A lot of times when I felt powerless as a Black attorney in New York City came from the atmosphere; that atmosphere was sometimes in the courthouse, but was also in the office.
Defender So, speaking from my experience here, when we collectively stop accepting the BS offers and start making the ADAs do the work that they're supposed to do, that's when I found that we get better offers because nobody wants to deal with the mountain of paperwork that comes with all of what they're obligated to do. I think we all push, to be quite honest. We all push and we push the envelope as far as we can, and then we come back and we push again. But collectively that's what we have to do if we’re going to effectuate any sort of real change…. It has to be an across-the-board and a consistent push; you can't have me over here taking pleas to everything and anything, and [then] you over there fighting. When they say, “I'll give your client a violation,” and you respond, “No,” and they counter, “Well, [this other public defender] took it; why don’t you?”, [that makes us look weak].
I’ve had prosecutors say that nonsense to me too; and I'll respond, “Well, guess what? That other client's attorney is free to do whatever the hell they want to do. But just because they took that offer doesn't mean I have to. My client has the right to refuse. So I'm refusing on his behalf. Get out my face.” (Author laughs) I mean, literally one ADA was up in my face; and he just didn't understand why [my client would not take his plea]. And [my position was], “Listen, do your job, and let me do mine. Get out of my face.” He didn't appreciate that too tough. (Author laughs) …
FN 9: When a client is arraigned, there is an agonizingly long list of rights and charges that the client is supposed to have read to him or her before proceeding with plea bargaining, bail arguments, or anything else. To skip the lengthy delay, public defenders generally “waive the reading of the rights and charges but not the rights thereunder.”
People have been talking about abolishing prisons, abolishing police, abolishing courts, abolishing the system. What do you think about that?
The topic of abolition yields varied viewpoints among Defenders. Some responses from Defenders who favor abolition:
Defender I was on the fence, but now I wholeheartedly agree…. I think people say this system is better than nothing where people just run amok and have no consequences. And I think abolition should mean creating a better system, not saying, “Well that would be too hard.” We created this system, right? We can create another one. It will take trial and error, but this system is horrible. It's probably like this all across America. I know it definitely was down in Dallas [where I interned one summer in law school] and now it is up here.
Defender I say yeah because, given what exists now, why wouldn't we say abolish the jail system? Why wouldn't anybody with any sense of humanity say abolish all this and start from scratch with the goal of rehabilitating folks? To bring them back into the community to be really good citizens and understand their worth and how much value they have and how much they have to contribute? It sounds idealistic, probably. But this system is definitely not working. People come out angry. People come out with less hope. People come out feeling that there is no change. So there's no real motivation, no gearing up with excitement for what's in store for them in the future.
Defender I am a strong supporter of the abolition of prisons, the detention centers, jails. I think that we need to institute the practice of normality, which they practice in Nordic countries. I think that needs to be applied. It’s restorative; it’s rehabilitative. It really encourages reentry and reduces recidivism. The [basis of the principle is that the] loss of liberty is punitive enough, so now let’s work on the rehabilitative aspect of returning someone back to their community.
Defender I'm with it. My attitude is, when can we do it? Tomorrow? Let's abolish the system. I'm at that place where that's what I want people to be thinking about. I'm thinking about it a lot.... When I was practicing as a public defender, I practiced with the mindset that this is the way things always have been; this is the way things will probably always be; if there's any change, it will be marginal change; and we've gotta do the best that we can with it. And I think the more that I have learned and continue to learn about abolition, the more it makes me realize that we can think a little bit more broadly.
I think as defenders, we see all sides of the argument. I think part of the narrative that maybe makes some people feel uncomfortable is, oh, are you just assuming that there isn't harm that happens, that there aren't bad things that happen, that there aren't people who make bad decisions that hurt other people? I think as defenders, we see that part of it. I mean, we're in it. We see that. I think for me, it's possible that when somebody causes harm, they can be accountable in other ways that doesn't involve imprisonment, that doesn't involve marking them and excluding them from participating in our society for the rest of their lives. There’s a different way of thinking about [criminal law and justice].
So I really appreciate what abolition is about and the folks who are embracing it. And I think that's where we need to be, because what we have now simply doesn't work.
Defender All of that makes sense to me, and I'm in favor of those ideas. I don't think the word “abolish” entirely captures the nuance and the complexity of what all of that means; but certainly, I would be happy to live in a world in which my job does not have to exist…. I have certainly seen other models for how a citizenry can engage with their government; this is not the only way to do things. There are other ways of having regulation and enforcement of consequences for committing a crime that do not look the way they do in this country. We could imagine other things.
