Decarcerating America Page 12
Teams range in size from sixteen to twenty-four advocates, with each team comprising several criminal defense and family defense attorneys, an administrator responsible for managing the team’s referrals and court filings, and at least one of each of the following: civil generalist attorneys, immigration attorneys, social workers, investigators, parent advocates, and civil legal advocates. Team members participate in community engagement initiatives, where a director of policy and external affairs, a director of community organizing, and an impact litigation team help focus and direct their efforts.
While some clients—often those whose cases are resolved quickly in court—make use of only the Criminal Defense or Family Defense practices, many not only benefit from several different practice areas but also return long after the formal conclusion of their cases to take advantage of this broad array of services. The interdisciplinary structure of the office avoids the complex and confusing processes that might otherwise result from referrals to services not handled by clients’ criminal or family defense attorneys. When referrals to outside organizations are necessary, advocates help their clients to navigate these transitions, often by accompanying clients to their first meetings.
Of course, while the core practice areas at The Bronx Defenders (Criminal, Family, Civil, and Immigration Defense; Social Work; Impact Litigation; and Policy and Community Organizing) cover many of the legal issues that clients face, substantial challenges exist beyond these areas. For this reason, the office also operates fifteen to twenty special projects that organize subsets of staff around narrower but no less devastating issues affecting clients. As these projects—which often begin as independent efforts by Bronx Defenders staff who identify a pressing client need—grow, they are often subsumed into preexisting practice areas, thereby continuously expanding the scope of our core areas of representation. Examples of such projects include the Adolescent Defense Project, now a subset of our Criminal Defense Practice, which provides specialized advocacy to the office’s sixteen-and seventeen-year-old clients, and Healthy Mothers Healthy Babies, now a joint Family Defense Practice–Social Work Practice program, which proactively connects pregnant Bronx Defenders clients who may be at risk of losing custody of their future newborns with a variety of support services. Other special projects such as the Client Emergency Fund, which provides small-scale donations of cash or goods to clients in moments of crisis, continue to exist independently of one practice area and are instead organized by an interdisciplinary team of volunteers from across the organization.
Keeping with the fourth pillar of holistic defense, which commits the office to robust community engagement, many of these special projects involve community outreach and systemic reform. The Bronx Defenders Organizing Project, under the umbrella of the Community Organizing Practice, trains current and former clients as community activists and conducts outreach with the local Bronx community through youth justice summits, Know Your Rights sessions, and trainings on how to deescalate conflicts with the police. Special organizing projects such as the Fundamental Fairness Project have shed light to the public on the ways in which delays in case processing in the court system have rendered going through the court system the de facto punishment in the Bronx criminal courts—pressuring clients to plead guilty in order to avoid the countless court appearances that stretch out over months and years. Projects such as the Robert P. Patterson, Jr. Mentoring Program, which provides adult mentors to at-risk youth in the South Bronx, seek to provide young people with opportunities, skills, and resources that build positive community and minimize the risk of criminal justice involvement.
By making community organizing and policy advocacy integral components of holistic defense, The Bronx Defenders has been able to break down the traditional division between direct service provision and policy advocacy. Advocates work with individual clients to solve their legal problems and address the collateral consequences stemming from them. Armed with the knowledge of clients’ real-life experiences, advocates are well placed to take on long-term, systemic policy change efforts. This radically shifts the community perception of public defenders away from narrowly focused criminal lawyers to problem solvers and advocates for necessary and long-overdue change.
This model of holistic defense is replicable and has spread to public defender offices across the United States. In 2010, The Bronx Defenders established the Center for Holistic Defense with funding from the Department of Justice’s Bureau of Justice Assistance. Each year, the Center selects between three and six organizations as technical assistance partners, for a total of twenty-four offices to date.11 These efforts are supplemented by more informal technical assistance such as speaking engagements and site visits. While the precise contours of holistic defense vary in different offices and jurisdictions, each organization that adopts the model follows the four pillars as a guide to implementing truly interdisciplinary advocacy. Today, organizations as distinct as the Arch City Defenders in St. Louis, Missouri, the East Bay Community Law Center in Berkeley, California, the Community Law Offices in Birmingham, Alabama, and the Tribal Defender of the Confederated Salish and Kootenai Tribes in Pablo, Montana, have incorporated some or all aspects of holistic defense into their practices.
In January 2017, The Bronx Defenders launched Still She Rises, Tulsa: A Project of the Bronx Defenders, the first replication of its holistic model outside of New York City. Having worked in Tulsa, Oklahoma, for years through the Center for Holistic Defense, staff at The Bronx Defenders became aware of the growing crisis of female incarceration in Oklahoma and across the country. Women and girls are the fastest-growing population in prisons and jails across the United States, and Oklahoma leads this trend by incarcerating 142 out of every 100,000 women, a rate more than double the national average.12 While many of the same circumstances—poverty, drug addiction, marginalization, and mental illness—drive men and women into the criminal justice system, it became clear to The Bronx Defenders that representing women and families would present unique challenges and opportunities.
