Some say the system is broken; this has become a mantra; it is not simply broken, it is evil. The root causes of mass incarceration are poverty and over-criminalization.
The United States currently spends approximately $2.2 billion annually on indigent defense services. By comparison, annual national prosecutorial funding typically exceeds $6 billion in any given year.
To me this speaks volumes, and until this changes, NO ONE WILL EVER GET A FAIR TRIAL.
Here are some facts and statistics.
The country with the most incarcerated is the United States.
There are an estimated 46,000 to 230,000 innocent people behind bars.
Some 97 percent of federal felony convictions are the result of plea bargains.
• Between 2% and 10% of convicted individuals in US prisons are innocent.
• 2,666 people have been exonerated in the US since 1989.
• Proven innocent people have served more than 23,950 years in prison so far.
• Out of 100 sentenced to death, 4 are likely innocent, but only 2 get exonerated.
• 69% of wrongful conviction cases happen due to eyewitness misidentification.
• False confessions account for 29% of wrongful convictions.
• Official misconduct plays a part in 31% of murder exonerations.
• False accusations are present in 70% of wrongful convictions.
Keeping in mind that there are over 2.3 million incarcerated individuals in the United States, you can see that the number of innocent people behind bars is anywhere from 46,000 to 230,000.
There is no such thing as a fair trial. Someone such as Harvey Weinstein or Bill Cosby has the capital and availability to file appeals anytime they want; for others it is all over when you have a public defender, you sit in jail, guilty or innocent.
How it works is to qualify for a public defender, a person must have an income that is no more than 25% above the poverty line, based on the number of people in the household.
So for example, to qualify for a public defender in Colorado the annual income limit for a one-person household is $13,590, a two-person household, the limit is $18,310, and for a three-person household, the limit is $23,030
Overall in the U.S. Public defenders averaged 205 to 300 cases.
In the state of Kansas, Legislature approved pay raises for public defenders, but didn’t approve money for additional public defenders.
Today, at least 4.9 million people are arrested annually, most of them poor, and virtually every public defense system struggles to represent all of the defendants who can’t afford their own lawyer. Until states remove barriers to providing adequate public defense, this country will continue to be one where due process and equal protection is a pie in the sky dream, a place where people are told to believe in a constitutional right that does not actually exist.
One of the many reasons mass incarceration exist is because people that are too poor to afford their own lawyers, are denied proper representation in court. This injustice happens because public defense systems are severely underfunded and overburdened.
Together “We the People” must make a stand and make our voices heard, to be a voice for those locked up in prison.
If this can happen to Christopher Dunn, and to over 46,000-235,000 people who are innocent, do you really believe you are “free” in this kind of America?
COMPENSATION
Currently, 33 states and the Federal Government compensate for wrongful convictions in some way. The 17 states that don’t offer any compensation following wrongful conviction and imprisonment are:
• Alaska
• Arizona
• Arkansas
• Delaware
• Georgia
• Idaho
• Indiana
• Kentucky
• Nevada
• New Mexico
• North Dakota
• Oregon
• Pennsylvania
• Rhode Island
• South Carolina
• South Dakota
• Wyoming
The countries with the most incarcerated are the United States, China, Brazil, and Russia, prisoner facts reveal. So, these four countries are likely to have the most innocent people convicted and imprisoned.
SUICIDE IN PRISON
• From 2001 to 2019, the number of suicides increased 85% in state prisons, 61% in federal prisons, and 13% in local jails.
• During 2010-19, suffocation, including hanging and self-strangulation, accounted for nearly 90% of suicide deaths in local jails.
• During 2015-19, about 12% of deaths by suicide in local jails occurred within the first 24 hours of incarceration, a decrease from almost 22% during 2000-04.
• The average suicide rate for white inmates in local jails was 93 per 100,000 during the 5-year period of 2015-19, which is 5 times the rate for black inmates (18 per 100,000) and more than 3 times the rate for Hispanic inmates (26 per 100,000).
