Time to Try 'Smart on Crime'

Public defender reform could improve public safety and state/local budgets

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“Three strikes and your out," life sentences with parole and other "tough on crime” policies have led to the United States having the largest prison population in the world. More than one of every 100 American adults was in prison at the start of 2008, according to the World Prison Brief published by Kings College London, using data provided by the U.S. Bureau of Justice Statistics.

A record 7.2 million Americans were in jail, on probation or on parole at the end of 2007, at an annual total price tag of approximately $60 billion.

As state and local economies try to deal with the most significant economic crisis in decades, many are starting to consider a “smart on crime” approach to positively impact public safety and save money. The best place to begin looking to implement change, according to Ohio Justice and Policy Center (OJPC) attorney Janet Moore, is at the bottom rung of the criminal justice system: public defenders representing indigent clients.

“I received a fellowship to focus on helping the public defense system in Ohio move quickly toward national standards — attorney qualifications, evaluation and training to improve the quality of client service — (in order) to move toward a community defense system,” Moore says. “The community defense model is one way to do something different by investing pennies in the front end, which is going to pay off hugely at the back end.”

Community defense is often referred to as “smart on crime” because it’s a systemwide effort to address issues that cause crime. All branches of the criminal justice system collaborate to divert people who commit minor offenses to rehab, mental health, job training or other programs — less expensive alternatives that save prison for violent offenders and help break the pattern of repeat offenses.

Qualifications, evaluation, training

Poor people usually get a public defender assigned by the court after they’ve been arrested, but these lawyers are underpaid, inadequately trained and carry a heavy caseload. As a result, many people end up in jail when they really don’t need to be there.

For decades, various groups throughout Ohio have made recommendations for improving the public defender system, but those reports have been shelved — until now.

After the National Legal Aid and Defender Association (NLADA) issued its review of the Hamilton County Public Defender’s Office last year (see “Poor Judgment,” issue of July 23, 2008), Moore says it sparked statewide interest.

“The NLADA report … says, ‘The system is broken,’ ” she says. “The economic crisis says, ‘We can’t keep throwing money at a system that’s putting people into boxes. We’ve got to do something different.’ ”

Moore is also pleased with the appointment of Tim Young as the Ohio Public Defender.

“Tim is all about standard-based reform, accountability, transparency,” she says. “He’s all about empowering the attorneys to provide top-quality representation.”

Moore says key players are collaborating across political and ideological boundaries to bring about meaningful reform: the state bar, the Ohio Public Defender Commission and, most importantly, the County Commissioners Association of Ohio.

“Political power very much rests locally, and it is the county commissioners who have born the brunt of the burden of indigent defense in Ohio as the state has increasingly shunted that burden off to the counties,” she says.

Now all of the expertise buried in those dust-covered reports is finally getting some action, says Bob Newman, a Cincinnati attorney who sits on the Ohio Public Defender Commission.

“The Ohio Public Defender office (has) adopted standards of performance that are now required of all the county defender offices,” he says. “We are now also working on caseload limitations to limit the number of cases public defenders can take to make sure that they can comply with the standards of performance. The caseloads have not yet been adopted, but that’s going to be very soon.”

Attorneys who handle indigent defense now must meet criteria that are nationally recognized as best practices and will be evaluated according to a set of performance measurements. Curricula for training programs for all areas of public defense — juvenile, felony, death penalty and others — are being developed.

The standards require lawyers to talk to their clients, investigate the details of cases and take the time necessary to prepare an adequate defense. That hasn’t been the case in Hamilton County, where some clients first meet their attorneys just moments before heading into court.

“We’re not talking O.J. dream team,” Moore says. “What we’re talking is, if you went into the doctor’s office and they didn’t check your blood pressure, check your heart rate, you’d think, ‘Hmmm, something’s wrong here.’ If a defense lawyer doesn’t have the time to communicate with their client, investigate the facts … it’s the same situation as walking into that doctor’s office and not getting those basic things done.”

‘Tiny up-front investment’

Political independence is essential for real change to occur.

“A judge should not have the ability to appoint a soft, compliant prosecutor or a soft, compliant defense attorney,” Newman says. “That’s a very important issue. It’s very troublesome in some other counties, especially in Cuyahoga County, where judges explicitly hire their friends and their political supporters and it’s an outright patronage system.”

Similarly, reform of the whole system will require independence, Moore says.

“You don’t want those decisions to be made with somebody saying, ‘I’ve got to please the judges. I’ve got to please the county commissioners,’ ” she says. “At that level, it has to be as independent as possible.”

The community defense model calls for limiting use of the criminal justice system to the worst offenders and creating alternative options for disputes between neighbors or domestic conflicts. The model can also lead to a review and change in police practices, how people are charged with crimes and other ways a community decides it wants to handle public safety issues.

Funding this new system is still being studied. No matter how that conversation progresses, the financial reality of having an ineffective public defender system looms large.

“We are now at a point in the pendulum swing between ‘tough on crime’ and ‘smart on crime’ extremes,” Moore says. “Having gone through the ’80s and ’90s ‘lock ’em up’ mentality, a bill for that is coming due at a point when we are in an economic crisis. So the system and the key players are being forced to say, ‘Now we don’t have a choice. We’ve got to change what we’re doing because we literally cannot afford to keep putting people in boxes.’

“A very tiny up-front investment can save hundreds of thousands of dollars at the back end and improve outcomes — not just for the client but for the whole community.”

Newman is optimistic.

“We’re going to start over with a lot of structure,” he says. “The whole Public Defender Commission is behind this effort and getting a lot of support from the state bar and from the judges association. I have hope. If I didn’t have hope, I wouldn’t stay on the Public Defender Commission. I’d sue somebody.”

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