Topic: Defense Counsel

As New Orleans’ criminal legal system has risen to the challenge of the Coronavirus, we’ve brought resilience lessons we learned during Hurricane Katrina to bear:

Knowing Where People Are

After the storm, thousands of people went without legal representation for months because we simply couldn’t track people. There were two tourists from Ohio, for example, who had been arrested on public order offenses and spent more than a month in jail.

This time around, we have a case management system, and our office is funded, albeit still so poorly that we are being forced to furlough some attorneys. But we have been able to immediately track people and start litigating to help the most vulnerable. It’s a huge difference from the ad-hoc tracking system we were using in 2005.

Seizing the Moment To Reduce Our Jail Population

Our pre-Covid jail population was 1,052, and we’ve since reduced it to 799—a level not seen in New Orleans since the 1970s, although if we were incarcerating people at the international rate, we’d have just 137 people in our jail, so there is still a long way to go for our criminal legal system reform efforts.

Thanks to our tracking system we’ve been able to prioritize getting the most vulnerable people out of jail. Initially, we tried using immediate release orders, which we had developed after Katrina and which were common practice whenever a storm was coming. Since we weren’t facing a hurricane, we had to show why this crisis warranted emergency releases. But we could litigate straight away.

Building Coalitions and Constituency For Reform

When you have audacious goals for criminal legal system reform, three things get in your way: resources, processes, and values. Values are the most difficult to change.

New Orleans has been the recipient of more than $3.5 million in funding from the Safety and Justice Challenge since 2015, with the goal of reducing the city’s jail population, and we were already making good incremental progress.

There’s no doubt that the COVID-19 crisis has spurred that huge further reduction in our jail population, but it’s the coalitions and relationships we’ve been building for some time that were instrumental in helping us spring into action, this time around.

A big lesson we learned after Katrina was that if you look alone, then folks with the power to do something will readily ignore you, whereas if you have constituency, then your chances for success go up exponentially.

Some of the criminal reforms that came out of Katrina had been thought of as too ambitious before. And I’d encourage reformers to view bold future reforms in a similar light, now, in the era of Coronavirus, including bond reform and bail reform. Our user-pay justice system is folding in this crisis, and it’s time to make changes.

“It’ll never last.”

I have a vivid memory of a judge taking me aside after Katrina and telling me the reforms we’d made would never last. That judge is gone, now, and we’re still here, along with many of our reforms. The point is that the changes we are making to the justice system today have the potential to become permanent.

Before Katrina, for example, our office wasn’t even publicly funded. Meanwhile, we’ve learned how to tackle both the short-term emergencies while strategizing and working together to aim for the longer-term reforms we want to see.

It’s important to be clear about what we want to see happen, and also to be clear that there are some things, in an emergency, that we’ll tolerate. But we’re also being very clear that once we get past it, things need to change.

Drawing The Line

After Katrina, it was very important for the defense bar to draw a line and assert our independence. There was one example where a defense attorney upset a judge and was hauled out of a courtroom in handcuffs. It sparked controversy, but a line was drawn, and we’ve held that ground since then.

We hold on to these reforms by proving that the reforms work and create value for our community and system. It’s also important to engage with media and others to tell the story of success.

I also remind people that whatever the reform, the empire always strikes back. There’s this reflexive systemic desire to reclaim what is lost. We’ve got to remain vigilant and be ready to defend the positive changes we’re able to make as a result of addressing this crisis.

—Derwyn Bunton is the Chief District Defender for Orleans Parish, in New Orleans, where he leads the Orleans Public Defenders Office. You can watch Mr. Bunton’s appearance as part of an April 10 webinar hosted by the American Bar Association, about lessons learned from Hurricane Katrina, by clicking here.

Criminal justice reform has become a priority on both sides of the political aisle and within our communities as America’s over-reliance on incarceration and racialized patterns of injustice are brought into sharper focus. Designing meaningful reform that will create lasting change requires participation and collaboration from all justice system stakeholders, even—and especially—those that are more used to approaching one another in an adversarial capacity.

Cornerstone Magazine—a publication of the National Legal Aid & Defender Association (NLADA)—spoke to leaders from two “Strategic Allies” of the Safety and Justice Challenge: David LaBahn, President and CEO of the Association of Prosecuting Attorneys (APA), and Jo-Ann Wallace, President and CEO of NLADA.

