Tag Archives: justice

Tuesday Talks: Drugs & Criminal Justice

On Tuesday, August 9, Greater Scheme contributors John Buterbaugh and Patrick Wood discussed drugs and criminal justice with guest contributor David Liggera.
JOHN BUTERBAUGH: Okay, so, we’re discussing Drugs & Criminal Justice today. David, why don’t you start off by touching on some of the issues you’re seeing and some potential solutions to those problems.
DAVID LIGGERA: I suppose the first example that comes to mind is Obama’s recent commuting of… 214 drug-related sentences? The idea that a minimum punishment exists for possession, and that it’s as byzantine as it is, is truly worrying.
JOHN: I think Obama commuting sentences is a good step in the right direction. Unfortunately, the problem is that there are so many more of these cases at the state level, and I haven’t heard of many instances of governors commuting drug-related sentences other than Terry McAuliffe in Virginia. His motivation was different though. He wasn’t trying to eliminate non-violent offenses from a felon’s record but rather he wanted to restore voting rights to people convicted of a crime, many of whom were African-American.
DAVID: That too – current drug laws seem to disproportionately affect minority populations. It really is worrying, especially with regards to voting rights. Does possession really warrant surrendering such essential civil liberties?
JOHN: Absolutely not. I mentioned in an article earlier that the War on Drugs was a deliberate attempt to discriminate against the black community. It’s simply destroyed their community rather than stop drug addiction. We need to focus on treating it as a public health issue, and we need to put the pressure on our elected leaders to change it.
PATRICK WOOD: I agree. The Drug War is deeply racist in its implementation and enforcement. Some of the evidence is extremely clear. For instance, whites and blacks use marijuana at very similar rates, yet black Americans are punished for it 3-4 times as often. Stiff penalties for drug use do very little to curb addiction. In fact, jail time lowers one’s employment prospects after release, which may lead to more drug use, or perhaps violent crime. I think all drugs should be decriminalized, if not legalized.
John is absolutely right, it’s time to treat drug use and drug addiction as a serious public health problem, not a criminal one.
JOHN: I wanted to ask either of you guys how there is such a high incarceration rate in America. There surely is no way all though inmates are in there for drug-related “crimes,” but is there? What am I missing here?

DAVID: Absolutely! I think such a change in public perception would be vital to bringing forth positive changes.

Don’t use this in a paper, but this page suggests that the prison population exploded in the 1980s, and that most offenders (60%) are nonviolent. (The Facts about American Prisons: Separating economic myths from economic truthsreason.com)
PATRICK: I think Ending the War on Drugs would decrease our inmate population by over a third. I believe about a third are currently there for drug-related offenses. Others may be there for something they did as a result of their inability to make a living in an honest way – a criminal record hampering employment opportunities.
JOHN: There are still 40% of them being violent offenders. Was law enforcement creating harsher sentences for less serious violent crimes? And would eliminating the drug offenders from our prisons knock us off from having the #1 highest incarceration rate in the world?
PATRICK: I imagine lowering the population by 33%+ would do so, absolutely.
JOHN: I think Patrick brings up a good point. The recidivism rate, or the rate at which people continue to commit undesirable behaviors, is an issue.
PATRICK: I think the Drug War actually induces people to engage in illegal activity they otherwise wouldn’t. The clearest example is someone who is a nonviolent hard drug user or seller who is mixed with violent inmates in prison and emerges without job prospects. S/he may turn to violent crime after release.
JOHN: If we use the data from PrisonStudies.org, it looks like the U.S. would drop down a few places but it would still be the industrialized nation with the highest incarceration rate. But that recidivism rate could be an indirect result of drugs and that would go down more if we help those on parole get a job and move on with their lives.
DAVID: Pretty much – I mean, compare our prisons to those in, say, Norway. We seem to focus much more on punitive methods (Ie, we’re going to punish you as hard as possible) rather than, well, more restorative methods. I agree with both of you, prisoners simply aren’t given tools to move toward another path.
JOHN: And the Netherlands has such low crimes they are taking prisoners in from Belgium, I think! Why don’t we do that? If we’re addicted to incarceration because it does provide jobs, why don’t we just import prisoners, like, I don’t know, from Guantanamo Bay? (And they were taking in prisoners from Belgium because they wanted to fill in prisons.)
PATRICK: Can I just butt in to say how sick it is that we have private prisons? This is a whole industry that wants/needs a high incarceration rate.
JOHN: But how do we challenge that? How do we get rid of that? It’s a big money deal. It’s quite a Goliath, and I feel like David without a stone.

