Public Defenders Have An Obligation To Speak Out

In the last few weeks, there have been at least two occasions to reflect on the role of public defenders in the movement to end mass incarceration and the suffering caused by it. Both relate to bail reform.

The ACLU of Pennsylvania, along with other allies, filed a lawsuit last March against six magistrates in the Philadelphia area, arguing that they routinely violate rules laid down by the state Supreme Court pertaining to pretrial release determinations, resorting too often to requiring the payment of cash bail and, as a result, detention on the basis of poverty. The determinations were quick and defendants were not represented by lawyers. After witnessing 2,000 bail hearings, the organization concluded, as the deputy legal director told the Associated Press, that judges were “making decisions about people [sic] lives that will cost them their jobs, apartments and custody of their children in the time it takes to brush your teeth.”

Until last month, Dean Beer and Keisha Hudson were the chief public defender and the second highest-ranking public defender in Montgomery County, outside of Philadelphia. In early February, Beer and Hudson filed an amicus brief in the ACLU-PA lawsuit.  On Feb. 26, the county’s Board of Commissioners fired them, in what appears to have been an effort to punish them for filing the brief.

In the brief, Beer and Hudson explained their interest in the case:

“Our office has a substantial interest in this matter,” they wrote. “The law governing bail practices directly affects our clients, their families, and the communities we serve.” They explained their office’s philosophy: “We are a community-oriented defender organization that recognizes the inherent link between access to justice and access to healthcare, housing, education, and employment—all of which are hindered when cash bail is improperly and excessively imposed on clients.” And they described their expertise and experience. “We witness first-hand the multitude of individual and community harms caused by dysfunctional bail practices that result in unnecessary and prolonged pretrial detention. In addition to the human cost of unnecessary and disproportionate overincarceration, such practices create obstacles to the preparation of the defense, negatively affect case outcomes, and cost our office and the county taxpayer money.”

No official reason has been offered for the firings. Last week, Radley Balko of the Washington Post looked at the many problems with the decision. Balko wrote: “Public defenders are on the front lines of the criminal justice system. No one gets a better view of the day-to-day problems in the country’s courts. While much has been said (but less has been done) about the funding crisis in indigent defense services, it’s also vital that public defender offices be free from political pressure.”

The ACLU of Pennsylvania began a petition online calling for the defenders’ reinstatement. The petition describes how Beer and Hudson “have been excellent and effective defenders in Montgomery County, providing much-needed defense to poor defendants while working to reform how the county uses probation and cash bail.” It continues: “Nobody should lose their job because they are good at it. Your action has a chilling effect on public defenders across the state who are trying to represent their clients.”

At a rally before the county commissioners meeting on Thursday, more than 100 supporters of Beer and Hudson gathered to call for them to be reinstated. At the meeting, commissioners said they had no plans to reinstate the two defenders but would “explore how to make the public defenders’ office an independent entity outside of government oversight, similar to the system used in Philadelphia,” reported the Philadelphia Inquirer.

The terminations highlight the peculiarities in how Pennsylvania funds indigent defense (through counties rather than the state), the ways in which the funding of public defender offices leaves them vulnerable to political pressure, and the ways in which compromising the independence of public defenders compromises their ability to represent the experiences of their clients and advocate based on that knowledge.

Beer and Hudson’s brief is a reminder of why this advocacy matters. They detailed the experiences of some of their clients who were detained while awaiting trial. The first story told in the brief is that of a teenager who was breastfeeding her baby when she was arrested, for the first time in her life. At a hearing where she was not represented by counsel, she was charged with a violent offense involving another woman and a judge ordered her jailed unless she could pay $50,000 in bail. Because she was unable to pay, she went to jail for more than a month. She was separated from her child for the entire time and was not allowed to pump.

Because pretrial detention has become so routine, the suffering it causes is normalized. In discussions, the trauma of being jailed and the cascade of consequences for health, family, housing, employment, and education can be reduced to an abstraction. But the specific stories that cut through our collective numbness are not exceptional, they are representative. Listening to public defenders is no substitute for listening to people who are themselves jailed. But too often people with open criminal cases face demonization in the media or risk negative outcomes in their cases if they speak out.

In an opinion article last week, Emily Galvin, a former public defender, described why the voices of public defenders like Beer and Hudson matter and why they should not be punished for their advocacy. “What happened in Montgomery County,” she writes, “was an abandonment of justice. Expecting our courts and lawmakers to consider the stories of impacted people is the bare minimum of what we should demand in a fair system and society. Seeing those same officials use the power of their office to punish public defenders for offering the truth—in a formal, measured, and appropriate way, no less—is a shame that will mark the county for years to come.”

The role of public defenders has also been at the forefront in New York. In the last two months, law enforcement and some elected officials in the state have sought to roll back bail reforms that were passed last year. Weeks after the law went into effect on Jan. 1, opponents began blaming them for an uptick in crimes in certain categories of offenses. There have been many questions about whether these numbers represented a meaningful trend or were merely one of many short-term fluctuations.

Last week, a coalition of public defender offices in New York City released a statement calling into question the NYPD’s figures that show increased numbers of crimes in certain categories (car thefts is one example). Jake Offenhartz wrote for Gothamist: “Within weeks of the new laws taking effect, New York’s Republicans, police leaders, tabloids, and bail bondsmen all linked the reforms to a major crime spree. But defense attorneys say there was actually a 20 percent decrease in complaints docketed to courts in the first two months of the year, and a 17 percent drop in arrests.” (Christopher Robbins, also of Gothamist, delved into the NYPD’s history of adjusting crime statistics.)

When asked about the public defenders’ claims on Friday, on “The Brian Lehrer Show,” Mayor Bill de Blasio said he thought the public defenders should be “ashamed.” The mayor’s unequivocal, forceful response is indicative, perhaps, of a political and media climate in which he fears no political consequences for being dismissive of public defenders (whose offices are funded by the city) when they speak about what they see in court every day. The response from public defender offices was exemplified in this tweet from Tina Luongo, head of the criminal defense practice at the Legal Aid Society: