Decarcerating America Page 11
Any such reform will require careful legislation and cooperation and leadership from the Sentencing Commission. With judge-driven norms and consideration of themes set forth above, it is a safe assumption that the incarceration rate would be reduced.
Alternative Sentencing and Reentry
While judges can make a difference within the sentencing system, another approach is to attempt to craft judicially sponsored alternatives to incarceration. These efforts have been gaining momentum in recent years, and tend to take two forms: alternative sentencing programs that attempt to intervene in individual cases before a sentence is imposed, and programs that assist convicts in the reentry process upon their release from prison or jail, with the aim of reducing recidivism. Although small in scale, these programs represent an important judicial innovation that, if widely adopted, could play an important role in reducing mass incarceration.
The most promising of these programs, at least in terms of potential impact on incarceration rates, are those that take place prior to sentencing. These endeavors, which require cooperation from the relevant U.S. attorney’s office given the predominant role of the prosecution in the charging process, select defendants for whom incarceration may not be an appropriate sanction and who might receive some form of lower sentence conditioned on completion of a program of rehabilitation, often involving attempts to wean the defendants off of drugs.
One such program is the Pretrial Opportunity Program (POP), which takes place in the Eastern District of New York. Led by District Judges John Gleeson and Joanna Seybert, along with Magistrate Judges Steven Gold and Gary Brown, the Pretrial Opportunity Program is a “drug court,” based on the idea that many of the behaviors defendants are arrested for are grounded in drug or alcohol abuse, and that society’s interests are better served by combating those addictions than by punishing behavior over which the defendants may not have full control. When a defendant enters the program, all proceedings in his or her case are adjourned for a year or more. The defendant is required to remain drug-free, to get a GED if he or she does not already have a high school diploma or its equivalent, and to seek and obtain employment. Upon defendant’s completing the program, defense counsel and prosecutors evaluate the defendant’s progress and negotiate an outcome, which can include felony charges being reduced to misdemeanors or being dropped altogether. Even when charges are not reduced, participation in the program is considered by the sentencing judge in determining whether incarceration is required, and how long the appropriate term would be. Although the program in the Eastern District of New York is fairly recent, initial results look promising, and the Western District has begun a similar pilot program geared toward youthful offenders, under the leadership of Judge Ronnie Abrams.
Similar programs have shown potential in districts across the country, each taking slightly different approaches. The Central District of California (based around Los Angeles) has a two-tiered program called CASA. In one tier, defendants accused of minor crimes who complete the program have their charges dropped; the second tier, consisting of defendants charged with more serious crimes that appear to be motivated primarily by addiction, rewards successful participants with a sentence of probation rather than prison. In the Central District of Illinois’s PADI program, defendants who successfully complete their rehabilitation objectives receive a motion from prosecutors to lower their sentence based on “substantial assistance”—an act normally reserved only for defendants who cooperate with the government in key cases, and one that has the legal effect of authorizing a sentence below an offense’s mandatory minimum. Similarly, the DREAM program in the Western District of Washington takes defendants whose crimes were motivated by substance abuse issues and puts them through an intense, one-to two-year program involving rehabilitation, drug testing, and frequent meetings with the sentencing judge. Successful participants have their charges dismissed. Other programs have met with success in South Carolina, Connecticut, and New Hampshire.
Federal judges have also created programs that work post-sentence, helping to lower the number of people incarcerated by reducing recidivism. These reentry programs provide defendants who have served their prison terms with supervision, counseling, educational and vocational services, and at times a reduction in the length of a defendant’s period of supervised release. The Southern District of New York developed such a reentry program in 2010, Supervision Opportunity to Accelerate Re-Entry (SOAR), under the leadership of the late Honorable Harold Baer Jr. Those selected for the program were those who had a significant risk of recidivism but were not hardened criminals. Both prosecutors and defense lawyers were involved in selecting participants for whom services could make a difference, and successful completion of the year-long program resulted in a reduction in the term of supervised release. The Probation Department’s active participation in the program was critical, as were the biweekly meetings with the reentry court’s judges. Regrettably, the program fell victim to budgetary constraints in 2013. A similar system in the Eastern District, called STAR Courts, is estimated to have saved more than $2 million in prison terms avoided and supervised release terms shortened.
These innovations stand as examples of how judges can be leaders in helping to reduce mass incarceration. They also show that judges cannot do it alone; each of these programs involves a host of other actors, from federal prosecutors to the defense bar to the probation department. Neither thorough review of plea bargains, judicial pushback against the excesses of the sentencing guidelines system, nor alternative sentencing programs represents a true solution to mass incarceration. That will come only with congressional action to eliminate the criminalization of drugs, or to reduce or eliminate mandatory minimums, particularly those applicable to nonviolent drug offenses. The efforts of hundreds of diligent and principled jurists have led to lasting change in the past, particularly the demise of the mandatory guidelines system and the amelioration of the crack/powder cocaine disparity. The steps judges can take, though limited in scope, can be part of a necessary and fundamental change, as the justice system and the public recognize the damaging effect of mass incarceration on society.