Over the 20-year period evaluated by researchers— from 2000 to 2019 — more than 6,200 local jail inmates died by suicide while in custody, the study found. The suicide rate rose by 13 percent in local jails between 2000 and 2019.
At the state and federal level, a total of 4,500 prisoners took their own lives over the same period, an increase of 83 percent over the 20-year span.
Almost 700 people killed themselves in local jails and state and federal prisons in 2019, according to a new study released Thursday by the U.S. Bureau of Justice Statistics.
As the Brennan Center explains: In the United States, “there are three main forms of indigent defense delivery: public defender offices, assigned counsel, and contract counsel.”
In some states, local governments establish and staff public defender offices. In others, courts assign private attorneys to represent people (who could not otherwise afford an attorney) on a case-by-case basis. In places utilizing contract counsel, the court assigns some or all cases to private attorneys on a flat-fee basis. The questions in this briefing are — by and large — relevant to all three models.
While every state and local public defense system is unique, we’ve identified nine urgent and common problems that plague public defense systems nationwide. Unfortunately, there isn’t enough current data for us to explain how every state stacks up on these issues, but we’ve done the next best thing: We’ve created a list of nine questions you can ask to assess where your state’s public defense system might need help, and we’ve highlighted helpful and detailed resources that can assist reform efforts.
Does an independent agency oversee public defense in your state? As the Sixth Amendment Center has explained, it is critical to have a statewide agency responsible for both “the oversight and [the] evaluation of defender services.” Such agencies must have authority to create and enforce standards for effective representation (such as those related to workloads, supervision, and performance).
Alongside these supervisory duties, oversight agencies that have meaningful independence can also insulate public defense systems from the whims of political pressure or judicial interference, which enhances the long-term stability of public defense provision.
Notwithstanding the importance of such agencies, as recently as 2017, 16 states lacked any such entity, and more than half the agencies that did exist lacked independence.
Does your state shoulder the cost of public defense or leave the burden to local governments?
As the Brennan Center notes, public defense “has always been and remains an unfunded federal mandate.” Where states don’t assume financial responsibility, local governments are left to cover the cost.
As recently as a few years ago, 11 states provided “minimal to no state funding” for public defense, leaving their local governments to shoulder the entire financial burden. By contrast, 27 states relieve local governments of “all responsibility for funding right-to-counsel services.”
As the Sixth Amendment Center succinctly explains: “State funding of indigent defense services has proven to be the most stable for two principal reasons. First, local governments have significant revenue-raising restrictions placed on them by the state while generally being statutorily prohibited from deficit spending. Second, the jurisdictions that are often most in need of indigent defense services are the ones that are least likely to be able to afford it.”
Does your state increase public defense funding when demands on public defenders increase? Just as important as whether public defense funding is adequate at a moment in time is whether that funding grows when other parts of the criminal legal system are expanded.
For example, is funding for police-worn body cameras accompanied by funding to help public defenders review collected camera footage? If new conduct is criminalized, is there an increase in public defense funding to deal with the increased criminal caseload? As the American Bar Association notes: “No part of the justice system should be expanded or the workload increased without consideration of the impact that expansion will have on the balance and on the other components of the justice system.”
Does the way attorneys are compensated create perverse incentives? In places without public defender offices, counsel is provided in several ways. Sometimes, courts appoint counsel on a case-by-case basis. As the Brennan Center has explained, appointed counsel are frequently compensated at very low hourly rates, and total compensation is often limited by fee caps that restrict how much attorneys can earn per case.
Similarly, courts may hire private attorneys to “represent an unlimited number of clients for a set fee.” Under either model, such arrangements “incentivize attorneys to do as little work as possible on each case…because all costs for a case, such as investigation or consulting expert witnesses, come out of the same fee and thus directly eat away at whatever profit the attorney makes.”
Accordingly, many legal groups (including the ABA) recommend banning flat-fee contracts and restrictive fee caps–nonetheless, these approaches remain the most common method of providing and funding public defense across the country.
Being forced to pay can push people deeper into debt, subject people to predatory debt collection practices, and even result in incarceration.