PATRICK: Raising our voices is a start. And David beat Goliath. Progressive outrage over this system has even gotten Hillary Clinton, a centrist Democrat, to say it’s flawed.

DAVID: Admittedly, I don’t have a stone right now! And yes – I do think that public perception about private jails and drug sentencing is starting to change in a more progressive manner. It really just does seem like something that will just take some time to change.
JOHN: And what is the real difference between privatized prisons and public prisons? It sounds like taxpayers are still paying for the privatized ones. So, what? Is it like a 5% discount? Buy one prisoner, get one free? And I’m partly joking, but I think that’s fair because the whole system sounds like a real joke.

PATRICK: It is. And not only do we have people in prison for silly reasons, we have placed them in uncaring hands. The more the private company that owns and runs the prison skimps on providing for the inmates, the more money they make.

DAVID: It’s truly disgusting.

JOHN: Now I’d imagine at least one of you has seen Orange Is the New Black. What do you think of the show presenting an accurate picture of the system? Do you think it’s a truthful depiction or is it simply a show that aims to be entertaining? I know it’s based on a book about real events so…
PATRICK: Interesting you should mention that. In OITNB, Litchfield prison goes from public to private and the quality of living of the inmates goes from poor to abysmal.
DAVID: I’ve actually never seen it! I don’t watch much TV.
JOHN: I mean, I know for sure they took some liberties with the characters and all…
DAVID: I hate to say it, but it makes sense. Now every liberty and luxury the prisoners have is a hit to your bottom line.
PATRICK: I like that they included “Crazy Eyes”. A staggering percentage of gen pop in our prisons suffer from mental illness.
JOHN: And they probably don’t do enough to treat those people.
DAVID: Or anything at all, really.
JOHN: It really seems like an excuse not to take any responsibility for other human beings. And they just play it off as criminals being criminals and deserving everything they get
DAVID: Yep – gotta love the Just World fallacy.
JOHN: Are either of you familiar with Bryan Stevenson’s work? He just published Just Mercy — it looks really interesting.
DAVID: I am not!
PATRICK: Sadly I am not either.
JOHN: It’s a memoir about his experience defending an innocent man on death row. He touches on the issues with criminal justice. One example is that we don’t treat veterans with PTSD when they come back to the states and they up having either health or behavioral issues, get locked, become homeless, what have you. And it’s a greater cost to society to have people without homes. They had a housing first program in Utah that eliminated the costs of law enforcement and health interventions when they simply gave people homes.
PATRICK: Ah, yes, that was initiated when Jon Huntsman was governor. There are few Republicans I’d be happy seeing in the White House, but Huntsman might be one. It seems obvious in a way. I’m glad someone actually did it.
DAVID: It definitely was a step in the right direction!
JOHN: All right, I gotta go get dinner, guys. Let’s meet again next Tuesday.
PATRICK: Thank you for hosting this, John. This is a hugely important topic, and I’m optimistic positive change will arrive soon.

Indigent Defense Crisis in the U.S.


In criminal cases in the United States, those who are too poor to hire a private attorney will have an attorney provided for them. In many jurisdictions, these attorneys are from a public defenders’ office, wherein all attorneys are paid by the government to represent these indigent individuals. The prominence of public defender’s offices is largely a result of the 1963 Supreme Court case known as Gideon v. Wainwright.

Clarence E. Gideon (pictured) was a man who lived in poverty and had been committing crimes of theft since he was a teenager. After being arrested in Florida for petty larceny in 1961, Gideon had no money for a private attorney and argued at his trial that he was entitled to be represented by counsel. The court declined to provide counsel for Gideon, and the court stated “Under the laws of the State of Florida, the only time the Court can appoint Counsel to represent a Defendant is when that person is charged with a capital offense.”[1]

