On a cold, wet Friday morning in February, Shelby County public defender Ben Rush was surprised to discover that there were only 22 names printed on his list of assigned clients. It was little more than half of what he's used to and only a third of what he might expect on a busy day. Not that the number mattered all that much. The day would be challenging enough even if the judge didn't assign more defendants.
There's no special area away from the courtroom where public defenders can talk with incarcerated clients. "You get shushed if you're too loud," Rush says with a bit of a chuckle, like a man who may have been shushed a time or two. "It's hard to whisper when clients are emotional," he says.
Rush is a big guy with a fighting spirit. He played tight end for Murray State and likes the "challenge of being an underdog." He doesn't want to become a stereotypical "meet and plead" public defender, but sometimes when you're working under conditions that look more like battlefield triage than litigation there's not much else you can do.
"Sometimes I want to fight. But folks who are too poor to bond out have usually been sitting in jail for a while, and they want to take a deal just to get out as soon as they can."
The clients don't always understand what public defenders do, he says. "Some of them think that we all work for the state, and so it's just one big conspiracy against them."
In July, a new law goes into effect allowing the state to revoke the driver's licenses of people with outstanding court-related debt. Rush worries that it's going to put even more names on his list and cause trouble for people already caught up in the system.
"People still have to go to work and take their kids to school," he says. Driving with a suspended license isn't a moving violation; it's a criminal charge that may also impact pending cases or violate the terms of parole or probation.
Across America, public defense systems are in a dire state. Study after study has documented how excessive caseloads have compromised the constitutional right to counsel. As former FBI director William Sessions writes in his foreword to Norman Lefstein's 2011 book, Securing Reasonable Caseloads, America's public defense systems "should be a source of great embarrassment for all of us."
None of this is new. Nearly 49 years ago, the Supreme Court's decision in Gideon v. Wainwright ensured poor people the right to counsel in state courts. For the next near half-century, indigent defense programs were consistently underfunded. According to Sessions, this is the "undisputed and sad state of affairs" that undermines respect for the rule of law and "makes a statement to the world about who we are as a people and a society."
So how did we get here?
Thirty years ago, fewer than 350,000 Americans were in prison. By the turn of the 21st century, that number had ballooned to more than 2.3 million.
In the 1980s and 1990s, as more and more money was allocated for prison expansion, the "war on drugs" budgets for rehabilitation programs were cut to the bone and so was federal funding for community-based mental-health programs. Meanwhile, "tough on crime" legislation and "zero tolerance" policies, identified as part of America's war on drugs, emphasized punishment over rehabilitation and mandated longer and harsher sentencing, even for people convicted of relatively minor crimes.
Eighty percent of the people accused of a crime qualify for court-appointed defense. As the system grew, funding for defender programs was increased but never kept meaningful pace with prosecution or enforcement.
"Punishment is a completely valid part of the system," says Josh Spickler, director of Memphis' Defender Resource Network. "But we've gone beyond that. People don't always understand the true cost of not just conviction but of contact with the criminal justice system."
Some of the costs Spickler alludes to are obvious, like the considerable sums paid to house prisoners. On January 12th, for example, the Tennessee Department of Corrections reported that the state housed 19,674 adult inmates. One day's inmate-housing cost for the state exceeds $1,275,000.
Approximately one in 100 Americans are in jail. If you extend that figure to include people on probation or parole, it becomes one in 31 Americans.
For some groups, incarceration rates are higher still. One in 15 adult black men is behind bars. That number drops to 1 in 9 for black men between the ages of 20 and 34.
None of this is lost on Michelle Alexander, author of The New Jim Crow: Mass Incarceration in the Age of Colorblindness. In a telephone interview, Alexander says these numbers aren't a direct reflection of poverty, bad schools, or ruined homes, as we are often led to believe. Our legal system, she says, plays a major role in ensuring "that people are shuttled from their broken, underfunded schools into brand-new high-tech prisons and then cycled in and out for the rest of their lives."
Alexander's data-rich book links "get tough" policies and America's war on drugs to the unsustainable rise in prison populations and the creation of a permanent American underclass — one that is overwhelmingly black and brown. She identifies failing public defender systems as a contributing factor to mass incarcerations and cites an NAACP-sponsored study documenting the collateral costs of Mississippi's inadequate system.
From a sample group of 30 women incarcerated for nonviolent offenses by the state of Mississippi, the study found that nearly half lost a home while they were in jail. Another dozen lost vehicles. Children and elderly parents also suffered as a result of the incarceration.
"We may think this is what is necessary to make communities safer. But nothing is more likely to destabilize a community and ensure relatively high levels of crime than creating an enormous group of people who are locked out of the legal economy," Alexander says.
Stephen Bush, Shelby County's chief public defender, describes his work as "the plumbing."
"You don't want the plumbing to get clogged," he says. "That's bad."
