Reflections on 2013, Optimism for 2014

In contrast to my usual weary New Year’s Eve wish to get this year over with and start fresh pronto, I’m feeling optimism for 2014. It’s not just that our bees seem to be surviving the winter and that our pantry is stocked with the fruits of my fall canning efforts. I’m actually feeling optimistic about the criminal justice system.

Aside from the typically bombastic moments of winning and losing big trials, a few of my cases were quietly hopeful this year. For example, a few years ago I caught a case in which my client was caught on video robbing a bank. The video played on the news and his mom turned him in. Ouch. To add insult to injury, the DA was adamant about charging a prior bank robbery two different ways, each adding five years. We went back and forth trying to get ten years instead of fifteen. Out of options, we went to trial. After trial, a compassionate sentencing judge reluctantly and apprehensively let that client go to long term residential treatment instead of prison. Recently, I stood next to him in front of that judge as he thanked her and glowed with pride that he is a sober, employed, contributing member of society.

Another example. Six years ago I had a simple little case of possessing a stolen van, complicated by eleven strike priors, all committed long, long ago on a short but eventful youthful bender. It’s another example of a case that went to trial after plea negotiations bottomed out. Life: that was the offer. After trial, that was the sentence.  Then the California voters changed the Three Strikes law to require that the third “strike” be a strike offense, not just any felony. I petitioned for discretionary re-sentencing and had the surreal experience of getting to repeat a sentencing hearing under a new and more favorable law. In a few months, that client will be released.  I expect to drive out to the prison and give him a ride to a residential treatment program.

Perhaps these cases are examples of the pendulum finally swinging away from the lunatic idea that incarceration is the one-size-fits-all solution to all criminal justice challenges. Suddenly everyone is noticing the over incarceration crisis. AG  Holder is talking about it, saying “we cannot simply prosecute or incarcerate our way to becoming a safer nation”  and “too many Americans go to too many prisons for far too long, and for no good law enforcement reason.” Even Sesame Street is talking about it. The time is right to wake the hell up and admit that locking people up is not the answer. While we’re at it, let’s finally admit that cops, lawyers and prison guards should not be the primary providers of mental health care.  Oh, and let’s have a real discussion about addiction and poverty.

I don’t think this is fantastical. There is cause for optimism in the ongoing examination of racial bias in the justice system (just a few examples here, here , here), including Presidant Obama finally saying “African American young men are disproportionately involved in the criminal justice system.” These discussions propel progress. There is cause for optimism in the decline in support for capital punishment.

Much has been written about 2013 being the fiftieth anniversary of the Supreme Court decision in Gideon v. Wainright, guaranteeing each person accused of a crime the right to appointed counsel (watch this cool film retelling the Gideon case). Many decades after Justice Hugo Black declared “there can be no equal justice where the kind of trial a man gets depends on the amount of money he has,” where are we on equal justice? At this 50 year mark, many stopped to take a good look at the plight of public defenders (see Gideon at 50  and panel with Steve Bright here and great charts in Mother Jones here).  Today the public defender system is in crisis in many places. The numbers are staggering. Each year in the United States, over 12 million people are arrested. Eighty percent of the individuals that make their way through the criminal justice system are represented by one of only 15,000 public defenders. In reponse to this crisis, PD offices are fighting and winning battles over budget and caseload.

One of the events of 2013 that makes me most hopeful for the future is becoming involved with the organization Gideon’s Promise. A few years ago, at a DC event honoring the amazing Steve Bright (of SCHR), my law school classmate William Montross told me there was a group training PDs in the South, and I should get involved. I went to Atlanta last summer as a participant in the Gideon’s Promise Trainer Development Program, which teaches the curriculum as well as strategies for effectively mentoring public defenders. I believe this program is among the strongest in the nation for training and supporting new public defenders to be zealous, ethical and compassionate defenders.  I’m thrilled that our office has been accepted as a Gideon Nation partner office and will work closely with Gideon’s Promise in the coming year.

The dedication of the Gideon’s Promise community is depicted in the acclaimed documentary Gideon’s Army. This film follows three public defenders in the south, all of whom face seemingly insurmountable odds as they help indigent clients through the criminal justice process. We’ll be screening the film in Sonoma County on January 15 and tickets can be reserved here:

Gideon’s Army tickets! ($11) 

Between Gideon’s Promise, embracing social media, and participating in a nationwide effort to challenge unreliable forensic evidence, I feel newly connected to a community of public defenders that is fighting for fairness in the criminal justice system. All around me I see the dedication that sparked my superhero admiration for the attorneys I assisted as a student investigator at PDS those many years ago, which inspired me to go to law school to be a PD. In today’s public defender community, people like Andre Vitale are pushing back against budget cuts and excessive caseloads, writing on the new NAPD site yesterday: “without public defenders who receive equal treatment and are provided the same resources as the prosecution, the criminal justice system becomes a system of injustice.”  In 2013, Jimmy Carter said that criminal justice reform is “this generation’s civil rights movement.”

I get that it’s not all rosy out there. The NSA has turned all our lives into one big peepshow and SCOTUS seems ok with tossing all of our DNA into the database and so on. But it’s worth noting that if you make a dumbass move like Matthew Yglesias did here, thinking that public defenders are low hanging fruit, you will be quickly reminded that PDs don’t take that crap. (Of the many replies, this by JJC was my favorite smack down.)  PDs don’t take that crap from journalists or judges or prosecutors or those who set budgets or policy. So I’m optimistic and let’s fight on in 2014.

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