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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.