Notes
1. These numbers likely understate the problem, since they do not include prisoners convicted of personal and property crimes connected to drug addiction or participation in the drug trade.
2. Although outside the scope of this chapter, the government’s use of confidential informants involves its own set of dubious practices and connections to mass incarceration. As Loyola law professor Alexandra Natapoff writes in her 2009 book Snitching: Criminal Informants and the Erosion of American Justice, by trading lenience for testimony the government has the ability to put extraordinary pressure on defendants prior to trial and prisoners after conviction. When used unethically, this pressure can result in false testimony and improper convictions. The use of such informants is particularly prevalent in drug cases.
3. The Booker court also overturned the portion of the Feeney Amendment that provided for de novo appellate review of sentencing decisions. Instead, appellate courts would review sentencing decisions for “unreasonableness.”
4. One of this chapter’s co-authors, Judge Sweet, notes: “It has been my practice to write a full sentencing opinion for each and every criminal conviction, whether the defendant agreed to a plea bargain or was found guilty at trial. The sentencing opinion is published (or circulated to the parties if it contains confidential information) a few days prior to the sentencing hearing at which the ultimate decision is made. I believe that having these determinations written out and made available is beneficial both for the public, which has an interest in knowing what sentences are being handed down and why, and for the participants in the case. The government and the defendant have the opportunity to look into my reasoning, correct any errors in my calculations of the guidelines range, and highlight any issues that I should consider further. Co-defendants, meanwhile, have the opportunity to see how I am approaching the case an
d estimate what sanction they may receive, given their level of culpability in the offense.”
5. The Reporters Committee for Freedom of the Press, along with several other newspapers and media organizations, recently challenged the legal grounds for keeping statements of reasons sealed as part of their efforts to obtain documents regarding the recent prosecution of former general and CIA director David Petraeus. The Honorable David C. Kessler of the Western District of North Carolina granted the motion to unseal the statement of reasons, redacting only General Petraeus’s social security number.
5
Public Defense and Decarceration
Advocacy on the Front Lines
ROBIN STEINBERG, SKYLAR ALBERTSON, AND RACHEL MAREMONT
Renée is a fifty-four-year-old woman who lives alone and suffers from heart disease and bipolar disorder, as well as a bad leg.1 She was arrested after being accused of slashing a neighbor in the face with a kitchen knife. According to Renée, her neighbors were drinking and had tried to take her clothes off, and she protected herself in the only way she knew how. Renée was charged with second-degree assault, and was released and allowed to return to her home while awaiting her next court date a month later. A week after her arrest, however, Renée received a letter in the mail that the New York City Housing Authority, notified automatically of her arrest, had started eviction proceedings against her. Disabled and mentally ill, Renée was now facing eviction from the home where she had lived for the past twenty-six years, without being convicted of a crime.
In the American criminal justice system, an arrest is never just an arrest. Even if it leads to only a minor misdemeanor conviction or no conviction at all, an arrest can throw an individual’s entire life into chaos, jeopardizing employment, housing, immigration status, access to public benefits, and family unity.2 These enmeshed penalties of criminal justice involvement—frequently referred to as “collateral consequences”3—often begin prior to any conviction, last long beyond the resolution of cases in the criminal and family court systems, and continue to present significant obstacles to reentry after incarceration. As the first advocates to meet with clients at the start of criminal and family court proceedings, public defenders are uniquely positioned to help clients fight the accusations against them as well as addressing these systemically enmeshed penalties before, during, and after the resolution of their cases.
