[music] I'm Alexander Heffner, your host on The Open Mind.

I'm delighted to welcome our guest today, Scott Hechinger.

He is a longtime public defender, civil rights attorney and executive director of Zealous, where he's fighting every day to share the truth about public health and safety.

Scott, a pleasure to meet you today.

You as well, good to be on.

Thanks for having me.

Scott, in 2025, what is the state of the American public defender, historically speaking, compared to when you started public defending?

But if you were just to do a snapshot assessment of the state of the public defender in America over the last quarter century, what would you say?

The state of public defense is abysmal.

And it does nothing to come close to what the Constitution requires, as interpreted by the Supreme Court.

The state of public defense, outside of small pockets like New York and some other places where there's decent funding, is that, public defense is mostly not full time public defenders.

In Mississippi there are 33 full time public defenders in the entire state.

What is it?

It's mostly private attorneys who are forced to take on poor people's cases for pennies.

What is it?

Its public defenders working without any kind of independence.

Under county commissions.

And it's sometimes employed by judges where if they try to challenge the system too much, they get fired or their funding is lost.

It's a system where public defenders, even in places like Brooklyn, where I practice for close to a decade and where we have the had the resources, we had social workers, and we had relatively low caseloads.

The intersection of laws and practices and policies and the sheer number of people coming through the system made it so that even, you know, well-funded offices were trying to do nothing more than just harm reduction.

And so the state of public defense is poor.

And what people need to understand is that investing in public defense, isn't inconsistent with trying to take, try to limit the footprint of the criminal legal system.

It actually, public defenders are the folks who are on the ground standing as a bulwark against the heavy hand of the state.

They're the folks that are actually raising up the truth about what's happening inside of court, both the judges in court and on appeal, and in the public, discourse.

So, public defense ultimately makes us healthier and safer.

It saves money in the end.

It makes, people freer.

And it breathes life into the Constitution.

And we're just not there yet.

Not even close.

As you said, it is sanctioned almost as much as the preamble to secure domestic and preserve domestic tranquility.

It is sanctioned in our founding creed.

Both in the essence of the declaration and explicitly in the Constitution.

You say the condition is abysmal.

But was it abysmal prior to the war on crime, which was really in many instances, a war on justice in the 90s and 2000s, and even you could dated back to the 70s and 80s with the emergence of tough on crime, sentencing and rhetoric.

And specifically, the most extreme punitive sentences for drug related, crimes, but at some earlier juncture that you could point to whether it was 1950 or 1970.

Would you say that the state of public defense was abysmal then, too?

So keep in mind, while you know, access to counsel is ostensibly inside of the Constitution, it's in the Sixth Amendment.

It wasnt til about 60 years ago that the Supreme Court of the United States in Gideon v Wainwright actually said that it doesn't just mean everyone is entitled to a lawyer.

If you can afford one, right?

And that the state couldn't stand in the way of that.

It actually required that the state provide a lawyer no matter what your means were.

So before the 60s, it was even worse.

But the promise of Gideon was that everyone wouldn't just have someone standing next to them.

It was that they would have someone who was able to actually provide a meaningful, robust defense.

And the funds that were needed, the independence that was needed was never there.

But here's the thing, as you suggested, in the... increasingly in the 70s, 80s and then really sped up in the 90s, kind of this, political, outcome, of being tough on crime, which is really actually goes against public health and safety.

But being tough on crime and being soft on crime is political suicide led to a range of laws that expanded the carceral state, that made basically everything illegal, that spiked the number of people incarcerated, that led to laws and practices that made the practice of law, nearly impossible, even again, in places where there was funding for public defense.

This expansion of the number of cases and the number of people coming through the system, paired with the limitations to abilities to actually do justice and seek truth, of course, made the job of a public defender that much harder.

And so, yes, the same systems that increase the number of people who are coming through the system, the number of people who are incarcerated, the length of sentences, the, amount of pretrial detention, the types of sentences being mandatory minimums created a lot of things.

It created certainly volume that no public defender office can can at today's, you know, in today's volume maintain.

But it also created laws that were designed to actually create an environment that was extremely coercive or that is extremely coercive for people.

That is why 95% of cases of convictions don't come post-trial.

They come pretrial through guilty pleas where people are pleading guilty not because they're guilty necessarily, not because, they were stopped and frisked, constitutionally, but because they're scared to go to trial, facing mandatory minimums.

They're in jail and just want to get home.

And they're offered an opportunity to do that.

So that's a long way of saying “yes.” I do want to ask you about those coercive tactics.

And how on the back end, they're being investigated and exposed to increase the condition of freedom and justice in our country.

But just to get the historical foundation accurate.

You're saying prior to that Supreme Court decision, there was not public defense available at scale, nationally or at all?

