A lot of people I’m introduced to for the first time, hearing that I’m at Lawndale Christian Legal Center (LCLC) working for equal justice for young people caught in the criminal legal system in Chicago, bring up the widely-acclaimed 2019 movie “Just Mercy” starring Michael B. Jordan and Jamie Fox, based on the work of Bryan Stevenson and the Equal Justice Initiative. We usually talk about what a good movie it was and about the importance of EJI’s work providing legal representation to people who’ve been illegally convicted and unfairly sentenced to prison or death.
But then I often say, “Bryan Stevenson is a modern civil rights hero, but if we strengthened public defense, his work wouldn’t be needed. A strong public defense would prevent the injustices that Bryan works so hard to correct from happening in the first place.”
In the wake of George Floyd’s death last summer, the problems of over-policing for communities of color have become issues that growing numbers of people have been more aware of and it’s become a significant part of our national conversation. But the fact is, even though it’s not being talked about nearly as much, strengthening and elevating public defense is critical to ending over-policing, over-prosecuting and mass incarceration among black and brown men and women. If we miss this, we miss the most crucial piece of the puzzle in the fight for equal justice.
Change begins with awareness and education. That’s why I wanted to outline 10 crucial practices for public defense – basically, what we should want from all public defender offices, and the standards we should be holding them to, here in Cook County, and throughout our country. While these standards apply to clients of all ages, they are even more important when defending young people, like the youth and emerging adults we represent in Lawndale.
The most effective public defense is an interdisciplinary team composed of attorneys and social service providers. Public defenders need to get to know their clients as whole people. They need to understand their client’s family and community, existing social supports, unique social needs, and what, if anything, may have contributed to justice-involvement in the first place. The social dynamics of our lives form the basis of life-impacting decisions made by police at police stations regarding potential diversion, plea negotiations with the State, and whether we are in jail or free pending trial and after sentencing. For minors in particular, the Juvenile Court Act requires the court by law to understand the minor’s social realities and consider them in the disposition of their case. Accordingly, a holistic approach to defense works closely with the client’s family, community, mentors, other professionals, and is informed by numerous disciplines, including case management, outreach workers, developmental psychologists, mental health and public health officials, restorative justice practitioners, violence prevention, neurobiology, sociology, substance abuse counseling, and trauma informed care. Strong public defense is holistic and interdisciplinary.
A holistic approach to public defense requires defense attorneys to work in and closely with the local community. It’s impossible to understand the social landscape, opportunities, and needs of a client without working in and closely with their community. Only by working with the local community can a defender effectively offer solutions to criminal justice system personnel (police, state’s attorneys, judges, probation and parole officers) that ensure public safety through community-based interventions instead of system-based intervention (criminal records and incarceration). Working closely with local schools, community leaders, and service-providers, public defenders can discover how best to support their client, particularly youthful clients, while navigating the criminal justice system and the unique challenges they face in their community. We call this “community lawyering,” and the result is a significant decrease in criminal records and incarceration, particularly for young men and women of color.
Strong public defense equips public defenders with the knowledge, values, and practices of restorative justice. Particularly for minors, the Illinois Juvenile Court Act codifies and requires restorative justice practices as alternatives to traditional forms of punishment and punitive justice. Restorative justice is a holistic, community-led practice that focuses on healing the harm caused by crime within a community, instead of adding further harm to the local family and community by separating, isolating, incarcerating, shaming, and permanently labeling those who commit crime with lifelong criminal records. The qualities of a strong public defense build on each other like layered bricks of a wall – building on the foundations of a holistic approach working in and closely with the local community, public defense is also uniquely capable of advocating for and implementing restorative justice solutions for us.
Nearly half of those involved in our criminal justice system are youth, 24 and under. Decades of scientific research in developmental psychology, neurobiology, and sociology teach us that youth, 24 and under, are worthy of greater investment and specialized care. Equipping a specialized youthful defender unit with the resources needed to provide youth with holistic, community-based, restorative justice representation yields a greater return as fewer people 25 and older return to the criminal justice system.
If it was your child or loved one in jail, you wouldn’t sleep. Neither would I. But, according to some reports, “over 75% of those detained in local jails have not been convicted of a crime.” And the vast majority of them are being held for non-violent offenses. Being in jail pending trial is one of the most effective ways police, prosecutors, and judges keep the arrest-prosecute-incarcerate-repeat cycle going. Nearly any plea offer from the prosecutor sounds appealing when you’re in jail pending trial. And the harms of jail, particularly for youth, are well-documented. Every public defense lawyer should be aggressively trying to get their clients out of jail and back home, whatever age they are. To give you a sense of how important we believe this is, at LCLC, we do this for 100% of our clients in custody because to us, this is non-negotiable. Thankfully, the kind of holistic, community-based, restorative justice approach to public defense that we follow at LCLC is uniquely adept at keeping youth in community with support instead of traumatically isolated from friends and family in jail (pending trial and after their case is over).