Some responses from Defenders who are not in the abolition camp:
Defender I'm sorry. I'm not really for that. And the reason is not even because of law enforcement in my family; it is because I have been a victim of a crime. I had two people who were about to break into my house. I called the police—and, I'm not going to lie: I used the fact that my dad was a cop—and they came and they prevented that crime from happening. Who knows what could’ve happened if they had gotten into the house, if I would still be alive today or whatever the case would be? They were two kids that were hyped up on drugs. They went through the car and then they got into the garage, and they were trying to come into the house. This is happening and I'm seeing it. So I've been a victim of that. My brother has been robbed and my mom has been robbed. So, we need police. It's like that meme that says, “Oh, someone's calling 9-1-1 and they're saying, ‘I'm being burglarized’ or ‘I was raped.’ And they're saying, ‘Oh well, God be with you. Like whatever, the police aren't coming.”
I don't think that we need to get rid of the police. I think we need to figure out a way to fix the problem, whether that is getting rid of some of the bad apples or something else.
Defender I don't think abolition is the way. What I would say is definitely defund the police. You have to defund them. I think that the word “abolition” scares people off. People don't like that word; it sounds like the goal is to get rid of everything and that there will be anarchy and chaos. No, that's not what it means; but I think that we've been saying reform for decades and nothing is getting reformed, so maybe we should change up the word….
I think that you can still have prisons, but the way they are run is cruel and unusual punishment. I think it violates the constitutional rights of everyone in prison. I think prisons have to be run better. I think that there does not need to be as many people in prison. I don't think prisons need to be privatized either. But I wouldn't say abolish them; you just have to totally tear them down and rebuild them. Same is true for the police; totally retrain them. Police being trained in a matter of months is ridiculous. It takes longer to become a barber than it takes to become a police officer. Police officers are charged with knowing the law and applying it on the streets. Attorneys go to law school for three years; police officers need to study the law for a similar period of time, not for a couple months. And then they’re charged with having a gun? The police training is laughable. It's disgraceful. It has to be better.
So I'm not saying abolish the police, but definitely defund them. It's ridiculous that they have what I think is like four times the budget of the next biggest agency in New York City.
Defender I have represented some really scary people. It sounds hard to say that; it sounds awful to say that. But I can give you an example of a client that one of my colleagues represented.
This client was charged—he was a mandatory persistent felon10—with rape in the first degree. It was in Crown Heights on Eastern Parkway. I actually remember it because I was watching some of the trial. He had broken into a woman's apartment and raped her; and she didn't know that she was raped because he choked her, and she passed out. When she came to, she had been beaten and raped; her apartment had been broken into; things were stolen, and everything under the sun. It came out during the trial that his prior [convictions] were also for the same thing; and while he was in prison, he had also raped two men.
If prisons were abolished, where would he go? I mean, I wouldn’t want him next door to me. As awful as it sounds, there’s a reason why there are prisons; and he is a textbook example as to why there should be prisons. I can’t imagine that if he were out, he wouldn’t do something like this again.
But at the same time, I also think that there are people who are in prison for nonviolent crimes who really don't belong there. I think that there are people who are there even for violent crimes that deserve a chance and haven't gotten it either because of the perception of what they did or because of public pressure. I think that there's got to be some sort of median. I don't necessarily know if I know what it is, but I definitely think that the idea of abolishing the entire system when there are people like that client scares me.
Defender Yeah, I have mixed feelings because there are people who need to be in jail. Let's be real. The Closing Rikers campaign, I never saw that happening. You can decrease the population in Rikers, but you're still going to need these community jails, these other types of facilities and things like that.
A reform of the entire system? Absolutely. Abolition? I can't see it. Maybe that's just because I've lived all my life in a country where prison is what we do. But I do think the system needs a complete overhaul. I do love the move toward compassion, alternatives to incarceration, community courts … restorative justice circles, things like that. Absolutely. But I don't see complete abolition in the sense that we will just do away with prisons. I don't agree with it; I don't see it. I think there has got to be some medium, like a happy medium. There's never a way that works for everybody.
But I do think prison reform is necessary. That would necessitate more money for resources. Just like they say “defund the police” doesn't mean just get rid of the police, but it means take some of those billions of dollars and put them into healthcare, mental health, first aid and community programming and things for people to do as opposed to committing crime.
