This website is no longer actively maintained
Some material and features may be unavailable

Thomas Giovanni on better legal representation for the poor

Supreme Court Justice Anthony Kennedy wrote recently, “Criminal justice in America today is mostly a system of pleas, not a system of trials.” But how well does plea-bargaining work? Is justice being done? Our guest this week in our American Voices segment is Thomas Giovanni of the Brennan Center for Justice. He spent nearly a decade as a public defender and examines the difficult choices poor defendants often have to make.

One of the main problems with our criminal justice system is how willfully underfunded the entire system is. We don’t give enough resources to defenders, prosecutors or judges to ensure that we have a criminal justice system that’s worthy of being a professional system. The average caseload for a public defender in this city is between about 85 and 120,130. That volume means that we can’t be accurate. We can’t actually take care of the clients that come through the system appropriately.

The average arraignment lasts three minutes. So that’s to say you bring a person up in front of the judge, the prosecutor says what they’re accused of doing, the judge hears that, a defense attorney then gets a chance to make an argument against whatever the prosecutor’s saying. And then the judge is going to decide whether or not to set bail, which is to say whether or not to keep a man in a cage during the course of a case for three or four months at a time. That’s all done in three minutes. And the judge is supposed to make an informed decision about this. There’s no such thing as an informed decision in three minutes.

I take people on these court tours where we sit in arraignments and we watch, and one of the things that we see is these overburdened defenders forget people’s names. And we routinely see people taking pleas that it’s clear that the person doesn’t understand what’s going on. You see defenders taking pleas for people which in New York have permanent consequences. If you take a criminal plea of any sort, you will die with that plea. Why do people take pleas when they didn’t commit the crime, when they know that they’re innocent? The fundamental answer to that is what would you say to get out of a cage, or go see your kid, or go back to work. I’ve had a few cases where I know for a fact in my heart that they’re innocent, and they’ve had to tell me that I have to go to work. I have to go deal with my housing situation. I have to do whatever.

One of the most difficult examples are people who are navigating the shelter system. If you miss two or three days out of your shelter sign ins, a lot of places will kick you out, and so what happens is if I want to fight for my innocence but I know that I’m going to be held in, I’ve already been in a day and a half or two days, if I’m going to stay in here and fight this, I’m going to lose my housing. The system because of the volume forces people to make choices based not upon accuracy but upon their situation and their circumstances.

People who know that they’re going to get out because they have a strong argument, because they have money for bail, they can fight the system. People who don’t have money can’t fight the system and the system wants a plea. We have to care about the people that were giving these criminal records to. We have to care about creating a system that is resourced adequately.



  • Sonora Hartley

    You know, I want everyone to be treated fairly but honestly, I’m running out of money to take of myself, not to mention everyone else. I’m sure the public defender system needs more money to hire more experienced lawyers and to lessen their caseload. Just like I’m sure our public schools, child welfare agencies, mental health systems, county hospitals, adult protective services, food banks, animal welfare agencies, etc., also need more money. It’s all gotten to be just too much. Something has to go wanting – who makes that choice?

  • Marilyn

    Thank you so much for bringing attention to the injustice of the plea bargaining policies. A prison activist suggested that if all defendants refused to plea bargain the justice system would crumble.  It seems to have already fallen apart.  
    Not only are plea bargaining policies creating “records” for innocent poor people, unnecessary criminal justice practices are benefiting the bail bond industry while increasing incarceration for poor people and wasting our tax dollars.  Those who can “make bail” are sentenced to less time because they can show  they did not commit new crime while waiting for their trials.  Those who cannot afford bail, receive harsher sentences because they cannot use that argument.   

  • Marilyn

    FOLLOW THE MONEY. Who are the prison profiteers that are bankrupting us and wasting salvageable lives?

    District attorneys and prosecutors who are promoted for winning cases and harsh sentences at any cost (some areas do not have “open policy” and prosecutors can legally withhold evidence that shows the accused is not guilty);

    Fear-mongering politicians hocking tough on crime in hopes of votes;

    Prison employee unions;

    Parole department in California where everyone released is on parole;

    Three strikes law that sends people to prison for 25+ years over petty crimes such as stealing a pizza;

    The bail bond industry that benefits from unnecessary criminal justice practices that increase incarceration;

    Rigged line-ups that get faulty convictions and promotions;

    Increased incarceration due to requirement of checking prior-arrest/conviction boxes on employment, government, and rental applications for those who have been crime-free for years. It makes it harder to stay out of prison (BAN THE BOX);

    Serving high calorie, high carb meals that increase health problems and pay to medical institutions;

    Private companies that raise heck when prisons contract to do labor that increases prisoner self esteem and provides skills training;

    The list goes on…..

  • Gladys Young

    Please help a young black man who is in jail and has been for years in Greene County Springfield MO.  If you would PLEASE get on your computer and type in Greene County MO Circuil Clerk and then click on, click on litigants name and type in Anthony Rico Neal, case number 0931-CR04-104-01, then click docket sheet, you will be amazed.  The court just keeps moving his court date.  In this county is has been a pattern to give all black offenders to the same judge, Judge Mountjoy.  He recently gave a black man six life sentences for rape although the accusser knew his victims who were white.  The alledged rape occurred while the two sisters and their brother were all in the same apparent.  It is very bad here.  Neal’s docket sheet speaks for itself.  He supposely has an attorney but like other cases in this county, the attorneys work against blacks with the judge and prosecutors.  Neal’s mother is disabled and I don’t know if there is anyone looking out for his well being.  He has another court date set for July 11, 2012 but the pattern has been to just keep rescheduling.  Murder cases involving white offenders don’t take the time that his case has taken.  I saw you on MSNBC.  I know this young man is not perfect but he needs some help.  He does not know me but my grandchildren are aquainted with him.  If you cannot help him, maybe you know someone who can.  His case numbers are being manipulated also.  It’s my understanding that he has been in jail for five years on first degree assault charge but he has never been sent to prison.  I was told his mind is showing the effects of being in Greene County.  A county official told me that if “you people could just get someone in here to look at what they are doing to these young black men, it would be so helpful.  I am not trying to uphold wrongdoing, but aren’t they entitled to due process?