Broken Justice

Another attorney recommended the Broken Justice podcast to me. Back in my younger days, I did a short stint with the public defender's office in another state and one here in Missouri, and even then the problems discussed in this podcast were evident.  Staff was overworked, cases fell through the cracks, deadlines passed by left and right, and the state hiring freezes meant that no relief was coming.  So I was pretty open to this subject even before I started the show.

Before I get to my criticisms, let me take a minute to say that the problem addressed here is so much bigger than just the public defender system.  This aspect of the issue is touched on briefly in the last two episodes, with the discussion of "supply side" and "demand side" solutions.  One of the "demand side" solutions is to decrease the need for PDs by changing the way charging decisions are made by prosecutors.

Episode 5 profiles Wesley Bell, the now-not-so-new St. Louis County Prosecuting Attorney, who made some structural changes to the way the prosecutor's office works which helped to alleviate some of the burdens on the PDs.  One of the best and most meaningful changes Mr. Bell made, in my opinion, was to increase support in his office for referrals to alternative treatment courts.  There is a comment in the podcast that out-of-control incarceration rates are due in large part to addiction and mental illness.  That is a bit of a simplification, but there is a kernel of truth there.  Mr. Bell has shown support for alternative treatment courts which is unprecedented from that office.  That support has gotten a lot of habitual drug users out of the cycle and has opened up mental health services to loads of folks who didn't have (or didn't know how to access) that care previously.

But his and other policy changes are not without problems.

First, since this podcast is all about criminal defense, let's talk about the St. Louis County judges' administrative order allowing the PD's office to appoint any licensed attorney practicing in the county to represent a criminal defendant if the PDs are overworked.  What?!?  Is anyone else as appalled by the absurdity of this rule as I am?  Two huge problems:

1. It does not solve the problem of client neglect.  Private attorneys, too, are often overworked, overtaxed, and of necessity let things fall through the cracks.  (Sure, they might be paid more, but that doesn't mean they aren't worked just as hard.)  So to expect them -- when they have staff and bills to pay -- to drop everything and focus on a forced pro bono case is idealistic at best.

2. Not everyone practices criminal defense.  Would you want an allergist to perform your neurosurgery?  Certainly not.  So why would you want a bankruptcy attorney as your criminal defense attorney?  I assure you, you don't.  This situation creates problems for both the client and the attorney:
     a. The client is going to get a terrible defense.  The attorney doesn't know what they're doing, they don't know the rules of criminal procedure, they don't know the players.  This is not what you want when, as a defendant, your liberty (or even life) is on the line.
     b. The attorney stands to be sanctioned, including losing his or her license to practice law, for poor representation in a case they shouldn't have had (and didn't choose to have) (and had no business having) in the first place.  That license is his or her livelihood and it could go right out the window!  Jefferson County, which shares a boundary with St. Louis, used to employ this practice.  However, so many attorneys just quit practicing there as a consequence, they all but stopped the appointments.  Unfortunately, since St. Louis County is the biggest court system on the east side of the state, the "I just won't practice there" solution isn't really a viable one for attorneys.

Second, back to Wesley Bell.  As I acknowledged, some of his ideas are productive and helpful.  Others just push the problem down the road.  One of his big ideas (and in principle not necessarily a bad one in some circumstances) is to stop seeking prison time for non-violent offenses.  This includes non-payment of child support.

Here's the problem: pushing all the child support collection issues off of the criminal contempt docket and onto the civil contempt docket puts even more of the burden, which is already huge, on the person who is owed child support.  They are not the person who is doing wrong!  Why are we making them work extra hard to collect what is due?  One argument made in support of Mr. Bell's policy goes like this: "These defendants are reliant on the PD's office.  Obviously they have no money."  But if you follow that through to the next step, it sounds like this: "So instead, we will make their exes, who also are strapped because they're caring for the child(ren) but not getting support, beg/borrow/steal money to hire a private attorney in order to collect the child support."

That is totally illogical and shifts the burden in a way that I find to be completely inappropriate.  I have spent several years working in the area of child support collections.  In some cases, there is truly nothing to get -- and in those cases, prison is bound to be ineffective.  But in many cases, there is money to get; often it's cash or money from a family member, but it's there.  When someone is facing jail or prison time -- miraculously! -- the money often appears.

[Aside: I have been biting my tongue the whole way through here every time I wrote "Mr." Bell.  I have a hard time giving him that level of respect in light of his behavior -- at least since he has taken office, and possibly before.  See here and here for examples.]

On the whole, Broken Justice is a much-needed investigation into a a grossly underfunded system with huge responsibilities in the community.  But there was so much wrong with how it was presented (especially the last couple of episodes), and it left a bad taste in my mouth by the end.