The New Jim Crow
I don’t think I’ve ever written a book review in more than one part. This book really could have a post for every chapter, but I’ll restrain myself. I needed to write this post to get my more personal objections to the book off my chest. I really liked the book. Seriously. I rated it 5 stars. It’s important. It needs to be read. It needs to be talked about. I just didn’t want my thoughts on the whole of the book to be clouded by one big issue that I had with it.
I’m a public defender. That means I am appointed to represent people accused of crimes when they can’t afford a lawyer. Fifty years ago, in a US Supreme Court case called Gideon v. Wainwright, which originated in my home state of Florida, it was decided that the United States Constitution required this. This Clarence Earl Gideon, a middle aged, poor, former small time crook, insisted that he should have a lawyer help him at trial. He said that there was no way he could represent himself at trial. The Court agreed with him. It doesn’t matter if you can pay for it or not – you get a lawyer. This was considered a cause for celebration. In fact, in 1980, Henry Fonda played the part of Gideon in a made for tv movie about the case. If Henry Fonda is playing you in a 1980s movie, you are the hero.
So what happened since then? I couldn’t tell you for sure. Partly, as Michelle Alexander explains, we have tied criminality to race. (Gideon was white). Those people don’t deserve legal help. We should just fry ’em. The officers should have never even arrested that guy – can’t believe they didn’t deal with him on the street.
Criminals are disparaged constantly. Treated as subhuman. Their lawyers, mostly public defenders, are looked at with horror. How can you defend those people? *shudder*
I get it. This is part of the job. Private attorneys ask when you’re going out on your own. Hanging your own shingle. They look at me uncomfortably when I look them straight in the face and say “I like being a public defender.” Your family can’t believe you spent over $100K on law school just to make public interest wages. Surely you’re just doing this for the trial experience. “Private firms love it when you have experience in court!” Even my clients tell me, on a regular basis, “I’m going to get a real lawyer.” Or, to the judge, “I don’t have a lawyer, I have the public defender.”
When we get this much flak from so many corners, it hurts that much more to get it from a book I’m so excited about. The section “Legal Misrepresentation” starts on page 84. Alexander points out that funding for public defenders is a pretty low priority. Yes, it’s required, but many states begrudgingly provide the bare minimum (if that). Public defenders are saddled with high caseloads (often very true). Often the accused has little time to decide whether or not to take a plea bargain that will have serious consequences on the rest of their life. True.
I have absolutely no issue with honestly confronting the shortcomings of the public defender system. However, I’ve seen it up close and personal in two states. I cannot agree that “Too often the quality of court-appointed counsel is poor because the miserable working conditions and low pay discourage good attorneys from practicing in the system.” (pg. 85)
This is a tough statement to swallow knowing all of the dedicated, hardworking, passionate public defenders that I know. Some of the absolute best lawyering I’ve seen has been by public defenders. It’s tough when Michelle Alexander herself was a public interest lawyer. She should know that there is fierce competition for those not-exactly-high-paying jobs. People want to do public interest work. Some of my smartest classmates, people on Law Review, went to work in the public sector. They would have been competitive for top New York law firms, making $160K their first year. Instead, they went to Legal Aid.
It’s also tough when just two pages later the book addresses plea bargaining and the nearly unconstrained power of the prosecutor. Prosecutors can over charge cases (adding more counts, or charging the crime as otherwise more serious), can threaten to up a case from a misdemeanor to a felony if a client won’t plea, they can make an offer that’s good “today only” (that day typically being the first time someone is in court, they can offer you 5 days in jail today in exchange for a plea but heaven forbid you make them go to trial (or even start to prep their case and talk to their witnesses) and all bets are off – they are asking for the maximum.
Alexander points out that “When prosecutors offer “only” three years in prison when the penalties defendants could receive if they took their case to trial would be five, ten, or twenty years – or life imprisonment – only extremely courageous (or foolish) defendants turn the offer down.”
So, my question is, then what do you want a public defender to do? Let’s say that you have a prosecutor that plays nice. They understand that a person might want to make an appointment to sit down with their lawyer before making a decision to spend time behind bars. They are giving your client a little time to do that.
I can sit with someone and explain their options. I can answer their questions. I can give them my honest assessment of the case. At the end of the day, though, they’d have to be either “extremely courageous (or foolish)” to turn down a (reasonable) plea offer.
As much as I’d love to see public defenders offices better funded, with more investigators, with more lawyers, with better equipment, without any requirements that clients pay some ridiculous $100 fee for my services, I don’t see how the public defender really contributes to mass incarceration.
The state attorney hold the cards, and the client is being forced to either fold, forfeiting their stake, or take the gamble, risking it all.