With the support of local foundations and private donors, Still She Rises opened its doors in North Tulsa, Oklahoma, as the first public defender office dedicated exclusively to representing mothers and female caregivers in the criminal justice system. As at The Bronx Defenders, each client at Still She Rises has access to an interdisciplinary team of attorneys and advocates who provide defense, representation, and support in a variety of legal and non-legal arenas, always tailored to the client’s stated wishes. Staying true to the four pillars of holistic defense, which call upon advocates to adapt the holistic model to the specific jurisdiction and community served, Still She Rises has also expanded into new areas of advocacy tailored to the particular needs of women in North Tulsa. In the first few months of serving clients, attorneys and advocates came to understand that the myriad appointments, costs, and services that clients are mandated to complete post-conviction are overwhelming and onerous, particularly for those who are indigent and do not have regular access to transportation or childcare. As a result, many women were being reincarcerated for failure to comply with these conditions. Thus, the office’s Post-Disposition Advocacy Team was born. By tracking clients’ follow-up court dates, services and treatment program appointments, and payment schedules, as well as by serving as a liaison between clients, attorneys, the court, and service providers, post-conviction advocates assist clients in navigating the diffuse and obscure processes that follow criminal justice involvement.
In addition to providing high-quality advocacy and shedding light on the growing number of incarcerated women across the country, Still She Rises serves as a pilot program to test the holistic model—developed and refined over nearly two decades—in a new jurisdiction and with a particular client focus.
Holistic Defense and Primary Intervention
When Renée was facing criminal assault charges as well as the enmeshed penalty of eviction from her apartment, her interdisciplinary team advocated zealously on he
r behalf. A social worker reconnected Renée with mental health services to help her manage her bipolar disorder. A civil attorney defended her in housing court, convincing the New York City Housing Authority to delay the eviction proceedings in order to get Renée the services she needed and allow her time to resolve her criminal case. Renée’s criminal attorney then incorporated her mental health treatment and her high risk of homelessness into her defense in order to advocate on her behalf in criminal court. Renée was eventually able to resolve her criminal case in a way that did not trigger automatic eviction, allowing her to stay out of jail and in her home.
Holistic defense is the best and most direct vehicle in the criminal justice system for keeping people out of prison. Effectively advocating for clients’ liberty against the power of the government is a primary intervention against mass incarceration. Public defenders reduce inflow into prisons and jails every day by challenging the evidence presented against criminal defendants and advocating for individualized assessments, treatment programs, or other alternatives to incarceration.
As with many diseases, mass incarceration stems from a myriad of complex and often interconnected causes. Holistic defense both enhances public defenders’ core function of zealously defending clients against criminal charges and empowers advocates to partner with clients to address the underlying causes and consequences of court involvement. A holistic defender model is driven by client decision-making, so clients guide not only case decisions but also prioritize which life outcomes are most pressing and relevant. Attorneys at holistic public defender offices are then able to help their clients reach their stated goals by leveraging the comprehensive, extended resources and perspectives provided by interdisciplinary teams.
In keeping with the fourth pillar of holistic defense, advocates at The Bronx Defenders listened to clients’ experiences and learned that even short-term incarceration can produce lasting instability in people’s lives. Being in jail for just a few days can jeopardize people’s ability to maintain employment, family relationships, housing, and legal status, among other consequences. Many of The Bronx Defenders’ clients were spending days, weeks, or months incarcerated because they were too poor to afford bail—sometimes in amounts as low as $500. Too often, clients would plead guilty in order to be released from jail, leading to adverse consequences in all areas of their lives.
In addition to bail, the extreme delays now endemic to the Bronx criminal court system also pressure clients to accept plea bargains, rather than return to court for months and even years. Court delays of up to five years for felonies have pushed the Bronx courts to what judges call “crisis levels.”13 For misdemeanors in the Bronx, it seems that the right to a trial has been all but lost. Through its “No Day in Court” study, the Bronx Defenders’ Fundamental Fairness Project followed fifty-four “fighter clients”—clients who were determined to take misdemeanor marijuana possession cases to trial and challenge the evidence that government claimed to have against them. The study proved that trials are unreasonably difficult to come by for individuals charged with low-level offenses. Not a single fighter client was able to take his or her case to trial. In each case, prosecutors delayed until the client gave up and accepted a plea, a judge dismissed the case, or the prosecutors themselves dropped the charge.14 This phenomenon is particularly troubling considering that a mere 8 percent of all cases arraigned in the Bronx in 2013 involved the most serious charges, while misdemeanors and violations were the top charges for over 70 percent of cases.15
Bronx Criminal Court, like the American criminal justice system in general, operates almost exclusively through dispositions other than trial verdicts. In 2013, there were more than 74,000 arrests, 95,000 summonses, and 88,000 criminal court dispositions in the Bronx, and yet only 170 criminal cases that resulted in trial verdicts. This is partially because of the excessive delays in the Bronx court system.16 Nationwide, an estimated 90 to 95 percent of state and federal court cases are resolved through a plea bargain.17 When clients must wait months and years to have their day in court, they are much more likely to take a plea bargain, leaving them with a devastating criminal record and likely facing severe enmeshed penalties. The damage is particularly severe for clients who were incarcerated while awaiting trial.