Imagine going to a car dealership and accepting the sticker price on the window…as is. You wouldn’t, right? (If you would do this, I have a car I’d like to sell you…) This is the equivalent of a lawyer accepting the State’s Attorney’s Office first offer on a plea deal without any meaningful negotiation. In court, that negotiation is called a “mitigation package,” which includes documents, pay stubs, resumes, certifications, and awards that substantiate their client’s positive achievements. A “mitigation package” also includes letters of support from family, friends, school teachers, service providers, and community members that outline the positive social supports in their client’s life and expresses their support of the specific favorable plea deal requested by the defense. Particularly for young people, the mitigation package also outlines services available to the defendant in their community that can address some of the underlying needs that might have led to criminal justice involvement in the first place. Lastly, the mitigation package outlines in detail the unique sympathetic facts of the case (like being an accomplice, understanding circumstances fully, age, no background, etc). Again, the holistic, community-based, restorative justice approach to public defense is uniquely capable of putting together robust mitigation packages for 100% of clients.
To put this in perspective, it is important to understand that 97% of federal convictions and 94% of state convictions are guilty pleas. In other words, despite the depictions of Hollywood, very few cases actually go to trial. It goes without saying that if 94%-97% of a public defender’s job is to succeed in plea negotiations, then a strong public defense must excel at negotiating a favorable plea for defendants for it to be effective. Ineffective plea negotiations that lack robust mitigation packages is one of the primary reasons why residents in North Lawndale have huge felony conviction rates and huge average jail sentence rates.
Too often, defense attorneys rely solely on the State’s inability to prove their case, instead of actually formulating their own investigation and theory of defense. A strong public defense conducts its own independent investigation of a crime and does not rely solely on the police and State’s Attorney’s evidence to formulate their defense. This practice is critical to holding police and prosecutors accountable to an accurate fact-finding process. This includes not only the most basic issuing of subpoenas, but also visiting crime scenes, interviewing witnesses, and gathering other physical evidence not gathered by the police. This requires that we adequately fund and equip public defense. At this point, it should be no surprise that the “community lawyering” approach outlined above makes it easier for public defenders to lead their own investigations. Community lawyering places attorneys closer to local police stations, crime scenes, and witnesses, and gives them an ongoing and always growing familiarity with the communities they are representing. The advantage of community lawyers is not only in understanding our client’s social realities, there are efficiencies produced in building your investigation and case for defense.
One of the most effective ways public defense can hold police and prosecutors accountable for violating the civil and constitutional rights of all people, but particularly black men and women who suffer violations more often than others, is to ensure a robust pre-trial motion practice. The basis for filing nearly every pre-trial motion in a criminal case is to confront police and/or prosecutors who have violated a client’s constitutional rights. These violations, as seen in Bryan Stevenson’s film “Just Mercy,” can often be flagrant and extreme. Without a robust pre-trial motion practice, however, just as in the case of Walter McMillian, those police and state practices go unchecked and unchallenged, and become a normal part of our criminal justice culture and practice. A nationwide robust pre-trial motion practice implements the checks, balances, and accountability needed to ensure fair and just police and prosecutor practices. A strong pre-trial motion practice also leads to better legal outcomes for clients as the threat of suppressing key evidence often results in cases being dismissed or charges reduced in plea negotiations.
Implicit racial bias exists in public defenders, as much as it does in police officers, prosecutors, judges, and the culture at large. According to Song Richardson and Phillip Atiba Goff, implicit biases can affect the judgements of public defenders, including non-white public defenders, even if they “are committed to zealous advocacy, and consciously and genuinely reject negative stereotypes and attitudes about marginalized populations.” Unfortunately, public defenders often feel immune to racism because they are so frequently defending non-white clients, and it continues to go unaddressed. Accordingly, it’s crucial for the public defense community to examine the inherent racism that affects them and the way they represent (or don’t represent) their clients. In addition to addressing this through training, a public defense model that takes a holistic approach while working in and closely with the community is a great start toward developing the human connection, trust, and relationship that breaks down racial stereotypes and exposes racial bias. Bryan Stevenson calls this getting proximate, and proximity forces us to address our own racial bias.
State’s Attorneys, prisons, and police are consistently under rigorous scrutiny and evaluation. Yet, there is little data and research on effective models of public defense. The lack of data, research, and evaluation is a serious problem that enables ineffective practices and stifles innovation. Given the immense responsibility of the Public Defender’s office, we need Public Defenders that support transparent, rigorous, independent research and evaluation
If you care about equal justice and you believe Black Lives Matter, please join in the fight to strengthen public defense. Reading this blog was a great first step. We hope you’ll continue to learn more about this and will pay close attention to the public defense work in your city. Perhaps you could even use the practices I outlined as a kind of litmus test, as you speak up and advocate, wherever you are, for a public defense approach that is truly grounded in real justice for ALL.