By Irene Oritseweyinmi Joe

While the public defender is critical to protecting individual rights in the U.S. criminal process, state governments take remarkably different approaches to distributing public defense services. Some states organize indigent defense as a function of the executive branch of state governance; others administer indigent defense through the judicial branch. The remaining state governments do not place the public defender within any branch of state government, instead delegating its management to local counties. This administrative choice has important implications for the public defender’s efficiency and effectiveness. It influences how the service will be funded and the extent to which the public defender, as an institution, will respond to the particular interests of its local community. So, which branch of government should oversee the public defender? Should the public defender exist under the same branch of government overseeing both the prosecutor and police—two entities the public defender seeks to hold accountable in the criminal process? Should the provision of services be housed under the judicial branch—although this branch is ordinarily tasked with being a neutral arbiter in criminal proceedings? Perhaps a public defender that is independent of statewide governance is ideal, even if that might render it a lesser player among the many government agencies battling at the state level for limited financial resources. This Article answers the question of state assignment by engaging in an original examination of each state’s architectural choices for the public defender. Its primary contribution is to enrich our current understanding of how each state manages the public defender and how that decision influences the institution’s funding and ability to adhere to ethical and professional mandates. It concludes the public defender should be an important executive function in this modern era of mass criminalization and articulates modifications that would improve such a state design by insulating it from pressure by other system actors.

106 Iowa L. Rev. 113 (2020)

By Jim Quinn  

Since New York State’s 2019 bail reform went into effect, controversy has swirled around the question of its impact on public safety—as well as its broader success in creating a more just and equitable system. The COVID-19 pandemic (which hit three months after the bail reform’s effective date), the upheaval following the killing of George Floyd, and the subsequent enactment of various police and criminal justice reforms are confounding factors that make assessing the specific effects of the 2019 bail reform particularly complex. This paper attempts to give the public a better sense of the risks of this policy shift and the detrimental effect that the changes have had on public safety. First, I will lay out the content of the bail reform and will measure pertinent impacts on crime and re-offending rates. Then I will review changes made in the 2020 and 2022 amendments. I will look at the push for supervised release and closing Rikers Island and how those initiatives fed into the momentum behind these laws. Finally, I will propose recommendations to improve bail reform’s impact on public safety, which include: 1. Allow judges to set bail, remand, release on recognizance (ROR), or conditions of release for any crime and any defendant. There should be a presumption of release for misdemeanors and nonviolent felonies, which could be rebutted by the defendant’s prior record or other factors that indicate that the defendant is a flight risk. There should be a presumption of bail, remand, or nonmonetary conditions for defendants charged with violent felonies or weapons offenses. This presumption could also be rebutted by evidence of the defendant’s roots in the community, lack of criminal record, and similar factors

New York: The Manhattan Institute, 2022. 29p.

By MacArthur Foundation

The fair and just treatment of racial and ethnic minorities at all stages of the criminal justice system is of significant importance to communities of color, practitioners, and scholars alike. Central to this discourse is a recognition of the discretionary power that prosecutors wield in shaping the outcomes of criminal cases. This includes, among other things, the decision to file or drop a case, amend the severity and number of charges, and dispose of criminal cases through plea bargaining. This report focuses on the outcomes of prosecutorial decision making in Milwaukee County, Wisconsin. Specifically, it assesses the extent to which racial and ethnic disparities exist across the following five decision points in criminal case processing: (1) Case charging; (2) Charge changes from arrest to charging; (3) Disposition type; (4) Charge changes from charging to disposition; and (5) Sentencing. We encourage the reader to interpret the results while recognizing that criminal case processing can trigger disparate outcomes for racial and ethnic minorities for a number of different reasons. Some of these reasons, such as defense attorney role and judicial discretion, are beyond the immediate control of prosecutors. At the same time, our partners are keenly aware that prosecutors can and should play a vital role in uncovering and addressing racial and ethnic disparities in the criminal justice system, and this report stems from that recognition. The intent of this report is to prompt discussion and raise questions, rather than provide definitive answers. We also want to stress that the findings presented throughout this report cannot be used to support or refute possible racial and ethnic biases. Our methodology simply does not permit that. Rather than serving as an end point, we view this report as a starting point from which to engage in meaningful discussions concerning policies and procedures that can ameliorate racial and ethnic disparities in case outcomes. Furthermore, given that prosecutorial decision making does not operate in a vacuum, certain findings direct attention to ways district attorney’s offices, the defense bar, law enforcement agencies, and the judiciary can galvanize future reform efforts. Even more importantly, continued efforts to engage with minority communities will be critical for increasing public trust in and cooperation with the criminal justice system. This report is part of a series of publications resulting from this partnership. The first report, Prosecutorial Attitudes, Perspectives, and Priorities: Insights from the Inside, was released in December, 2018. The second report, Race, Ethnicity and Prosecution in Hillsborough County, Florida, was released in July, 2019. The final report in the series, focused on prosecutorial performance indicators, will be released near the end of 2019.   

2019. 62p.

By Michael Johnson, Jr.

The use of criminal legal fines and fees to fill state and local budgetary gaps has deep roots in a history of anti-Black racism. That history is evident in Washington, DC where the regressive nature of these financial obligations and the high costs of incarceration criminalize, extract wealth, and create collateral consequences that disproportionately impact Black and low-income communities. This report details the harms of fines and fees in DC’s criminal legal system, particularly for those unable to pay, and the perverse incentives created by using fines and fees to fund core government services. The authors use interviews with four formerly incarcerated DC residents to highlight the need for systemic reforms and provide recommendations to mitigate these harms in DC.

Key Findings:

• In federal BOP facilities, people who do not make payments towards their fines lose privileges such as access to commissary spending, denial of higher pay opportunities for work assignments, and denial of drug treatment and community-based programs.

• D.C residents can be incarcerated for up to a year for unpaid court financial obligations.

• The DOC and BOP require anyone with outstanding financial obligations to pay their debt in full as a condition of release, and failure to do so can result in re-incarceration.

• Revenue from Mayor Bowser’s addition of 342 traffic cameras in 2023 is expected to double between fiscal years 2024 and 2025.

• Criminal fines range from $100 for minor offenses to $125,000 for offenses punishable by 30 years or more.

• Workers in local DOC facilities earn up to $.50 per hour; a 15-minute phone call is more than double the hourly earnings for someone incarcerated in local DOC facilities.

• DOC charges a 9 percent surcharge on all commissary goods — on average, generating over $2 million annually between 2018 and 2023. 

• The work release program in DC requires incarcerated workers to pay fees on their wages, effectively functioning as a 20 percent income tax.

Recommendations:

• Improve transparency by investing in data systems that can collect, coordinate, and report on criminal fines and fees.

• Eliminate incarceration and supervision-related fees.

• Provide economic support for those with criminal legal involvement and their families.

Washington, DC: The DC Fiscal Policy Institute, 2024. 33p.