The best offense is a good defense. The best person to check prosecutorial power is a defense attorney. We already have a system in place to reduce mass incarceration, and it doesn’t require restricting prosecutorial tools. It’s the public defender’s office.
The nation’s first public defender’s agency was created in Los Angeles County in 1913, started by California’s first female attorney, Clara Shortridge Foltz. Ironically, it is also in Los Angeles County that the push for criminal justice reform elected George Gascon as district attorney in 2020. He immediately implemented new, controversial policies such as not sending prosecutors to parole hearings, and eliminating the use of sentencing enhancements. The changes were opposed by victim groups, police officers, and many of his own prosecutors, who went to court to block his policies.
His goal is worthy, but are his methods the best? His policies take away discretion from the prosecutor, which could lead to unjust outcomes. For example, as seen in the recent release of Sirhan Sirhan, the family of Bobby Kennedy did not have a prosecutor at his parole hearing arguing on their behalf against his release.
Also, prosecutors used sentencing enhancements to lengthen Derek Chauvin’s sentence, which more accurately reflected the circumstances of George Floyd’s murder. Criminal justice reform that makes the prosecutor more like a defense attorney, or more like the judge or jury, disrupts the system.
People want to be protected from racial biases in our criminal justice system, but they also want to be protected by our criminal justice system. People of color are more likely to be incarcerated but are also more likely to be victims of crime. Black men are more likely to be murdered than any other group and Black women are three times more likely to be murdered than White women.
Ensuring that properly trained prosecutors can use discretion in criminal cases is important and can result in a more fair and just system if we as a society provide for an enhanced public defender to represent indigent defendants.
Not having adequate counsel exacerbates implicit biases in the system because the racial disparity in criminal justice system is based not just on race, but on class. According to The Sentencing Project’s 2018 report to the United Nations, “The United States in effect operates two distinct criminal justice systems; one for wealthy people and another for poor people and people of color. The wealthy can access a vigorous adversary system replete with constitutional protections for defendants.”
Public Defenders Need More Resources, Training
According to the American Bar Association, “Americans are being denied their constitutional right to adequate counsel” because public defenders are overworked. In a 2014 study of the Missouri State Public Defender’s Office, it found that public defenders spent an average of 8.7 hours preparing for the most serious felonies (except homicide) even though its survey found that 47.6 hours was required to prepare for such cases. This is just one of many reports the ABA has issued over the years detailing the excessive workload of the public defender.
Criminal justice reform should include a significant increase in funding for the public defender’s office so that the office can hire more attorneys and investigators and provide more resources for training. As it is, there is often a large disparity in funding between the prosecutor and public defender offices. For example, in 2020 in San Diego County, although 80% of the criminal defendants were indigent, the district attorney’s office budget was more than double that of the public defender’s office.
More Defenders Should Be Appointed Judges
Not only should we hire more public defenders to lessen the case load, but we should also appoint more former public defense attorneys as judges. This would help the public defender’s office compete with the prosecutor’s office in its recruitment of ambitious lawyers and it would help ensure that judges making decisions in criminal cases have a more diverse and broad perspective.
According to Cato’s project on Criminal Justice, seven times as many federal judges were former government advocates than were former government opponents. This disparity in backgrounds goes all the way to the U.S. Supreme Court, which has not had a justice with criminal defense experience in more than 25 years. (Thurgood Marshall left the court in 1991).
Top Defenders Should Be Elected
We should elect a top official in the public defender’s office just as we do with the district attorney to make the public defender’s office accountable to the people who want criminal justice reform. One reason why in most jurisdictions, the head of the district attorney’s office is elected while its counterpart in the public defender’s office is not, is that the district attorney’s office represents the people and should be hired or fired by the people. In reality, the public defender’s office also represents the public by fulfilling a constitutional right. It is also funded with taxpayer money.
An elected head of the public defender’s office would give the public a stake in the office and properly focus attention on whether the office is providing indigent defendants the level of attention the public deems just and fair.
Instead of diluting the power of the prosecutor’s office, let’s make its adversary in justice—the public defender’s office—equally powerful.
This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owner.
Dina Sayegh Doll is an attorney, television commentator, and certified mediator. She practiced law at Gibson Dunn & Crutcher LLP before co-founding the firm Doll Amir & Eley LLP. She analyzes criminal cases for the Law & Crime Network and comments on other legal issues for various media outlets.