What Would It Take to Create a More Equitable and Fair Indigent Criminal Defense System in the U.S.?

What Would It Take is a podcast from Stanford Impact Labs (SIL) that features conversations with problem-solving change agents committed to putting social science to work for society. 

This is a transcript of Season 2 : Episode 1. It features John J. Donohue and Eric A. Baldwin of Stanford Law School and SIL’s Kate Green Tripp discussing the question What Would It Take to Create a More Equitable and Fair Indigent Criminal Defense System in the U.S.?

We invite you to listen to the episode or read the transcript below.

Season 2, Episode 1: Transcript

Kate Green Tripp: Welcome to What Would It Take, a podcast from Stanford Impact Labs designed to expose and explore what it looks like to tackle social problems with a solutions-focused orientation. I'm your host, Kate Green Tripp. Today we are joined by two scholars committed to creating a more equitable and fair indigent criminal defense system in the U.S. 

John J. Donohue, professor of law at Stanford Law School, is a leading empirical researcher in the legal academy. He is an economist and a lawyer, well known for using empirical analysis to determine the impact of law and public policy. Eric A Baldwin is a postdoctoral researcher at Stanford Law School, and together John and Eric are currently engaged in an evaluation of collaborative public defense. They also recently co-authored an opinion piece entitled The Crisis of America's Public Defenders.

John and Eric, thank you so much for being with us here today.

John Donohue: Good to be with you.

Kate: I'd love if we could start this conversation by getting a better sense of what the current state of indigent criminal defense in the U.S. really looks like. John, I'd love for you to start us off.

John: Yes, well, of course, the big background of this particular issue is the American criminal justice system, which among affluent countries is a very harsh and some might say regressive system with lots and lots of indigent individuals being brought into the system where the system has rather harsh possible penalties. And of course, since 1963, there is a constitutional right to have an appointed counsel to represent you as an indigent criminal defendant.

But as the magnitude of the criminal justice system has grown over time, and the number of people brought into the system through arrest has grown, the entire criminal justice defense bar has been under enormous stress. And it is also part of, you know, a political dynamic where in tight budgets, politicians don't like to spend a lot of extra money on hiring public defenders to represent indigent criminal defendants.

So there's just an enormous burden on the system right now, and it takes a very real toll on the people who are caught up in the system. First of all, the public defenders are totally overwhelmed just with the number of clients that they have. And then many, many criminal defendants will end up being put in a situation where they are simply not given the adequate representation that would be beneficial to their case. And as a result, many harsher penalties are visited upon these individuals than would be the case with a more complete indigent defense program.

Kate: I'm curious for your added insights here, Eric, and to really understand how big of a system we're talking about here, how many people impacted.

Eric Baldwin: In the United States, roughly 60 to 80% of all criminal defendants at the state level are represented by public defenders. So that means that the vast majority of individuals that are interacting, coming into contact with the criminal justice system will be represented by public defenders. At the federal level, 90% of all defendants in felony cases are represented by public defenders. It's a very significant proportion of all defendants that are working with public defenders. And so they're playing this crucial role in the overall system and ensuring that these individuals, these clients, have access to thorough and competent legal defense and due process.

Kate: So, John, I understand you to be many things: a law professor, a legal researcher, an economist. Help me understand a bit more about how you come to this problem of indigent criminal defense, and how you're approaching it. Help me understand your perspective.

John: This has actually been an interest of mine since way back in law school. When I was in law school, I worked in a clinic doing indigent defense for juveniles, and it was my first opportunity to see the system up close. And I just saw the heartbreak of young individuals getting caught up in the criminal justice system. And if they could have been diverted into a better path, their life prospects could have been very different in ways that not only would have helped them individually, but also would have protected society in a better way.

Because if you take an individual who's maybe on this bad path of entering into a life of crime essentially, but can divert them into a more beneficial life path, it not only helps them immensely, but it protects all of the potential victims that they might encounter in the years ahead. So I do think it's something that's incredibly important to think about.

How can we help individuals who are salvageable but under the current system tend to get on what's often thought to be, you know, just this repeated pattern of arrest, incarceration and re-arrest. The recidivism rates in the United States are enormous. And so programs such as Partners for Justice and other holistic criminal defense programs are designed to see if they can aid this criminal justice system process in a way that helps the individual criminal defendant not only get services that they might need, but hopefully put them on a better path going forward.

Because if you are taking an individual and entering them into the criminal justice system as a juvenile or as a young adult, and they're cycling back and forth for the next 20 or 30 years of their life., you know, the human and social costs of this are enormous. And the current system that puts so much pressure on the public defenders doesn't allow them to take the time with any individual client that might be necessary.

