Meeting Needs

Criminal Defense Requires More Than Just Criminal Defense

November 14, 2023
/ Author: Rick

First, I want to say that, on average, I think public defenders are better attorneys than private attorneys. There are definitely some counties I could name where that is not true. (Fresno, though, has a most-excellent Public Defender Office, and they’ve been meeting the needs of people and kicking ass bigtime for a while now!)

If you want to know why I think that way about them, read my post called “Public Pretenders.”

This article reminds me of the great innovative work public defenders do. It also reminded me of what I try to do differently in my office to provide what I hope is the best possible fight, and gave me ideas for improving on meeting the needs of the people I defend.

The Average Attorney is Not Meeting Needs

A humongous number of people who get in trouble with the law do so because of, shall we say, “personal issues.”

But lawyers are not social workers; they do not have the time or the skills to help their clients deal with those problems, even if those problems contributed to their criminal behavior in the first place and may do so again in the future.

— Sue Halpern, “How a New Approach to Public Defense Is Overcoming Mass Incarceration” (October 5, 2023)

As the founder of a unique program aimed at meeting needs that have gone unmet before pointed out,

If you are a defender practicing in an office where there are only criminal-defense attorneys, it’s like being in a hospital with no nurses.

— Emily Galvin-Almanza, quoted by Sue Halpern, “How a New Approach to Public Defense Is Overcoming Mass Incarceration” (October 5, 2023)

A New Approach to Meeting Needs of the Accused

What is this New Approach?

But what if we could add the equivalent of nurses to work alongside attorneys?

A “new approach” pioneered by Partners for Justice is to embed teams with the specialized skills needed to work collaboratively with both the defense attorneys, and the people the attorneys represent. These teams consist of members who have skills to add to that of the criminal defense attorney. They include people skilled at mitigation, or knowledgeable about mental health, or drug programs, which enables the combined forces of the public defender programs within which they work to take a holistic approach to the people they represent.

Partners for Justice has programs to train people in these areas. I’m told they even train attorneys! (I’ve written to them to ask about this.)

Mitigation skills include learning to listen, but also knowing where and how to find data from which to construct a person’s story. Hearing a person’s story can help get judges to do what they should, but too often do not do: think of the accused individual as a human being. And, done right, it might inspire them to help, as one human being to another.

Instead of ordering harmful things (like prison), they might order helpful things (like counseling, training, wraparound services).

Can This Approach Work?

Does it work? According to the article,

study by researchers at the University of Pennsylvania Law School and the Rand Corporation found that, over ten years, defendants represented by the Bronx Defenders spent more than a million fewer days behind bars, and well more than four thousand people avoided jail time entirely.

— Sue Halpern, “How a New Approach to Public Defense Is Overcoming Mass Incarceration” (October 5, 2023)

These numbers, from but one defenders office, might seem outrageous. But considering these facts can boggle your mind even more:

  • Authorities arrest more than 5 million people in the United States each year
  • Authorities re-arrest one in four of those people more than once in that year
  • One in 37 people is under some form of correctional supervision (that’s 7% of the population)
  • Forty-five percent of Americans have an immediate family member who has been locked up
  • Nine million people cycle through local jails each year
  • More than two million people are currently locked up
  • Another four-and-a-half million people are on probation or parole
  • All of those people have friends, families, and communities who will be impacted by what happens to those who come under the boot of the system

Suddenly, it’s easy — at least for those of us who really sit down to think about it — how much time can be saved it we work to really meet needs, and not just “resolve” or “process” “cases.” Let’s remember that these are, by the way, people (not “cases”). So the time we are saving is lifetime.

We sorely need this new approach. Careful attention to needs, and not incarceration, is the solution.

My Own Experiences Meeting Needs

The Starfish Chronicles

Regular readers may be getting sick of hearing my Starfish Stories. For me, they are the very reason I do what I do. If it weren’t for the knowledge that there are so many starfish in need of the work I do, I can tell you I would absolutely give up on our depraved and decrepit criminal injustice system.

Before I go on, here’s another article of mine that gives greater detail on why I use the “starfish” metaphor. Every aspect of this metaphor informs me. I talk about how most starfish live, and what they do. I discuss the ways starfish end up beached. You’ll learn about the Old Man (the Judge, or a Prosecutor) who see returning starfish to the ocean (their families, and communities) as futile. And you’ll see me — and every other defender you can think of — fighting against futility.

So I work not just to defend people — remember starfish is just a metaphorical way of talking about people in need — but to fight the system. As we used to say back in the day, “I fight The Man.” I defend people even when defending appears impossible. In that case, finding services, and developing mitigation, becomes even more important.

Our System is Built to Make Life Hard for Starfish

But, mitigation is tough. For reasons that completely elude me, our system — and most of those who work within it — would rather cause further (often significant) harm to the starfish. As I wrote in my other article:

The [judge] sits in judgment. But the judge has become jaded. Long ago, he decided throwing starfish back to the sea is just a game without a point. Starfish just sometimes get washed ashore. You — the Saviour of Starfish — maybe don’t like it. But, it’s the name of the game. You deal with it. You move on.

— Rick Horowitz, “Finding Humanity: Criminal Defense Lawyers Defend People” (August 1, 2021)

And far too many criminal defense lawyers see it just that way, too. It’s not that they don’t try to get the starfish back to the ocean. But unlike the original Starfish Story, where the Old Man just scoffs at the idealistic youngster, in our criminal injustice story, the judge actually can block our throw.

Thus, many defense attorneys — though, again, trying to fight the good fight — succumb to the idea that losses happen, but we deal with it. We move on.

Yet, as I also noted:

The starfish, if you succumb to his view — if you give up, can’t change [the judge’s] mind, or find someone who can — doesn’t.

— Rick Horowitz, “Finding Humanity: Criminal Defense Lawyers Defend People” (August 1, 2021)

Doesn’t “move on,” that is.

If I Don’t Fight for Starfish, Who Will?

In my own experiences, I’m often unable to deal with it, and move on. I suppose, in some ways, my own life would be better if I did. But then I have nightmares about starfish. Everyone of them has the face of a person I’ve met, screaming out for me to help them back to the ocean.

And so I’m constantly striving to find a way to do what I do, but better.

For now, that means reading what I can about mitigation, persuasion; finding programs that can help the people I represent (and their families!); seeking out training, such as offered by Partners for Justice.

Here’s hoping my recent letter to Partners for Justice helps me to get better at plucking starfish from the dung pile prosecutors and judges prefer, and throwing those starfish back where they belong into the ocean their families, and communities, with new tools to help them thrive.

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  1. Denise Jacquelyn Chaffee says:

    I am in awe of what you do and the lengths you will go to help people. This post gets to the heart of you. We need more defenders like you. And judges and prosecutors to actually listen.

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