How can we reduce mass incarceration? Policy advocates in the past have argued we should decriminalize some drugs, or end mandatory minimum sentences. Today, many activists argue we need to elect more progressive district attorneys and prosecutors.
But one group that could have a major effect on prison populations is often ignored: public defenders.
Public defenders aren’t senators or presidents; they don’t get a lot of time in the media spotlight. As a result, it can be easy to forget them when thinking about criminal justice policy. But while mass incarceration is a national problem, it is fueled by local decisions and actions. The nitty gritty, small-scale effective administration of justice for individuals can add up over time and be just as effective as sweeping policy changes.
Public defenders may be neglected, but researchers and policy makers have begun to show the connection between prosecutors and the prison boom. Individual prosecutors have great discretion in how they charge crimes, and in what prison sentences they ask for. John Pfaff, a professor of law at Fordham University, has analyzed filings in state courts which show that prison populations ballooned over the 1990s and 2000s largely because of prosecutorial decisions.
Pfaff’s data set started in 1994, and showed that at that time, one of every three arrests was charged as a felony case. By 2008, which is when the data set ends, the number had doubled to two out of three arrests charged as felonies.
In response to this information, progressives have been pushing to elect reform-minded prosecutors who are committed to reducing unnecessary felony charges and reducing prison populations. Kim Ogg in Houston, for example, has decided not to prosecute many marijuana cases. Larry Krasner in Philadelphia has ordered his prosecutors to offer plea deals that start at the lower end of sentencing guidelines, rather than pushing for the longest possible prison time.
John Pfaff told me that he believes reforming prosecutors such as Krasner and Ogg can have a long term effect. However, he points out a couple of caveats.
First, he says, reform prosecutors are generally only elected in places with progressive voters — which generally means urban counties. Rural areas are much less likely to elect such prosecutors. “Decarceration since 2010 hasn’t really been the United States decarcerating, it hasn’t even really been the story of certain states decarcerating,” Pfaff says. “It’s been the story of urban counties in a lot of states decarcerating. While smaller counties actually are sending more people to prison than in 2010.”
The other limitation of electing progressive DAs, Pfaff says, is that especially in large urban offices, DAs may have limited control over policy. A progressive DA can order people not to set bail for marijuana offenses, for example. But subordinates may push back, or drag their feet in implementing the policy. Kim Ogg recognized this problem, and fired 37 veteran prosecutors as soon as she took office, because she felt that progressive change required a new management team. However, even with a large-scale upper management changeover, it takes time to shift priorities that have been entrenched for decades. Prosecutors have long worked to put people behind bars for as long as possible. Changing that will take time.
In theory, public defenders are supposed to provide a counterweight to prosecutors. Public defenders work to make sure that indigent defendants have advocates who work to reduce their sentences, or to find evidence suggesting they shouldn’t be sentenced at all.
Unfortunately, public defender offices are in a state of crisis. State governments have slashed budgets for public defenders, leaving thousands of defendants without adequate representation. In 2017, the ACLU sued Missouri’s public defender system, in which PDs find themselves with three times as many cases as they can handle. The Southern Poverty Law Center is suing Louisiana in a similar case on the grounds that the ill-funded system fails to provide adequate defense for the indigent.
In an article in the Georgetown Journal of Legal Ethics, Colleen Cullen writes that “public defense offices across the country are in crisis and the primary reason is the lack of adequate funding.” Cullen also points out that public defender offices often lack investigative staff, which means that public defenders do investigative work themselves, further reducing the amount of time they can spend in court or on legal work.
When defendants don’t get adequate representation, they receive longer sentences. Even before trial, without adequate defense the accused may be hit with high bail, which means they end up sitting in jail before they’ve even been convicted of crime; 500,000 pre-trial detainees spend time in jail every year. In contrast, Cullen told me, during her own time in the well-funded Georgetown legal clinic, not a single one of her clients was sentenced. “Just looking at my own personal anecdotal experience, the more time and effort you’re able to put into your case, the better outcomes you’ll see for your clients.”
Cullen recommends that states need to hire more public defenders. But John Pfaff and others have pointed out that there is also a potential national solution. Congress has the power to allocate national funds for public defenders, if it chooses to do so.
Currently, Pfaff told me, national spending on indigent defense is somewhere around $4.5 billion dollars. Congress could double that by spending $9 billion a year — a fraction of the roughly $200 billion spent on criminal justice each year.
A national grant for public defense would face some logistical barriers. Some states might try to cut their own funds for defense when they receive the grants. Some states have no central office set up, so distributing funds could be difficult.
However, there are advantages to the national funding solution over the attempt to simply hire more defenders. Putting in place reform prosecutors requires winning numerous elections and then engaging in a long bureaucratic fight. Money for public defenders just requires putting it on the national Democratic agenda, and then waiting until a Democratic Congress is in place. The overall cost is relatively low, and Democrats have been more and more open on the national level to criminal justice reform.
Adequately funded public defender offices could reduce sentences across the country, and start to roll back some of the worst excesses of mass incarceration. Just as important, Pfaff says, public defenders with adequate resources could hold prosecutors accountable when they say they want to reduce sentencing. If a reform prosecutor says she wants to stop prosecuting cannabis cases, public defenders are in a position to report on whether such a policy actually goes into effect.
At the moment, public defenders can’t even provide adequate defense for their clients. But if their offices were actually funded and fully staffed, they could start serving as a check on prosecutors in the political arena as well as in the courts.
Those charged with keeping people out of prison year after year, day after day, are public defenders. If we want to reduce mass incarceration, we should make sure they have the resources to do their jobs.