Of course, things are bad all over, and Bush says that Shelby County's public defender system, one of the nation's oldest, is experiencing the same challenges faced by systems across the country. In some ways, he thinks his office has shown a tradition of leadership and innovation. But that's not enough.
"In several key areas, I have concerns about our ability to meet minimum requirements," he says, describing the people he works with as talented, devoted. and skilled. "But there's a limit to how many cases even the best lawyer can handle without compromising."
Currently, the Shelby County public defender's office is composed of 74 lawyers, 10 investigators, and 15 administrative professionals who serve 18 divisions of court at 201 Poplar and eight outlying municipal courts and state appellate courts. In 2010, they argued 34,000 cases.
"Until a public defender system can do its work, people stay in jail," Bush explains. "Financially speaking, that's a very expensive place for people to stay, and people who aren't being well-represented tend to be oversentenced.
"We are cheap on the front end," Bush says. "It doesn't cost much per representation of a misdemeanor or a felony, but it's expensive on the back end, if the system isn't functioning at the right level."
Over the past decade, Bush has watched several capital case convictions return to the trial court because the system he's working to improve lacked the capacity to provide adequate representation. "And the costs of having to retry a case are staggering," he says.
"Capacity" is a word he repeats over and over again. And it's more than just a word. It's something he wants to expand across the criminal justice system and deep into the community. "I think we're the most underutilized resource in the criminal justice system," Bush says, flipping the narrative about unreasonable caseloads. "Our challenge right now is to educate and make a compelling case that we need to develop enough capacity to build systems that work."
Some systems do work.
In 2005, "tough on crime" Texas responded to exploding prison budgets and its own capacity issues by investing in treatment programs and creating alternatives to incarceration for nonviolent offenders. In 2009, Republican state senator Tommy Williams told The Austin American-Statesman that Texas was witnessing "a dramatic turnaround."
A 2011 report by the Texas Public Policy Foundation shows double-digit reductions in crime for the Lone Star State, and last year, for the first time in history, the Texas Department of Criminal Justice closed a prison without replacing it.
Spickler is a realist who accepts that crisis is the new normal for public defenders, just as it has been the old normal. But he's inspired by what happened in Texas and other places where "bleeding hearts and budget hawks" are finding common ground.
"Most people consider the criminal justice system to be broken, and we're one part of that," Spickler says, signing on to Bush's description of a public defenders office that is simultaneously overburdened and underutilized. "We are in a unique position to address the underlying causes of contact with the criminal justice system, but with one noteworthy exception, we have not fully taken advantage of that position."
Spickler's noteworthy exception is the Jericho Project, a nationally recognized intervention and re-entry program serving people with serious mental illness and co-occurring substance abuse issues. Bush, the principal architect of the Jericho Project, launched his experiment in the mid-1990s, when Memphis mayor A C Wharton was still Shelby County's chief public defender.
"This was Shelby County's response to the overcriminalization of people with mental illness," Bush says. It is also a perfect example of how public defenders can target special-needs populations and find alternatives to incarceration.
Jericho was launched in response to the increased number of people with mental illnesses coming into the Shelby County criminal justice system at a time when an overcrowded and dysfunctional jail had come under intense scrutiny by federal courts. People with severe mental illness were likely to be incarcerated two to five times longer than the average inmate. Public defenders needed to figure out better ways to represent such clients.
Jericho does for people with limited means what people with money have always been able to do: It pairs the accused with a good lawyer and links them to a system of high-quality treatment.
"It is a different way of thinking about the public defense systems," Bush says.
Jericho reaches into the community to tap resources such as Social Security, Medicaid, and other public health systems that are already in place for the non-incarcerated.
All plans for recovery are tailored to the specific needs of the individual. A supervision plan gives the courts confidence that people just aren't being released onto the street.
"If you link people to the right services, they have a good chance of being diverted," Bush says. "It's an example of targeted capacity building that can have an impact on the lives of the individuals involved and also promote public safety for the entire community."
The Jericho program even takes on clients with a history of violence. To date, not a single incidence of harm has resulted from one of Jericho's jail diversions. Nearly 57 percent of Jericho's clients have not been rearrested. Success stories abound.
Kim Dunlap is about to take a new job as a case manager for the Jericho program. The petite social worker is especially well-suited for the job, since she went through the program seven years ago.
"For a lot of people, it's either a person's guilty or they're not. It's black or it's white and that's all that matters," she says. "If they're guilty of something, lock them up. A lot of my relatives are that way. Or were, until I changed their perceptions."
Dunlap is a woman with a future, although she describes herself as "a woman with a past." She remembers sitting in a prison cell after her last arrest in 2005, wondering what she was going to do with a bipolar diagnosis, a criminal record, and a cocaine problem. Worst of all, her husband told her he'd been in touch with a public defender.
"I said: 'A public defender? Are you freaking kidding me? I don't want no public defender. Do you realize what kind of trouble I'm in? You need to call Leslie Ballin and get me out of here right now.'
"My husband said we couldn't do that because I'd used all the money. And I had. I went through everything. And so I sat on my butt in jail for a while."