So there would have to be funding for alternatives so that those alternatives can actually be viable options. That's what I would say needs to be a focus as opposed to complete abolition.
Defender Man, listen: if they do all that, fuck this lawyer shit. I'm getting me a gun and I'm going to start robbing all the punks. Are you kidding me? This is what kills me about liberals: liberals make the mistake of thinking that Black folks are liberal. We're not; we're moderate. We're in the middle. The way we look at it, we look at liberal white folks as hippies and the conservative white folks as crazy and racist; and the liberals are all racists too. We're in the middle.
The one thing that people don't get is the beauty of society and the workings, whether they're perfect or not, make it so that everyday living changes. Look, if somebody tries to break into my house, I call the cops. I don't gotta go in my house and get my rifle and blow the dude away. I don't have to do that. I can, but I don't have to do it. It's an elective I could choose. And there were times in our society where you didn't have those options; and people don't get that. Not everybody is in trouble because their daddy didn't raise them or they were hungry. It's not that cut-and-dried really.
I say to people all the time, “All of the Black cops, Black sanitation workers, Black firefighters, all of them grew up in the projects with our clients. They all grew up in the same blocks, the same tenements, went to the same schools, come from the same level of economic standing. Some people went one way, and some people went the other. There's a certain level of personal choice that people still have, even when they don't have money or don't have resources….
What’s ironic is that the same little white chick that wants to abolish prisons has no answer for what should be done to the person who victimizes her. You ask her, “Okay, what do we do to the dude that whips your ass? What do we do to the dude that rapes you? What do we do with him? Send him back home? Whip his ass? What do we do? We gotta do something to him; he fucked up. So you are in pain; your life has changed in ways that you can't dial back. What excuse are you going to give him? What pass are you going to give him for what he did to you?” And she can't come up with an answer. If somebody kills your family member, [what do you do?] I've seen some of the softest dudes [harden] real quick because something like that goes down. It changes things. People are just not being realistic.
Do I think that the wholesale incarceration of Black men, where our little 12% became 50% of the prison system in this country, is right? No, that's crazy. There's something wrong with that…. But I don't think the system needs to be abolished. What I do think is that we need to be more honest about why people are entering into the system…. I wouldn't abolish the criminal system; it's necessary. It's been here for centuries, and it's always been here because people fuck up. People get selfish, people get impatient, and people get desperate; sometimes they just want to party and do what they do. I don't want that dude around. The bad dudes on my block, it was a good thing they got a little timeout; if they hadn’t, there would have been more bodies.
Defender I think that's ridiculous. You go over to Adam Clayton Powell Houses, you go over to East New York, you go to places where reality exists, and you’re not going to hear anybody over there saying, “Oh, they need to get rid of cops. They need to get rid of prisons.” You need prisons. Some people need to be locked up….
I tell you this much: none of my clients need to be locked up. (Author laughs) [But] some people think that because you're a public defender, you want everybody to be out [of jail]. No; that's not true. I want my clients out. I'm going to fight like hell. I'm going do everything I can within the law to keep my client from going to jail; and I've defended everything from traffic offenses to second-degree murder. There's no limit on what I've done throughout my career; and for every single one of my clients, I have fought tooth and nail to make sure that they don't go to jail. So don't get me wrong.
But what I am saying is, to say that a society like ours doesn't need cops is ridiculous. What we need are good cops. That's a whole ‘nother topic of discussion. But getting rid of the cops or getting rid of jails is ridiculous. Some people need to be in jail. But don't inundate our jails with people who commit non-violent offenses that you're piling on communities of color, that you’re decimating these communities with, getting rid of all the parents, the husbands and the wives, and locking them all up on nonviolent BS.
Now I'm a firm believer that if you haven't committed a violent crime, that you probably shouldn't be locked up. I have a very difficult time saying that somebody who commits an economic crime should be locked up. But if you're out there raping and robbing and assaulting and murdering, I don't want you near my neighborhood, that’s for sure. And believe you me, in East New York, they'll tell you the same thing: “I don't want them in my neighborhood. Lock them up.”
Some responses from Defenders take more balanced approaches and speak to other concerns:
Defender I go back and forth on that…. Obviously people need police, because we want somebody to help us when we need help. Whether or not the police should be patrolling areas and creating crime by pretending to be an addict to get drugs is another matter. I live in suburbia. I've never seen the cops on my block ever, ever. Sometimes their presence makes people act a certain way. So I don't know if the police should be walking around the street. Does that really give people a sense of security? I guess for some people it does; for me, no….