Beginning in the 1980s and continuing throughout the 1990s—the peak period of growth in prison populations—policymakers across the United States added a host of far-reaching penalties to both state and federal laws, such as exclusion of felons from public housing and denial of financial aid for higher education.4 Today, the American Bar Association’s “National Inventory of the Collateral Consequences of Conviction” lists more than 45,000 enmeshed penalties in state and federal statutes.5 With nearly seven million Americans incarcerated or under state supervision6 and tens of millions of names in criminal record databases,7 the impact of enmeshed penalties continues to spread throughout communities—predominantly low-income communities of color—at an alarming pace. The burden of collateral penalties weighs particularly hard on people who are reentering society following incarceration, as they aren’t able to access resources such as housing, employment, or public benefits that could help them achieve stability.8
In this context, it is not enough for public defenders to merely advocate for clients within the narrow confines of criminal cases. Public defenders who seek to provide meaningful, client-centered, and relevant legal representation must expand the scope of their advocacy to address these enmeshed penalties.9
From a public health perspective, public defenders are the only ones able to powerfully disrupt mass incarceration on a client-by-client level, not just to avoid imprisonment (a primary intervention) but also, if a client has been incarcerated, to ameliorate the harm of prison upon release (a tertiary intervention). As advocates who meet with clients at the start of criminal proceedings and who are responsible for zealously representing clients’ stated interests, public defenders have the opportunity to address the full range of collateral penalties before they become crises. By advocating for clients in this manner, public defenders can carry out primary interventions that not only seek to minimize or avoid incarceration but also mitigate many of the lesser-known penalties that might soon destabilize clients’ lives. Concurrently, public defenders are able to engage in primary intervention by participating in community organizing projects and strategic policy reform designed to reduce inflow into the criminal justice system. By serving more generally as clients’ “legal homes,” public defenders can also become sources of tertiary intervention by helping clients who have already been incarcerated to better address the long-term consequences of criminal justice involvement. Holistic defense is a best practice model for public defenders to implement in pursuit of this broader vision of justice.
Holistic Defense
The Bronx Defenders has been pioneering its innovative model of holistic defense since its founding in 1997, when eight advocates united around a new vision of public defense. While members of the fledgling organization did not yet know the precise form that their new practice would take, they shared a core commitment to expanding the traditional role of public defenders by looking beyond clients’ criminal cases and the existing systems to address clients’ needs in the courts and beyond.10
The founding group of advocates listened to clients, their families, and the community, and what they found is that people often cared more about the broader civil, social, and economic consequences of their criminal cases than about the cases themselves. When clients’ children, jobs, benefits, housing, and immigration status were at stake, liberty interests were not always paramount.
As The Bronx Defenders’ staff learned more about clients’ needs over time, the group’s advocacy expanded to encompass a set of core practice areas. What began with one social worker on the initial team of legal advocates developed into a full Social Work Practice consisting of eighteen full-time social workers specializing in criminal defense, family defense, immigration, adolescent defense, and mental health support services. Similarly, the Civil Action Practice, which started with a single attorney funded through an external fellowship, grew to include twenty-six attorneys and eleven non-attorney civil advocates who provide support to clients on vital noncriminal matters such as employment, housing, public benefits, property retrieval, and immigration. Meanwhile, after staff at The Bronx Defenders watched the Administration for Children’s Services drag countless clients and their children before Bronx Family Court, threatening removal of clients’ children from their custody for issues related to their criminal cases, the office launched its Family Defense Practice, whose thirty-three attorneys, nine social workers, and seven parent advocates evolved to serve as the first institutional provider of parent defense representation in Bronx Family Court.
The common architecture that connects these practice areas are the four pillars of holistic defense. In sharp contrast to practice models that silo advocates into separate divisions, these four pillars embody a commitment to fully integrating services across multiple disciplines. This approach results in better case and life outcomes for our clients, higher levels of client satisfaction, and more long-term stability for clients and their families. The first pillar is the recognition that clients have a wide range of legal and social support needs that, if left unresolved, will continue to push them back into the criminal justice system. These needs include assistance with family custody issues, substance abuse, mental health issues, homelessness, lawful immigration status, and employment.
The second pillar is the importance of communication between advocates specializing in different practice areas. Dynamic and interdisciplinary communication enables advocates to strategize more effectively among themselves and with clients about how to tackle cases, address enmeshed penalties, and best connect clients to services that match their needs.
The third pillar is t
he interdisciplinary training that staff members at holistic defender offices must undergo in order to provide clients with the best representation possible. Advocates with interdisciplinary training are able to anticipate and identify the enmeshed penalties that their clients may face, making timely and informed referrals possible.
The fourth and final pillar of holistic defense is an emphasis on the necessity of community ties. A robust understanding of and connection to the community is holistic defenders’ primary means of identifying the full array of enmeshed penalties that their clients face, building trust with clients and their families, and identifying the larger, systemic forces at play.
Holistic defense and its four pillars operate most effectively through an interdisciplinary, team-based approach. At The Bronx Defenders, although advocates are organized by practice area for the purposes of supervision and professional development, they are functionally and physically organized into teams that include advocates from every practice area. They sit together, work together, and even socialize and eat together—and as a result, they are primed to promptly collaborate on their clients’ cases when multidisciplinary challenges arise. Thanks to the office’s team-based structure, staff members are then able to put the four pillars into practice by continually strategizing across practice areas and referring clients to additional services—both inhouse and beyond—as needed.