"What we discover is that, while they're in jail, people with a serious or persistent mental illness can get relatively well relatively fast," Bush says. Dunlap never liked the idea of being "one of the crazies" and swore she'd never take medicine for her bipolar disorder. Before her drug habit spiraled out of control, she worked as a tax specialist for National Mortgage and raised her two small children.
"I stole from everybody. I lied to everybody. I was evicted from my house. My husband's truck was repossessed," she says. "After the first time I was arrested, I got probation. Then fines. The third time, I was sentenced to serve 30 days on weekends, but I couldn't finish that because I was on drugs and violated probation. There were six warrants out for my arrest."
Dunlap describes Bush as "the meanest man" she ever met. She also credits him and the Jericho program with saving her life.
"Jericho set up a plan for dual diagnosis to address my addiction and my illness," Dunlap explains. "And the morning after I got out of jail, they were there knocking on my door at 7 a.m. to get me started.
"I'm not going back to that life," Dunlap says. "It's not going to happen."
Dunlap currently works through Frayser Family Counseling as a peer counselor at North Tree Woods, an apartment community for the chronically homeless.
"When I first started working there, a friend asked me if I'd be afraid working with unstable people who might hurt me. I said, 'Why would I be afraid? Those people are just like me.'
"I could have served up to 10 years," Dunlap says, shuddering. "We have to break that stigma that just because a person has a long record they're hopeless. I know people said that about me."
Michelle Alexander talks about Mass Incarceration and the New Jim Crow.
Michelle Alexander is an associate professor of law at the Ohio State University. Her book, The New Jim Crow: Mass Incarceration in the Age of Colorblindness, describes how overcriminalization and "get tough" initiatives associated with America's war on drugs have combined with other government policies to create a racial caste system in America.Memphis Flyer: You say you don't want this conversation to end with nervous laughter. But it's a difficult conversation. There will probably be some nervous laughter. Michelle Alexander: The biggest challenge is moving people from denial or willful blindness and challenging the big myths: like mass incarceration is driven by rising crime rates or that the people most likely to sell drugs are black or brown and only the most violent or heinous offenders are swept into the system. These are all things that are reinforced by media and in our political discourse. They make it easy to turn a blind eye and say, sure, the system has problems, but at least it's functioning to keep bad guys off the streets. Right? You make the point that a lot of voices are never heard. Can you elaborate? The folks most harmed by this system never have a chance to speak. They are never heard. We need to hear stories of people trapped in the system. We hear from the police all the time. We hear from the prosecutors and sometimes we hear from the victims, but we never hear the stories from the people cycling in and out of the legal system. And people like me are partly to blame for that. Civil rights lawyers have targeted law-enforcement agencies for racial profiling or police misconduct. We look for defendants with clean criminal records who would be understood by juries and the media to be good people caught up in the system. The ones with charges were tarnished. The public could never empathize with them. Juries could never relate. People don't like having their myths challenged ... I'm pleasantly surprised, actually. This is a unique moment in time. Most people have a nagging sense that the current system is unsustainable. And they have a gut sense that the war on drugs hasn't worked. Crime rates are relatively low compared to a couple of decades ago. It's a moment in time when people are willing to have a conversation. Thirty years ago, there were 350,000 people in U.S. jails. Now, there are 2.3 million. Should I feel six times safer? It's a trickier question than you might imagine. Some will argue that since we're experiencing lower crime rates while so many people are incarcerated that means it's worked. It's an unfortunate necessity of our times. But that's another misconception, because crime rates have fallen more in some states that incarcerate less.
In some cases, they have fallen for reasons difficult to identify, that sociologists and criminologists are still figuring out.What can we realistically expect from convicts who are released from prison then pushed to the margins? In my state, Ohio, you can't get a barber's license if you've been convicted of a felony. People have to survive, and if you're locking them out of the legal economy — in some cases denying them shelter and even access to food — what realistically are their options? People will say, "They can get a job at McDonald's." But even getting a job at McDonald's is no easy feat if you have a criminal record.
They're saddled with fees and court costs. Wages can be garnished. It's a situation where people are set up to fail. Really, if you were going to intentionally build a system to create a permanent underclass of people, you couldn't do much better.Is there anything you've discovered while you've been out talking about your book? I touch on this in the book, but I'm not sure if I emphasize it enough:
If we were to end the system of mass incarceration as we know it and return to rates of incarceration like we had in the 1970s or early 1980s, before the war on drugs, we'd be releasing four out of five in prison. People employed by the system would lose their jobs. Private prisons listed on the New York Stock Exchange would watch profits vanish. This problem isn't going to fade away by just tinkering with the machine and enacting relatively minor policy reforms here and there. It's going to take a fairly radical shift in public consciousness.
It's not about fixing laws or reining in the most egregious police tactics. It's about changing how we think about criminal justice as a whole. Politicians are not yet prepared to do this, and they never will be prepared to unless we force this issue.