Do fines and fees fund public defense? Some places (like New Orleans) cover the cost of operating the criminal legal system through the collection of fines and fees. Public defenders, prison and jail expenses, probation and parole services, GPS monitors, and court processes can all be funded in this way. However, this “user-funded” approach is both cruel and unstable.
Many people saddled with fines and fees are unable to afford them, and being forced to pay can push people deeper into debt, subject people to predatory debt collection practices, and even result in incarceration. Moreover, given widespread inability to pay, revenue from fines and fees is an unstable source of funding for public defense offices.
Some places have started to abolish such fines and fees and to commit to more reliable funding for public defense. For example, California recently abolished many criminal legal fees, including the fee charged for representation by a public defender.
Are there meaningful, enforceable workload limits for public defenders? One of the most widespread and pernicious problems facing public defenders is the burden of crushing caseloads. To address such problems, states must adopt realistic and enforceable workload standards. However, few jurisdictions have adopted any such limits.
Importantly, it is also critical to note that some of the most widely promulgated national standards weren’t actually “based on any empirical research and were set too high” initially, so it is critical that states adopt standards tailored to the reality of criminal practice in their own jurisdictions. As the American Bar Association has explained: “National caseload standards should [never] be exceeded, but the concept of workload (i.e., caseload adjusted by factors such as case complexity, support services, and an attorney’s nonrepresentational duties) is a more accurate measurement.”
Does the state give public defenders access to the information they need to do their jobs effectively? While prosecutors are required to turn over exculpatory evidence to the defense, violations of this rule are not uncommon. In particular, defense attorneys often find it difficult to obtain information about prior police or prosecutor misconduct that may be relevant to their cases. This reality can mean that law enforcement officials with a history of abusing their power and prosecutors who shirk their ethical obligations can continue to do so.
However, states can remedy this problem by making information about police misconduct and prosecutorial misconduct available to defense counsel or to the public at large. For example, California recently passed a law intended to make police misconduct records publicly available.
And states like Ohio have passed open-file discovery laws, which require the prosecution to share everything in their file with the defense — a practice that can lead to “a more efficient criminal justice system that better protects against wrongful imprisonment and renders more reliable convictions.”
It is clear that justice is better served when defense counsel is involved in the earliest stages of a criminal proceeding.
Is counsel appointed before a client’s very first court appearance, or is appointment delayed until later in the process? Increasingly, it is clear that justice is better served when defense counsel is involved in the earliest stages of a criminal proceeding.
Ideally, this will mean meeting a client prior to arraignment (the stage at which charges are formally announced) and representing them at that hearing and/or at any prior appearance that might occur.
As one project in California demonstrated, meeting clients within hours of an arrest can increase the chance that someone will be released on bail, which means that someone won’t remain incarcerated while their case makes its way through the system.
Another California pilot program found that, where public defenders represented clients at arraignment, defendants spent less time in custody, the county benefited financially, and due process was better safeguarded.
Does your public defense system provide holistic defense for clients who need other legal (or even non-legal) assistance?
For many people summoned to criminal court, the charges pending against them are only one of numerous challenges they face. Collateral consequences like deportation or losing access to social services may flow from a conviction, and may even result from merely facing criminal charges or being detained.
Furthermore, issues like a pending eviction, a denial of public benefits, or a need for counseling may also predate the filing of any charges.
Exemplary public defense systems across the country are finding ways to help their clients and advocate for their rights even beyond representing them in criminal proceedings.
For example, in Alameda County, the public defender’s office launched an immigration representation project through which the office now represents noncitizen clients in subsequent removal proceedings and helps them obtain lawful permanent resident status in the United States.
And the Bronx Defenders Office commits “to addressing clients’ most pressing legal and social support needs” and pledges to begin representation by “identifying [and supporting] the full range of client needs.”
Likewise, some public defender offices have started to embed social work teams within their departments.
As one study found, the involvement of social workers has a positive impact on “sentencing, attorney-client relationships, defendant experiences with the court systems, and connecting clients to community services, as well as building court actors’ knowledge of services available in their own community.”
CRACKS MARCH 2023 