I kind of feel that there is some stuff we, but how much of it do we need? So we need police, but how much do we need of them? We need courts, but how much do we need of them? And I feel that with courts, it's somebody imposing their belief on you…. In family court, their attitude is, “You hit your child, so I'm gonna take your child out of the house.” Why the fuck can’t I hit my child? If my child's committing a crime when they're 16, then you're going to take them away. So here I am trying to deter some behavior, but then in the next breath you’re telling me I didn't do it correctly.
I feel like there's too much judgment, and I don't know whose morals we are using.
Defender I mean, to be frank, one side of me says to burn it down. When you think about it, if I'm starting from a position that the criminal justice system is inept and just can't work, abolishing the criminal justice system is the right way to go…. But when you talk about abolishing [the system], do we replace it with something else? Like what comes after that? I do think abolishing the criminal justice system would be a good place to start. Abolishing police? I think in our current environment, that may be a good place to start too, but certain things have to be replaced. What concerns me is, what do we replace them with? … I think abolition of this system makes sense, but I think we first need to understand what comes next, if anything.
Defender For me, it's not a for-or-against; I think there's much unlearning that has to be done on both sides…. I think because of how society has been set up, and we have been taught certain things to be true, there's a certain aspect of unlearning that has to be done. I feel that often, [those of us] in the legal world get caught up in our legal bubble, and we miss some of the key players, which are our client population. We often talk about what's best for them without ever talking to them. (Author reacts) I mean, where are we getting this perspective from that this is best?
I don't think anyone wants to address the unlearning of the reliance on the criminal justice system that we've kind of instilled into some of our client population. I think the juvenile system is a great example. When I first learned about PINS11 warrants, I'm just like, why would any parent ever do that? Where do they get this idea that the only way you could control your child is by coming to the court and handing over your rights to a judge? And when you start off putting people into the judicial system [at such a young age,] or when you are told that the only way to solve your problem or get the help you need is through the people within the criminal justice system, [something is wrong]. So there's so much unlearning that would have to be done in our community for any idea of abolition to exist.
Usually, these little bleeding-heart liberals talking about abolition don't live in this community. They don't understand the psychological damage that's been done. And oftentime, they don't even recognize how they play a part in creating crutches and deficiencies by how they even deal with our client population. There's assistance, and then there’s the attitude amongst many liberals doing this work towards our clients that says, you're too stupid or too damaged to ever guide and control your own life. But for me doing everything for you, you wouldn't know what's good for you. That's our social worker; that's our defense attorney…. They see it as being helpful, holding our clients' hands in a particular way. I see it as, you're not preparing them for the real world. They’re telling our clients that they're not smart enough to take care of themselves. They're not smart enough to figure things out. They're not smart enough to stand on their own.
So if we're talking about abolition, we also have to abolish a lot of the thought processes and unlearn a lot of ideas about what people can and can't do on their own, when they need institutional assistance, and to what extent are we willing to invest the amount of money we would need to break a lot of the generational psychological damage that's been done on people in certain populations and communities and environment. I don't know.
Defender I think for most of us who are talking about abolition right now, we're thinking about it through a policy framework. I think that's dangerous. I think historically what I've seen in this country is that when you move through these systems, they just transform. It's like a chameleon; it's going to change. So we are demanding abolition of prisons, jails, police, and [the whole system] right now. But the powers that be are already developing the next system. So as we're calling for this, we're going to start seeing wins in this area. I guarantee you the next 15 to 20 years, it's going to change. And that's only because the new system that's already being built is going to be capturing Black people in a new way.
So I think without a radical change in this country that is not just through policy, that is actually something that flips the table of power, flips the table of capitalism, flips the table of Black subjugation, yes there will be the abolition of these systems, but we're going to be demanding abolition of something else shortly thereafter.
Defender When we talk about abolition, we have to make sure that before we abolish it all, we have some sort of consensus of what things should look like when it's gone. That's not to say that I don't believe in any of it, and I don't think it should all go to hell; I do [support abolition]. But I was reading an article the other day about a young man—it was in the New York Times—who I believe was from California. He was incarcerated for something he did or didn't do, I'm not sure; but while he was doing the time, his mother was supporting him. [One day], his mother was raped at gunpoint. (Author reacts) And she never told him until he got out of prison that while she was coming to prison every weekend or [every few] days and visiting him and going to work, she was also going to court to testify against a man who had raped her at gunpoint….
