Introduction 876 I. Lesson 1: Myth Versus Reality--Crime Is Not What You Think It Is 881 A. Criminality and the War on Drugs 885 B. Bias by Police, Prosecutors, and Judges in the Criminal Court Process 887 II. Lesson 2: Poverty Is a Pipeline to Systems Involvement 890 III. Lesson 3: No Civil Consequence Is "Collateral" 893 IV. Lesson 4: We Need a Civil Gideon 896 V. Lesson 5: We Are All Defenders 899 Conclusion 901 INTRODUCTION
I am a civil public defender. (1) When most people think of public defenders, they do not think of me. They think of overworked, underpaid, under-resourced criminal defense attorneys who have too many cases to count; they think of the attorneys who bargain guilty pleas on behalf of their clients, and who struggle to remember one client from the next. They picture the "meet 'em, greet 'em, and plead 'em" approach--all taking place in criminal court.
As a public defender who engages in holistic defense, (2) I work utilizing a model that centers clients and acknowledges the forces that drive people into criminal court and other legal systems. Holistic defense requires collaboration across disciplines to serve clients beyond an accusation, and to mitigate against the instability that results from an arrest or other systems involvement. (3) Our clients are people, not just cases. Our focus is to radically transform how people are represented in the legal system, and to create lasting change for the communities we serve.
Civil attorneys and advocates like me work with criminal defense attorneys, social workers, investigators, family attorneys, immigration advocates, community organizers and other partners to offer vital information and creative solutions to our clients who are experiencing overwhelming crises. Working together with our clients, we fight to ensure their voices are heard and their humanity is acknowledged. I am a part of a growing group of non-criminal advocates redefining what it means to be a public defender. As holistic practice continues to gain recognition for its results, (4) there is also greater acknowledgement that we need a diversity of roles and expertise to best serve and impact communities most affected by poverty, inequity, mass criminalization and mass incarceration.
As a public defender in civil spaces, I regularly bear witness to the extended reach of systems involvement. By "systems involvement," I mean that when individuals stand accused of a crime, they are swept up in far more than the criminal court process alone. (5) Rather, they are also trapped in a web of other, equally oppressive legal systems that may affect their ability to keep a job, a home, their government benefits, their possessions, their children, or even their right to remain in the country. (6) In addition to facing criminal penalties, fees, fines and the loss of liberty, less understood are the host of civil punishments, sanctions, disqualifications and forfeitures a person who stands accused will almost certainly experience, sometimes in perpetuity. All that is needed is an accusation to trigger sometimes insurmountable consequences stemming from law enforcement contact. Regardless of whether a person fights the case, is found not guilty, pleads to a lesser charge, or gets the charges dismissed, that individual and those closest to them will suffer the unquantifiable costs and irreparable harms of justice involvement in their lives far beyond their criminal case.
In addition to seeing the ways in which criminal justice involvement leads to what is referred to as "collateral" civil consequences, every day public defenders also witness the impact of structural barriers and institutional forces. Poverty, racism and inequality are roadblocks to basic and critical civil necessities like stable jobs, affordable homes in safe environments, quality education, healthy food--the list goes on. These roadblocks, in turn, drive people into connected, oppressive legal systems that devastate and ruin their lives. This harsh and unjust reality means that a low-income Black person living in the Bronx is more likely than a middle-class white person on the Upper West Side to be arrested, prosecuted in criminal court, have contact with the child welfare system, face an eviction, be subject to deportation, or face the abuse of any number of other types of interrelated systems involvement--just because of what they look like, how much money they have, and where they live. (7) Our clients often become our clients due to the fact that they are poor, Black or Brown, and living in a particular neighborhood.
Based on the information, data, research, scholarship, advocacy, and powerful stories of those affected, there are efforts at every level--federal, state and local--to reform policies and practices, as well as to address and reverse the consequences of criminal injustice. (8) However, we cannot achieve true criminal justice reform without an accurate and full picture of how these consequences affect individuals and their family members. This honest understanding must include the civil problems that drive people into criminal justice involvement, as well as the civil punishments, sanctions, and consequences that are a direct result of it.
With every person I have the great honor and privilege of defending, I learn about a new or different way these systems undermine their rights, attack their humanity, and set them up to fail. Many of the people we serve at The Bronx Defenders are trapped in a vicious cycle of court involvement without meaningful access to solutions that might change their circumstances.
However, through my work as a civil public defender, I have had the opportunity to meet beautiful and resilient people, who persevere under the most crushing and unfair conditions. I have worked with some of the most dedicated, innovative, relentless advocates, in service of communities and in the pursuit of social justice. This gives me hope and has helped me see that despite these distressing times, together we have the opportunity to build power and to challenge and change the conditions that keep the communities we serve poor and oppressed.
This Essay details the critical, awakening lessons I learned during my journey as a civil public defender. (9)
Denny was born and raised in the Bronx. In his late twenties, with a wife of three years, Denny recently became a father to a baby boy. He works as a security guard for a retail store not too far from the one-bedroom apartment he rents. Denny's income supports his family and barely covers all his expenses.
One Saturday night, he goes out with a friend to a party at a local bar.
A fight breaks out between two men and the police are immediately called. Though he was not involved in the altercation, Denny and others intervene to break up the fight. When the police arrive, a number of people are arrested, including Denny. He is handcuffed, detained, fingerprinted, and processed through the system. Denny has never been arrested before. He is charged with misdemeanor assault in the third degree. Once fingerprinted, Denny's information is sent to the Division of Criminal Justice Services. The New York Department of State, the agency that licenses him to be a security guard, is also notified of his arrest. Based on the arrest charges, Denny also receives a notice from the licensing office that his security guard license may be suspended or revoked.
Despite his criminal attorney's best efforts, the District Attorney's office will not drop the charges. Instead, they offer him a non-criminal disposition. Denny rejects this offer. He does not want to plead to any charge, criminal or non-criminal, as he believes he was improperly arrested. Denny pleads not guilty; because he insists on having a trial, Denny must return to criminal court. His case is adjourned for months at a time. It will take between one and two years for Denny to finally ha ve a trial.
While Denny stands accused and awaits his trial in criminal court, his security guard license expires, and because his criminal case is open and pending, his license renewal is denied. Without his license, Denny loses his job at the retail store and cannot find another job as a security guard. He struggles to find alternative work. His wife, who is disabled and the primary child care provider to their baby, is also unable to work.
Without his work income and unable to access other income, Denny and his family fall behind on rent. Denny's landlord seeks to e vict him and his family.
In just one moment, Denny's life is turned upside down.
LESSON 1: MYTH VERSUS REALITY--CRIME IS NOT WHAT You THINK IT IS
We are only beginning to scratch the surface of understanding the magnitude of the harms that our ill-advised policies towards crime, policing, prosecution, and incarceration inflict upon poor communities of color. There are over 10 million arrests in the United States each year, (10) at least two million people in U.S. prisons and jails, and approximately nine million returning citizens released from jails or prisons every year. (11) An additional 4.7 million people are on parole or probation, (12) and more than 70 million Americans--at least one in three--have criminal records. (13) Hundreds of millions of people have had some kind of contact with criminal court, and the bias and racial disparities that exist at every level of the system is appalling, to say the least.
To this day, when I identify as a public defender, after assuming I am a criminal defense attorney, I get the following responses: "How could you represent those people?" "You are helping murderers and rapists stay on the streets?" "Criminals are such bad people, why not help victims?" These attitudes reflect common myths about crime in our country that tend be very disconnected from reality.
One of the most eye-opening lessons I have learned in public defense is the sheer subjectivity in how crime is defined, who is policed, prosecuted, and...