I mean, I think back to the founding period when, of course, John Adams, among others, defended, those accused of crimes, namely the British.

But are you saying prior to that Supreme Court decision there was a lack of availability of public defense totally?

Or it was just sporadic and where it was available?

It was sporadic where it was available and wasn't required.

pre-Civil War before the 14th, 15th.

13th, 14th, 15th amendments were passed.

It wasn't, required, by the United States Constitution.

And so it took until the 60s with Gideon v. Wainwright for the Supreme Court to say, yes, this is required.

I mean, Gideon, Clarence Gideon incredible story where this poor man, of meager means, was accused of burglarizing and stealing money from a pool hall.

And he was incarcerated, and he wrote and scrawled on a piece of paper, handwritten, a petition to the Supreme Court saying, look, like I didn't have the means to defend myself.

That's not right, essentially.

The Supreme Court took on the case, and the case was decided where 60 years later, the promise of Gideon is far, far from being achieved.

And are there attempts to roll it back or to reverse it altogether?

There aren't attempts to roll it back because it, frankly, is so far from being actually carried out.

What we see, you know, in states around the country and counties around the country is a continued refusal to fund public defense, and not just public defender salaries.

But I'm talking about, paralegals and social workers and investigators and funds for, drug labs and experts that prosecutors have, and even close to the amount the prosecutor's office has have.

I mean we, our system is sort of built on this myth, and there's a lot of myths about the system that we can talk about.

But one of the myths is that in an adversarial system, the truth ultimately will come out.

But how can you claim to, how can this claim to be an adversarial system when you know, public defender's offices either don't exist or where they do exist, are operating at just a small percentage of the amount, of funds that go to their adversaries for lack of a better word.

So now let let's talk about the examples of well-funded public defense offices.

If there are any models that you would cite that are getting the job done right.

In terms of public defender offices that are getting the job done right, you always have to still at this point, measure them within the context and the word “right” within the context of the vast number of cases coming through the system.

Things like mass pretrial detention and mandatory minimums and the sheer speed that judges try to move cases through the system.

Because again, at the end of the day, even the most well-funded and resourced and best model public defender offices are sort of no match for those forces that have been intentionally built up over time.

Right.

And I hear what you're saying, that you can't be assessing this on the basis of how that these offices are being a victim or exploited in the system.

You're not going to measure this by virtue of, you know, how many people are processed, and maybe you assess it on the basis of how many people get fair sentences or are exonerated.

But yeah, if you were to measure it in a way that emphasizes the criteria that youd identify as justice seeking.

Yes.

How would you assess that question?

So looking.

I look at the the offices.

I look at the office that I worked at Brooklyn Defender Services in Brooklyn, where we represented about half of every one arrested in Brooklyn every year.

And we had an exceptional number of attorneys that were paid not as well as we should be getting paid, but relatively well.

Again, with relatively low caseload overall.

Every case, every person who I met, I would be able, as the public defender, as their attorney, to decide, okay, is this a case that needed a, a immigration attorney to help advise about any immigration consequences?

Because we had an immigration practice, if family defense, if there's family defense, potential issues.

So the potential for removal or orders or protection having to do with family dynamics, I could know, I could call on my family defense practitioner expert to help me with that.

With every single case, if it moved beyond that first appearance, I'd have an investigator assigned to my case, a paralegal, to help with legal filings, and requests and subpoenas.

And I would have an office of other public defenders to go to for advice, for, ideas for strategies, and for the added additional sort of institutional support that allowed us to stand sort of toe to toe with a very powerful district attorney's office.

So what we saw was a practice that and I forgot to mention social workers, key among them, because what I saw was a practice that focused on the full person recognizing that a, an arrest and a prosecution was far more often than not a reflection of underlying circumstances, lack of investment in communities, sometimes mental health issues, immigration issues, substance use issues, poverty.

And so the focus was I was able to focus, yes, on the individual criminal court case, but we as a collective office were able to focus on the things that sort of got them targeted in the first place and tried to prevent them from getting kind of further sucked into the system.

And best case, actually, supported, on the way out.

So some people call that holistic representation.

That was a term that was coined by Bronx Defenders.

I call it just basic sort of complete collaborative defense, which is a term that was coined by one of my colleagues, Emily Galvin Almanza at Partners for Justice.

And what they do just really briefly, is they actually in the places that don't have funds for for social workers and as many offices as possible, actually help recent college graduates get embedded into the office for a year or two years as client advocates, not just to meet an immediate need for all of the stuff that happens outside of criminal court case.

But to make the point, to improve the point to lawmakers who hold the purse strings, that investing in this kind of robust defense is absolutely critical not just for justice, but also for health and safety, economic cost savings, etc..