His first thought, having heard that after having gone to prison and endured everything he had endured, was, that guy deserves to be behind the same prison wall as I was. And this was a larger conversation he was having about electing Kamala Harris, despite her background as a [high ranking] prosecutor in California, and about how conflicted he is about abolishing jails, prisons, the whole system, both knowing a “victim,” which is his mother, and having been the “accused.” …. The conclusion that he came to, while it may have been different than mine, solidified my conclusion.
I think that we need to abolish what we have now; and when I say abolish, it can't be reformed. It has to be completely dismantled like a bad relationship. They say if you break up with something and it comes back, then it was meant to be; but you gotta let it go. We have to let it go. And then in the need for [a replacement], we have to build it however we build it; and I don't have any ground rules or plans on what the architecture would look like. But before we abolish it, we have to at least have the ground rules, because if we don't, in my opinion, what we run the risk of is what we see happening now with Trump supporters and everything that's going on now. These people are moving as if they're above the law; and people of their hue and in their position have largely moved above the law in this society, in this country. But if there is nothing, then I think they will become more emboldened, and we will have to respond in like manner.
You have all these liberal white folks who are talking about abolition. You have some Black folks as well, but the conversation is always largely led by white liberals. And that's just because they are the majority. It's not because we aren't any more intelligent. I'm not suggesting that the Black people who are abolitionists don't have a say, or that they're somehow being led by these people. I'm not saying that. I'm saying white liberals have the floor in the abolition conversation. And the conversation to create a plan for what it looks like once it's abolished shouldn't be a conversation that they lead. I think it should be led by people that are affected by it. Some people will say, “Well, it should be led by Black public defenders,” but Black public defenders still have a certain amount of privilege in this regard. It should be led by the very people that are affected. And that's not always the case. We'll have these grandiose acquittal parties in our offices; and I've never gone to one where the person who was acquitted was at the party. (Author reacts) So then you have to ask yourself, is this conversation really about the acquitted?
So I'm for the abolition conversation. I'm for the abolition movement, because it's more than a conversation now. I'm for the actual groundwork that it takes to abolish. But the conversation needs to be led by people like this guy who wrote this editorial, because he's got something to say. He's been directly impacted on both sides, the prosecutorial and the defense side. And so those are my thoughts on this subject.
Some Defenders more so speak about abolition as an idealistic but unrealistic goal:
Defender I see it as a lofty goal. I know that when you read into it, abolition does not mean just like, Poof! Vamoose! it’s disappeared and there’s lawlessness. I know that’s probably what a lot of people, when they hear that, are thinking; they’re like, “Well, what’s gonna happen when there’s no cops, no this, no that?” I think it’s a lofty goal because it would be great if we could figure out a way—and I say “we” as a country, or “we” even as the world—to treat people humanely and see issues as a community issue and not just as “us versus them.” But I mean, I guess that’s the jaded part of me, because I don’t see that ever happening.
Defender What's nice is that there are so many models to look at, so many different systems in the world. You see how it could work, but so much has to change for that to happen in the United States. We don't live in a vacuum. We can’t just say, “Let’s just get rid of the prisons,” because then we gotta address other issues that are leading to the prisons. We have to address crime; we've got address poverty. We have to address race. A lot of other countries, countries that are predominantly one race, don't have the same issues. For example, when I went to Liberia, everybody's Black. You don't feel that weight of being Black. You feel your Blackness when you're in a country where you represent the minority. When you're the majority, you don't feel that; it's just an experience that I can't even put into words.
So when we're there in those countries, you talk about class, not race. But the United States has this issue with race that is so systemic that, if you can't fix that, or if we don't figure out how to resolve that issue, we can't resolve the criminal justice system’s issues…. So, I believe that abolition is possible if it were possible to eradicate the cultural lens of race in the United States and the culture of poverty in the United States. Is it probable? No. Is it possible? Sure.
FN 10: A mandatory persistent felon is a person who was convicted of two violent felonies within ten years of his or her newest conviction of yet another violent felony.
FN 11: “PINS” stands for “Person In Need of Supervision.” This is a designation for minors who are deemed incorrigible. Parents and guardians can file a PINS petition against their child, as can peace officers and police officers, school officials, or someone the child injured. For more information, see the NY Courts website: https://ww2.nycourts.gov/COURTS/nyc/family/faqs_pins.shtml#pi4.
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