I still remember very vividly one of my first cases was a young man who was 16 years old, who had been thrown out of his house because his mother had started a new relationship, and the man did not get along with the 16-year-old boy. And so he was thrown out of the house. And he's living in Boston, on the street in the middle of winter, and one night he is freezing to death,and he doesn't know what to do. So he takes a garbage pail and throws it through a plate glass window so he can be arrested and brought into the jail for the night. And of course, his real need was housing. It wasn't, you know, a criminal justice scenario. And that's one of the things that Partners for Justice looks at.

What is it that has led this individual into this particular criminal justice interaction? And, sometimes it could be a need for housing, it could be a need for a job, could be mental health issues, or dealing with drug or alcohol abuse. And a public defender often has so many cases, that I can't tell you how often, when I was in the lockup before prisoners were brought into the courtroom, you'd see the public defender meeting the client for the first time, and in five minutes, he's going to be bringing him in before the judge.

There isn't time to deal with the issues that may be besieging that individual. But if there's a way to address those issues, you can both get better outcomes, perhaps for the individual and the immediate legal matter, that hopefully put them on a better path. It really is heartbreaking when you see a young individual who you think with better social services could have ended up with a much better life outcome, but because of the lack of that, ends up in this nightmare of recidivism.

Kate: You're painting a picture of a system that is clearly under stress, hugely burdened, and yet also a system that is desperately needed in order for the justice system to operate. I want to understand what the data reveals about what's needed. When we think about what's not working, let's also think about what's needed.

Eric: One of the fundamental things that is needed is caseload reform. Changes around the number of cases that public defenders and attorneys are taking on. So much of the work of public defenders is occupied or consumed by these kind of more social work aspects, which are very much needed. So many of these clients, really what they have are social problems or mental health problems or issues accessing housing and food and what not.

And so what they need is access to those things. And attorneys, public defenders who are civil servants, public employees, rather than dedicating their time to legal strategy and trial strategy and things of that nature, they're spending their time on these more quasi social work activities, which are very much so needed, but they're so overburdened that public defenders, on average, are taking roughly 150 felony cases a year and 400 misdemeanor cases in addition to doing all of this social work. And so, based on those numbers, that's roughly 13.9 hours per felony case in terms of preparation. So, really like one and a half business days of preparation for a felony case and even less (5.2 hours on average) in terms of preparation time for a misdemeanor case. And that's because they not only have these high caseloads, but are doing all of this work other than the legal work.

They're connecting their clients to social services and public services. And so one of the things that's needed is to bring in special advocates, people that are not attorneys and they're not social workers, but they're there to kind of play this intermediary role and connect clients to those services that they need in order to address the underlying reason or causes that is causing them to make contact with the criminal justice system.

But that also frees up the public defender's time so that they can dedicate themselves to legal strategy, to trial strategy, without having to kind of do all these extra legal activities, if you will. And so that's what some of the data shows us. There's more data from the Rand Corporation and a study last year that showed that, for example, public defenders should spend ideally 286 hours preparing one felony case.

So assuming a public defender works five days a week, 40 hours a week, 52 weeks out of the year, that would give them time to handle about 7 to 8 cases per year. And that's it. Obviously, that's very unrealistic. And so we need to find something that's a happy compromise, a happy medium between the 13.9 hours that is currently happening, and then the recommended 286 hours for a single felony case.And part of that is by bringing in organizations that provide holistic services and collaborative defense, like Partners for Justice.

Kate: Tell me more about Partners for Justice and sort of how you're working together to better understand and get at this problem.

Eric: Partners for Justice has roughly 20 locations as of right now, and is considering opening in a number of other states and cities. And so what we do with them is we have agreed to engage in an evaluation study. So kind of taking a look at what the outcomes are for those individuals, those clients who receive PFJ services within the public defender's office, which is not all clients in all offices.

Many clients receive the standard services from very well-intentioned attorneys, but typically very overextended attorneys, and they receive the standard service. And then comparing those to the outcomes of the clients that receive PFJ services. And so PFJ is working with us to connect us to the leadership and public defender's offices across the country, as well as giving us access to their data that they collect separate from the public defender's office about which specific services they are connecting clients to and what the uptake of those services are, and what the final resolution is on referrals to particular services in the community.

Kate: So vis-a-vis this collaborative engagement with Partners for Justice and your team at Stanford, what is the impact that you all together working in partnership are aiming at?

John: There are a number of different dimensions. I mean, first again is the backdrop of the very, very harsh criminal justice system that we have in the United States. You know, for the first 70 years of the 20th century, we incarcerated at about the level of our European competitor affluent nations. But starting in the 70s, crime became a very politically volatile issue.

