What It Takes To Become a Prison Reform Advocate

Conrad Black and Randall "Duke" Cunningham went to prison and, surprisingly, didn't like it very much. Cunningham:

“The USA has more prisoners than any other nation, including Russian & China,” he writes. “The US Attorneys win 98% of their cases and if you do not plead in which 80-90% is not true they threaten your wife children etc with prison time.”

Cunningham’s numbers are slightly off. The U.S. Department of Justice’s 2009 statistics show that federal prosecutors won 94.1 percent of cases. In 96 percent of those convictions, the defendant pleaded guilty before trial. The difference doesn’t affect Cunningham’s point.

Black:

Before I got into the maw of the U.S. legal system, I did not realize the country has 47 million people with a criminal record, (most for relatively trivial offenses,) or that prosecutors won more than 90% of their cases. There, at Coleman, I had seen the courage of self-help, the pathos of broken men, the drawn faces of the hopeless, the glazed expression of the heavily medicated, (90% of Americans judged to require confinement for psychiatric reasons are in the prison system), and the nonchalance of those who find prison a comfortable welfare system compared to the skid row that was their former milieu.

I can cut Black some slack, given that he's not from this country, although surely there was some coverage of the issues in some of the papers he controlled - and I venture that his editorial boards would have been pretty unanimous in opposing the reforms he now supports, if for no other reason than because it would require a tax increase.

On the other hand, Duke was surprised by the number of prisoners in this country, the high conviction rates achieved by U.S. Attorneys Offices, or the strong-arm tactics used by some of those offices to convince defendants to plead guilty? This is a guy who represents California, a state that's bankrupting itself in no small part through the cost of its prison system, infamous for its "three strikes" laws? While granting that it appears he's no rocket scientist, I suspect he had a pretty good idea what was up, but doesn't want to admit that he used to support the "tough on crime" rhetoric, legislation and policies that led to the outcome he describes.

Black also writes,

And I had heard the vehement allegations of many fellow residents of the fraudulence of the public defender system, where court-appointed lawyers, it is universally and plausibly alleged, are more often than not stooges of the prosecutors. They are paid for the number of clients they represent rather than for their level of success, and they do usually plead their clients to prison. They provide a thin veneer for the fable of the poor citizen’s day in court to receive impartial justice through due process.

It's recognized among defense lawyers that, when a client goes to prison, the defense lawyer gets the blame - the other people involved were just "doing their jobs". That said, compared to typical state systems, federal defender's offices are well-funded and court-appointed lawyers who accept federal cases are reasonably compensated. If by being "paid for the number of clients they represent", the issue is that court-appointed lawyers are paid by the hour, yes, that means the more you work the more you earn. But that doesn't mean you're underserving any given client. A flat fee system, in my experience, is worse for the client, and perhaps Black was hearing horror stories from those previously convicted in states such as Mississippi where court-appointed lawyers are paid a pittance of a fixed fee for any case they take, creating a strong financial incentive to take a lot of appointments and bargain the defendants out as quickly as possible. A horror story from Washington State:

On May 14, 2010, the Wenatchee World reported that a Chelan County public defender has agreed to pay a $2.9 million dollar settlement to a former client for admittedly providing ineffective assistance of counsel that led to the client’s wrongful imprisonment in a sex abuse scandal. The state of Washington requires its counties to shoulder the vast majority of funding and administration of the right to counsel. Chelan County (population 72,372) does not have access to significant resources and chose to employ flat-fee contracting in which a law firm was expected to provide representation in an unlimited number of cases for a single lump sum. Over two-thirds of Washington counties employ a similar model. Experts retained by the former client in the civil lawsuit noted that the public defender attorney was just out of law school, unqualified, carried too many cases, had no training, and was left unsupervised to learn as he goes.

Seventeen of the 27 people convicted in the sex-abuse investigation were represented by private attorneys and in every one of those cases the charges were thrown out or overturned on appeal -- only defendants represented by the flat-fee contract defenders were convicted.

If you pay lawyers only when a criminal defendant is acquitted, nobody is going to sign up. Let's be honest here: most criminal defendants are guilty of something, even if not the exact crime charged, and most are very interested in working out a plea bargain. There are innocent people in prison, and people who are convicted of crimes carrying sentences that are grossly disproportionate to their offenses (Black identifies the now partially corrected sentencing disparity for crack vs. powder cocaine) or to their role in an offense, but if you look past the sad tales told to credulous men who are used to extraordinary wealth and privilege, you'll find that they're a distinct minority.

That is not intended as a defense of the funding of indigent defense which, on the whole, is inadequate - and gets worse in complex cases in which a defendant must beg a court to provide money for expert witnesses or investigators, requests in state courts typically being denied or resulting in woefully insufficient allotments of money.

If Duke wants to admit that the criminal justice system he helped create as a Member of Congress is unduly harsh and unfair to innocent defendants, and to advocate for reform of the system, all the more power to him. Similarly, I'm all for Black calling for reforms, adequate funding of public defenders and court-appointed lawyers, and for supporting the mentally ill so that they don't end up in prison in lieu of getting treatment or because they find it preferable to life on the streets.