Gideon was forced to represent himself. The jury in the Florida court found Gideon guilty and Gideon was then imprisoned. From prison, Gideon wrote a handwritten petition to the Supreme Court. It was riddled with spelling and grammatical errors. Amazingly, the petition caught the attention and interest of the United States Supreme Court. The Court examined Gideon’s case and in a unanimous decision decided that the right to counsel applied both to capital and non-capital cases.[2] Gideon was re-tried, this time a lawyer was provided and the trial ended in an acquittal for Gideon.[3] The Sixth Amendment provides crystal clear justification for the Court’s landmark decision. It entitles the accused to “have the Assistance of Counsel for his defence.” It makes no distinction between capital and non-capital offenses.[4]

Despite the court’s revolutionary decision that afforded an attorney to every defendant in misdemeanor and felony cases and continues to be celebrated by public defenders, indigent defense in criminal courts is weak in the United States. The poor do not receive the same quality legal defense as those wealthy enough to hire a private attorney. The dire condition of indigent defense in the United States can be attributed to many different causes.

Public defenders are burdened with caseloads so immense they can only afford to spend minimal time meeting their clients and discussing their case. The vast majority of cases in which a defendant is represented by a public defender are not taken to trial but are plea bargained away.[5] In a plea bargain, the prosecution is guaranteed a conviction as the defendant, acting on the advice of their counsel, pleads guilty to charges somewhat less serious than the initial charges. This still results in serious consequences for the defendant, and many are incarcerated without a full trial.[6]

Public defenders are often very motivated to plea bargain because it saves them a great deal of time and they are simply unable to take every case to trial. The caseloads of public defenders have been so overwhelming that the U.S. Justice Department declared a “crisis” in the country’s courts. Their 2001 report “Keeping Defender Workloads Manageable” drew on reports from around the country, documenting how public defenders were handling anywhere from 200 to 2,225 felony and misdemeanor cases a year.[7] On the other hand, private attorneys would consider even 100 clients an enormous workload. This is because they can refuse to provide counsel, especially to those who cannot afford it.

The Constitution Project released a 2009 report stating that “sometimes counsel is not provided at all, and it often is supplied in ways that make a mockery of the great promise of the Gideon decision and the Supreme Court’s soaring rhetoric.”[8] The Constitution Project’s allusion to the decision’s “soaring rhetoric” is a reference to such statements from Justice Hugo Black’s majority opinion as “There can be no equal justice where the kind of trial a man gets depends on the amount of money he has” and “…lawyers in criminal courts are necessities, not luxuries.” [9] The Constitution Project wrote in their report that public defenders are now providing second-rate defense for their clients, but through no fault of their own. Due to their enormous caseloads the attorneys were simply unable to provide the same quality defense for their clients as private attorneys. The report reads,

“Sometimes the defenders have well over 100 clients at a time, with many clients charged with serious offenses, and their cases moving quickly through the court system. As a consequence, defense lawyers are constantly forced to violate their oaths as attorneys because their caseloads make it impossible for them to practice law as they are required to do according to the profession’s rules. They cannot interview their clients properly, effectively seek their pretrial release, file appropriate motions, conduct necessary fact investigations, negotiate responsibly with the prosecutor, adequately prepare for hearings, and perform countless other tasks that normally would be undertaken by a lawyer with sufficient time and resources.”

The lack of resources afforded to public defender’s offices is the primary reason they are perpetually understaffed and their employees are overworked. There is no law regarding how much a state must pay into public defender programs, and some states place the burden of funding entirely on the county in which the public defender’s office operates.[10] The understaffed offices must see their attorneys burdened with absolutely crushing caseloads so every defendant may have counsel. Amazingly, 80% of all criminal defendants in the United States are represented by public defenders.[11] The Constitution Project report stated that failing the poor by underfunding indigent defense would ultimately cost society a great deal in the long run. They noted that “state and local governments are faced with increased jail expenses, retrials of cases, lawsuits, and lack of public confidence in our justice systems.” Further, “in the country’s current fiscal crisis, indigent defense funding may be further curtailed, and the risk of convicting innocent persons will be greater than ever.”[12]

NOTE: My objectives in writing this piece were to dispel the myth that public defenders tend to get inferior results because they are inherently inferior attorneys, to point out the disparity in quality of defense obtained by rich and poor defendants, and to highlight the need for more resources, funding and staffing to be directed to pubic defenders’ offices in order to provide desperately needed caseload relief and raise the quality of defense provided to each individual defendant.