And the approach that was adopted through the political process was to ratchet up the harshness of the system. And so we went from incarcerating roughly 100 per 100,000 individuals, which is still what Europe does to, you know, 5 to 7 times that number. And so we're literally locking up millions of people for much longer periods of time. And of course, sometimes when people hear this articulation, they're saying, well, you know, you're not being sensitive to the social burdens of crime, but I do really feel very concerned about the social burdens of crime.

One episode in my life was very revealing in this regard, because I was in a conference in Milan actually talking about criminal justice, and a member of the panel that I was on was the head of the bureau system in Norway, and he showed us pictures of the Norwegian prisons and the main way in which they were treated in these prisons. I was blown away. Every individual was given like a kitchenette, a you know, two room suite, amenities beyond that you could ever imagine. And I said, oh my God, what is the recidivism rate like in Norway? Because this looks so great, you know, why would people not want to be incarcerated? And he showed me the numbers.

And the recidivism rate in Norway is only a small fraction of the recidivism rate in the United States. And that made me realize that we need a different approach, because you can hammer away at people and, you know, suppress crime to a certain degree. But you're throwing away a lot of human bodies when you're locking up millions of people over and over again.

And, you know, the typical sentence of a criminal defendant is two years. And so these people are cycling in. 70% of people released from state prison are re-incarcerated within three years. I mean, it's a striking number. And of course, not all of those who are coming out and committing crimes are getting caught. So it shows you that there is this cycle of violence and criminality that other countries, I think, are doing a better job (at a lower cost) of addressing. My hope and aspiration for this project, that we can help find a way to reduce both the overall cost of the system,because of course, lawyers are very expensive, the advocates for Partner for Justice are less expensive and hopefully we can both lower the cost, get better outcomes. But the highest hope, of course, is that we can save the lives of some of these individuals and protect society by reducing the victimization that would be occurring down the road.

Kate: So if we envision what it might take: what would it take to create a more equitable and fair indigent criminal defense system in the U.S.? I'd love to hear final thoughts from both of you on what you see in that vision.

John: There are lots of ways in which you can reduce crime overall. In fact, Eric and I have been working on a project that focused on how even preschool enrichment programs can lead to much greater reductions in crime than many other anti-crime measures. Again, it's not a politically popular approach sometimes because you're spending money today to reduce crime 15 years from now.But if you can do so in a cost effective way, in a much more humane way, I think that's beneficial. But our task here, of course, is to intervene later in the process, which means that you have to spend time with a smaller number because you're dealing with the people who have been identified as having a problem. 

Hopefully this will be something that if Partners for Justice achieves its goal and we achieve our goal of sort of identifying how successful Partners for Justice is, that will give the ammunition to politicians and legislators to say, look, there's a cheaper and better way to achieve our goals that's both more humane and more protective of society because I really just want to stress that we are very concerned, of course, with the safety of Americans, and our hope and aspiration is that a more effective criminal justice representation system can reduce these harmful outcomes by treating the pathologies that often lead to crime, that could be addressed. For people who live in relatively affluent communities, it really is hard to imagine the stressed lives that many young people live with.There may be a single parent. Sometimes the single parent has, you know, enormous, either mental or drug problems. And so these kids have just been treated very badly. And, you know, I'd like to see some earlier interventions. But, of course, if we have to treat every two-year-old who's living in a stressed environment, we're talking about treating a million and a half kids every year.

But if we treat the 16 year olds who have been brought into the criminal justice system, it's a much smaller number, and we can hopefully give them the guidance and the direction that will put them on a better path. 
 

Eric: To build on what John was saying, I do think that if we could show in our work here at Stanford, in close collaboration with PFJ and the pilot locations, whether that be in New Jersey, Delaware and Texas or elsewhere, hopefully in more locations in the future, if we can show how effective these collaborative defense service organizations are, we can then convince more counties and more jurisdictions to adopt and introduce and implement these kinds of reforms. And both the terms holistic services and collaborative defense are often used interchangeably. Although there is a push to adopt collaborative defense as the primary term which refers to these advocacy services. Again, so not necessarily legal services and also not social work services, but a combination of both types of services. And they function along three planes, if you will.

One is connecting clients to social services offered by whether it be local, municipal government or state or federal authorities, to help address those underlying causes, to translating, if you will, the arcane and complex terminology and processes as to what is happening in a particular client's case, translating it to the client so that they understand what is in fact happening to them.

And then the third prong is helping to bolster their case through whether it be witness statements, character references, other documentation, digital documentation, etc. that a client may have access to may be willing to provide, but they may not know to provide those things. And so PFJ Advocacy Services or Collaborative Defense services fill in those gaps so that those three areas are addressed.

And so if we can then have these kinds of services broadly available across the United States and public defender's offices and in every county, I think that would go a long way towards making the criminal justice system more equitable. And, while it may not be possible to be perfectly fair, but certainly approaching fair.