While defenders and prosecutors may have opposing perspectives in the courtroom, we often have many common goals when it comes to criminal justice reform. What would you say are a few of the most important shared objectives?

Jo-Ann Wallace: Almost half a million people detained each year in our country’s jails have never been found guilty of a crime. Many pose no real flight risk or danger to community. The starting point for shared objectives are eliminating the unnecessary use of jails and racial disparities in the justice system. I believe a shared desire for fair justice systems is motivating both defenders and prosecutors to pursue better solutions.

David LaBahn: The criminal justice system should aim to assist and rehabilitate individuals—as recidivism rates show, people in the system often don’t receive the treatment or resources they need to improve their circumstances. Having treatment alternatives to incarceration is key. Through implementation of diversion and deflection programs, defenders and prosecutors can work together to achieve the most successful results, and ultimately make our communities safer.

What are some of the challenges to collaborative advocacy between defenders and prosecutors on these issues? How can they be resolved?

DL: One of the biggest challenges is the notion that prosecutors and defense attorneys are on opposing sides, which leads to a fear of working together. However, collaborations need to take place in order to stomp out that stigma. Prosecutors and defenders agree on many issues surrounding criminal justice reform—including the fact that low-risk people can be diverted, and the importance of data—and they can work together to see positive changes that occur from these reform efforts. In order for this to take place, the parties involved also need to understand that it’s alright to agree to disagree.

JW: A public defender’s most important duty is to advocate zealously for his or her clients, and this requires having their complete confidence. Unfortunately, clients are sometimes so mistrustful of the justice system that they even view their attorney with suspicion. The perception of a close relationship with the prosecution can damage that trust even further.

Defenders can take a variety of steps to help their clients understand that collaboration on policy issues does not undermine their ability or their ethical duty to provide effective client representation.

How can defenders and prosecutors work together on the ground to make diversion programs or alternative sentencing more effective?

DL: While it is important to advocate for criminal justice reform legislation, prosecutors and defense attorneys realize that the most effective change occurs on the ground. Diversion programs are only successful if a host of multidisciplinary professionals—defenders, prosecutors, judges, probation and parole officers, mental health and substance use professionals, and community members—work together to benefit the individuals attending these programs. The success of these programs should also be measured through data, and professionals should not be afraid to change the program to best fit the needs of the individuals who are participating.

Many in the defender community believe that the justice system is broken. Do you agree, and can it be fixed with improvements to the existing system or are there some fundamental flaws that require comprehensive reform?

JW: Our criminal justice system is dealing with social problems it is not equipped to address. For example, many individuals with mental illnesses should not encounter the justice system, but should be diverted directly into the healthcare system. As a result, it is bloated like our jails and prisons, beyond the point of effectiveness in many instances and resources are stretched too thin. The overwhelming workload has created a system that is more focused on processing cases than dealing with human beings.

The MacArthur Safety and Justice Challenge teams are exploring what is driving their jail populations and working to develop strategies to reduce them, and also presents a model for a larger reassessment of how we approach social issues and the role of our criminal justice system. Until we get there, two small but significant changes would make a world of difference. First, every criminal justice stakeholder (judge, defense counsel, prosecutor, etc.) should treat clients and their families with respect and dignity. Second, these stakeholders should receive high quality training on implicit bias.

There are parts of our system that do need to be torn down and rebuilt differently. I believe it is time to eliminate cash bail systems, for example, which put liberty at a price only the wealthy can afford.

What would you like prosecutors to know about the defender community, and vice versa, and its role in making our justice system fairer and our communities safer?

DL: It is the role and the duty of the prosecutor as the “minister of justice” to ensure that we have a just system, which focuses on public safety. We recognize that the system needs improvements, and we are striving to work with all parties involved to make a difference in their communities. When prosecutors and defenders work together, they will be successful in steering individuals towards rehabilitation, and improving their circumstances.

JW: If a person feels that they have been treated fairly and with respect by the justice system, that they understand the court proceedings, and that their voice was heard during the adjudicative process, they are significantly less likely to become involved with the justice system again. Everyone in court must take some responsibility for this, but no one else in the system has the responsibilities written into their job descriptions as extensively as a client’s dedicated advocate. Competent defense counsel is vital to maintaining the faith of the client—and the public at large—in our institutions of justice.

*A version of this post originally appeared in Cornerstone Magazine