Given what you describe as the abysmal state of funding the operation that you described, that can work and be functional.

How involved is the system now?

Or people like yourself wanting to hold the system to account?

How involved are you in understanding what went wrong when it comes to coercion, coercive plea deals, innocent people, being, persuaded to take a deal even though they may not have committed the crime.

Or maybe they were.

They were actually, they actually committed a lesser crime.

But the rediscovery process of understanding what went wrong when defendants did not have adequate resources.

Where can people watching this now kind of understand how that process is playing out?

Yeah.

I think we're at an interesting point in, you know, in the nation's history and our history around the topics of public health and safety.

And we, and Ill include myself in this.

Until I became a public defender, I didn't know any better.

I grew up, you know, watching the same and seeing the same popular culture that painted, you know, people as good and evil and the solutions to crime and health and safety and violence and all kinds of societal issues as police, prosecution, prison.

And then as I grew up even more and started reading the news and receiving the news, especially with the advent of social media, I saw that same kind of intuition just reinforced that there is one there, one size fits all solution, and that's where our money and investments should go into.

We're at a moment where in our nation's history, we are the we spend the most on policing prosecution in prisons than any other society in the history of the world.

And so you'd expect, if that's the case.

And if that actually those “solutions,” we need to use heavy air quotes here, where they actual, where the solutions actually helped public health and safety.

That wed be the healthiest and safest society in the world.

But by police own admission, by prosecutors, own admission, by prison interest, own admission, we're far from it.

But we continue to invest more in something that has failed over and over again.

And why is that?

Because of the fact that we as a general public, we sort of lack the imagination for different.

We think and we assume that, first of all, we're less safe than we've ever been, that violence is worse when it's not.

But we also don't know what different looks like.

And so what I and what other people who are not only seeing what's wrong about the system, but seeing in small pockets around the country where things are going well, not just with public defense, like in Brooklyn, but in violence prevention in Chicago, where community violence interrupters, folks who were actually have been harmed or have harmed others but are trusted in the community, are preventing violence before it happens or alternative first responders who are responding without guns and who are actually trained in social work, responding to issues instead of the police or restorative justice, which actually heals trauma.

We're trying to tell these stories of what different looks like, so that these new innovations in public health and safety that are tried and true, that are tested, that have data behind them, start breaking through to that lock of imagination.

That's what we're trying to do.

It's less.

It's I think it's [sigh] I want to say too hard sort of to go back and, kind of assess how we got to this point.

Because when I say it's too hard, it's in some ways it's very simple.

It was politics, and with politics it was just an assortment and a tapestry of really harsh, not well thought through laws that were intended to get people elected but weren't intended to actually use our money well to solve actual problems.

And we're seeing the result of that today.

And so, you know, for your viewers, it's a... its a, an ask for patience.

Patience for change and for different approaches.

If your goal is cost savings, if your goal is as a libertarian, maybe hands off government and civil liberties if your goal is racial and social justice, if your goal is at the end of the day, like anti-violence and health and safety, our current system is hurting more than helping.

When it comes to the coercive tactics, that specific piece of it, though.

You would hope that in the wake of some of the discourse that you identify that those coercive tactics are not being deployed with the same frequency.

Or at least there's more honesty in the process of plea bargaining.

Can you just reflect on that?

And, and also with respect to the cases that were plea bargained unfairly, unjustly.

In a sense, extra judicially.

What are the avenues, that exists now that might not have existed in the past when appeals seemed like a foregone conclusion, you were going to fail.

And is that a significant part of shrinking the system?

Actually, going back to all these cases, like you said, that were quickly disposed of and making, a more equitable outcome in those cases on the back end.

Yeah, I mean, look, it would be a wonderful thing for us to be able to revisit, you know, all plea deals.

Because at the end of the day, there's a coercion to all of them.

And, you know, I want folks to really try to understand, like, because I think it's hard for people to understand, why would I, I would never plead guilty to something I didn't do.

Right?

Like, it doesn't make any sense.

But then I try to encourage folks to imagine being arrested and, being held for two days.

You're starving.

You're terrified.

You're at danger of losing your job, and you meet a public defender, and and you want to fight your case, either because you're innocent or because the police completely abused your rights.

But the public defender, I, tell you, I want to support you.

I want to fight your case.

But here's the deal.

The prosecution right now is offering a plea slightly down from the charge.

So it wouldn't be a crime.

It'd be a violation.

And you'd be able to get home today.

But it would close up the case.

And, you know, we just come with $120 surcharge.

It's a no brainer for most folks.

They need to get home.

It's the difference between eating and not, the difference between going, you know, having your job or not.

At a higher level of scale.

Imagine that you're a young 17 year old who was arrested for carrying a gun.