In response to clients’ urgent need to fight their criminal cases from outside of jail, The Bronx Defenders created the Bronx Freedom Fund, New York’s first-ever charitable bail fund housed in a holistic defender office. The Bronx Freedom Fund posts up to $2,000 bail for Bronx Defenders clients who are facing misdemeanor charges, allowing clients to return home to their jobs, families, and communities while awaiting trial.
The success of the Freedom Fund is clear. In its first two years of operation, it secured the freedom of more than three hundred clients, with 97 percent of them returning to all of their scheduled court dates. Each time a client returns to all of his or her court appearances, the money posted returns to the fund and is available for use in other clients’ cases. Since people are much more likely to obtain favorable dispositions when they are able to fight their cases from outside jail, the Bronx Freedom Fund also plays a critical role in helping clients avoid longer terms of incarceration. Without help from the Freedom Fund, more than nine in ten defendants who cannot make bail will plead guilty and likely be saddled with a criminal record, severely impacting their ability to access housing, employment, and other services.18 Among clients who were bailed out by the Freedom Fund, however, more than half had their cases dismissed and only one in eight clients received a misdemeanor conviction.19
Overwhelming data from the Bronx Freedom Fund and other charitable bail funds demonstrate that the vast majority of people return to court without paying bail or being forced to undergo treatment or services. In the summer of 2015, New York Mayor Bill de Blasio’s office announced a plan to largely eliminate cash bail for people charged with low-level or nonviolent crimes. This was a long-overdue step, and one that has the potential to help break the causal connection between poverty and incarceration that the Freedom Fund was founded to alleviate. However, unlike the Freedom Fund, which merely reminds people of their court dates with calls and text message check-ins, the city’s proposed alternative to bail and similar proposals created since then would likely extend the reach of the criminal justice system by forcing people to undergo services such as mental health treatment, anger management classes, or drug treatment, even though they have not been convicted of a crime, and even when such interventions do nothing to alleviate the underlying issue driving the client into the system. While this policy has the potential to reduce the total numbers of incarcerated people, it also threatens to broaden the reach of the criminal justice system, particularly over poor communities of color.20
For most of The Bronx Defenders’ clients, holistic defense begins at arraignments and family court intake, where attorneys ask clients a series of questions.21 These questions, which were carefully crafted to help Bronx Defenders advocates identify potential enmeshed penalties, are continually updated to reflect clients’ needs as well as changes in statutory law and the political climate to best protect clients from onerous consequences. When our attorneys meet with their clients for the first time, their familiarity with the basics of their colleagues’ areas of expertise enables them to use their clients’ responses to recognize when to refer issues to their team members. Thanks to the structure of the office, these referrals are prompt, and referring attorneys can follow up with their colleagues as easily as leaning over the walls of their cubicles. Rather than simply processing clients through the system (as many understaffed public defenders do), advocates at holistic defender offices get to know their clients, strategize according to their strengths and vulnerabilities, and leverage that knowledge into better outcomes both inside and outside of court—humanizing clients in the eyes of judges and prosecutors.
The application of holistic defense in criminal court results in a higher percentage of non-incarceratory disposit
ions and, equally importantly, legal strategies that seek to mitigate the enmeshed penalties of court involvement. In 2014, The Bronx Defenders represented clients in nearly thirty thousand criminal cases.22 According to all available data, 91.8 percent of Bronx Defenders clients received non-incarceratory dispositions.
Of course, much of holistic defense occurs beyond the doors of criminal court. In 2013 and 2014, Bronx Defenders criminal defense attorneys referred roughly 4,000 clients to civil legal services, 900 clients to family court representation, 3,500 clients to immigration advocacy, and 1,100 clients to social work support. These referrals do not include the countless instances of more informal collaboration across practice areas that occur every day at The Bronx Defenders.
As the first institutional provider of defense representation for parents accused of abuse or neglect in Bronx Family Court, The Bronx Defenders Family Defense also assisted nearly 1,000 clients in family court proceedings in 2014. Additionally, The Bronx Defenders represented approximately 197 people facing deportation in Immigration Court in 2014 through the New York Family Immigrant Unity Project (NYIFUP). Clients who come to The Bronx Defenders via family court and immigration court are eligible for all of the same interdisciplinary resources as clients who come to the office through arraignments in criminal court.
The office’s Civil Action Practice assists clients with a variety of matters including public benefits, housing, employment, education, and health. In addition to the office’s twenty-six civil generalist attorneys, The Bronx Defenders employs eleven civil legal advocates, who are trained to assist clients with matters that don’t require licensed attorneys, such as reclaiming property taken by the police during an arrest and accessing public benefits. Civil legal advocates enable the office to offer clients a broad array of civil legal services despite the limited funding options for providing civil legal aid to people with criminal or family court involvement.