Criminal defense attorneys deserve major respect. They’re the essence of the essential workforce in the midst of the pandemic—physically appearing in court to advocate on behalf of society’s cast-offs, fighting for justice in a system often stacked against them and their clients.
Despite significant reforms over the course of the past decade, too many underprivileged and minority defendants are still viewed as less than human, and “innocent until proven guilty” is merely a dream for them.
As long as the system continues to disrespect defendants, their attorneys will be, for all intents and purposes, guilty by association. They will find themselves disrespected within the system and forced to work harder and jump through more hoops to protect their clients’ interests. They will see prosecutors treated with greater deference than their peers on the other side of the aisle.
An attorney forced to wait at the jail for two hours before being told her client isn’t available to meet with her, a judge yelling at defense counsel simply for advocating on behalf of his client, a 500-year sentence for a nonviolent crime just to make a point—these are fundamentally wrong. An adversarial system should work toward justice, not be stacked at every level against defendants and their attorneys.
Justice is best served when all parties—judges, prosecutors, and defense attorneys—work in a collaborative and respectful manner to achieve a just outcome. In a system that tilts precipitously against minorities and the underprivileged—who are at higher risk of arrest—the goal should be to find solutions, not simply to lock people up.
Replacing the win-at-any cost mentality with an adversarial system based on mutual respect and transparency is a good place to start.
Reform Punitive Mindset
Prosecutors represent “the people”—including criminal defendants—but they’re part of a system that pushes them to get convictions at any cost. They have almost unlimited discretion to file charges, to bump misdemeanors up to felonies, and to impose onerous conditions in an effort to force defense attorneys to accept bad deals for their clients.
On top of this, prosecutors have absolute immunity for any wrongdoing committed in the course of their official duties and can hide exonerating discovery evidence or the unavailability of witnesses from the defense without personal consequences. Don’t get me wrong: There are plenty of prosecutors who understand the importance of acting fairly in the pursuit of justice. They should be the norm, not the exception.
It’s time to consider limiting prosecutorial immunity. Prosecutors must be equally invested in the quest for justice and should be held accountable for any roadblocks in that quest.
Society has paid a steep price for a punitive mindset, and it’s time for judges, prosecutors, and defense attorneys to think seriously about the roles they play in the criminal justice team. Calls to reform police departments in the wake of George Floyd’s death are overdue, but law enforcement works within the context of a system that continues to prize law and order above human dignity and personal redemption.
Every year thousands of men and women—many innocent, most minorities, a significant percent mentally ill—are relegated to prison for months, years, and sometimes decades. Prisons have no purpose other than punishment, and hundreds of thousands—young adults, hard-luck cases, mentally ill—are written off and locked up for drugs, burglary, and other nonviolent offenses. They’re condemned to lose any chance at redemption.
Embrace Prevention and Rehab
As part of our collective soul-searching about historical inequities, we must embrace a model that focuses on prevention and rehabilitation, rather than putting people behind bars and throwing away the key.
It’s not about defunding police, but addressing the underlying problems that lead to criminal behavior. The system should be preventive, dealing with issues before they get out of hand, allocating funds to programs that really make a difference.
People dealing with issues such as mental illness and addiction don’t deserve to be penalized; they deserve a second chance. Instead of being warehoused, they should be learning life skills and contributing to society.
Other countries have successfully implemented diversion for drug users: In Portugal most drug users are referred to “Commissions for Drug Addiction Dissuasion” rather than prison; Swedish drug policy emphasizes prevention and treatment, with free treatment provided through the health-care system and municipal social services.
Alternatives to incarceration in this country have also been shown to be effective, but we remain overwhelmingly committed to the incarceration model.
A Model: The CASA Program
Programs such as the federal Conviction and Sentence Alternatives(CASA) help defendants tackle issues such as drug addiction, mental illness, or just plain bad decision-making that led them to commit crimes.
CASA uses a collaborative model to address behavior, rehabilitation, and the safety of the community. Participants show up in court at least every couple of weeks to meet with fellow participants, a judge, assistant U.S. attorneys, public defenders, and pretrial services officers. They submit to random drug tests and check in regularly with their assigned pretrial services officer. If they successfully complete the intensive program, they can avoid prison or even have their cases dismissed outright.
It’s time that we significantly step up funding for these types of programs at both the state and federal level while expanding their scope to include multiple points of review—prosecutors, judges, pretrial officers, defense counsel. We must ensure that consideration is given to the benefits of diversion for every appropriate defendant as we work together to get deserving defendants—most of them minorities—off the prison rolls and back into society.
Until the criminal justice system fundamentally changes to provide both dignity and second chances to those caught in its cycle, the criminal defense bar will continue to be second-class citizens, along with the disadvantaged clients they represent.
This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.
Lara Yeretsian is a Los Angeles criminal defense attorney and principal of Yeretsian Law. She worked on the legal teams defending Michael Jackson, Scott Peterson, and other high-profile criminal prosecutions.