And why are you carrying a gun?

Not because you're trying to hurt anyone.

The people who I represent, who carry guns because they saw their friends and their family get shot.

They were victims of violence themselves, and they're charged with a violent felony simply for carrying with a mandatory minimum of three and a half years.

If they go to trial and they are found guilty and frankly, they had a gun, the judge could be their mom and the judge would have no discretion but to go below three and a half years and you're offered probation and, yes, a misdemeanor charge or maybe even a felony charge.

You're going to take that deal both because you're probably incarcerated, pretrial, but also because you don't want to go to jail or prison.

What happens then is you have that record and then you can't get a job, and the cycle continues and you're stuck in this cycle of poverty and violence where you feel like you need to carry again or you're caught in the wrong place at the wrong time.

I wanted to to to put that all out there just to frame out for folks, you know, just kind of, first of all, shades of gray in terms of guilt or innocence, people who might be “guilty” in the sense that they did the thing might be actually legally innocent, because the police overstepped their bounds or there's so many mitigating circumstances.

But the things like the threat of pretrial detention or the threat of having to come back to court, the process itself, or mandatory minimums become just too much and wind up leading to decisions that actually, that wind up hurting people.

I think that the that really one of the tools that's at our disposal, that's at legislators disposal, that would be the most effective is focusing on decriminalizing as many things as possible.

We criminalize everything.

So thinking more and more critically about saving money, that would go to arresting people for jumping the turnstile or for possessing drugs or for, or sleeping where you arent supposed to be sleeping, just kind of chill the number of cases that are coming through the system to give the system more space to breathe is one thing that could really help.

Unfortunately, right now the appellate process is is not what one would hope it would be.

So there's a new administration and a new congress.

What would be the most realistic type of reform that you would like to see achieved, if that might be on the national level?

Share it.

If it is in the native state in which you practice New York or elsewhere.

Also please share.

What would be, again, the most important reform you would like to see this year?

Oh, boy.

I got to pick one?

Okay, so a... A couple of thoughts.

And this is also with the mindset that what is politically possible?

One thing that, folks, I think take for granted is that Democrats, more, you know, progressive folks are so much better on crime, justice, public health and safety than their Republican counterparts.

But we've seen, kind of historically is that's not the case.

Maybe there's some difference with some politicians, but at scale, the politics of crime and punishment drive sort of a one way ratchet only in one direction toward greater harshness.

And so, I mean, we're looking at, Michigan, for example, control all three branches of government, and there's more people sentenced to longer time than in any other state in the entire country.

It's the only state where people who are imprisoned do not have the ability to earn time off their sentence.

There's actually.

Sorry, I take that back.

Theres only one other state that has that, but it's the only state that doesn't have that ability.

Plus, truth in sentencing, which requires you to spend all your time, 100% of the time in.

And there are advocates on the ground that are pushing for a second look policies.

So the idea of allowing folks to get out earlier and there hasn't been movement.

So look, it's not a place where I practice.

But since I brought up Michigan, it would be wonderful if Michigan were to pass a law that brought this, this blue state in line with the rest of the country when it came to, looking at the length of their sentences and letting people out, as soon as possible, I think on a national scale.

And this is something that I truly believe.

I don't want to say it's the most important because so many things are important, and I think they're all important.

But one of the things that I'm kind of hopeful about, because of what we're seeing sort of in Mississippi right now, a very red state is public defense, is public defense funding is work supporting, the ability for public defenders to operate independently because public defense and access to counsel is one of these issues that we've seen when we talk to people on the ground, appeals to a wide variety of interests and if your cause of social and racial justice, this is this, you know, public defense is an issue for you.

It's the ability to challenge bad police misconduct.

It's the ability to actually be represented when you're locked up pretrial, presumed innocent.

It's a method, toward decarceration of freedom.

If your issue is civil liberties, there is nothing more, related to civil liberty than public defense and access to count...

In the 30 seconds we have left now.

-Sorry!

-The most.

The most compelling appeal to that bipartisan message would be the stories of those wrongfully sentenced or convicted?

In your mind?

My estimation is it's two things.

Yes.

There are stories of people who are wrongfully incarcerated and wrongfully convicted.

But I think more than ever, when people are looking for is to understand what the future actually looks like.

And the future is now.

So actually telling more stories.

And this is something that my organization is focused on about what freedom looks like, that it's not something to be scared of, that it's something that saves money, that it's something that doesn't make us less safe.

It actually makes us safer and healthier and keeps families together.

Is the strongest message right now.

We need to show people, and people need to see and understand that freedom and justice is not something to be scared about.

It's something that's good for all of us.

Scott Hechinger, thank you so much for your insight and perspective today.

Thanks for having me on.

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