Public Defenders Key to Reducing Mass Incarceration

The well-known introduction to Law & Order—the longest running legal series in TV history—is indicative of the criminal justice narrative that dominates American thinking:

“In the criminal justice system, the people are represented by two separate, yet equally important, groups: the police, who investigate crime; and the district attorneys, who prosecute the offenders. These are their stories.”

Police and prosecutors are the good guys in white hats.  Those accused of crimes are threatening and already presumed to be “offenders.”  And defense lawyers—the men and women who protect the rights of the accused—are rendered irrelevant.  We see this narrative dominant not only in our culture, but in our policy and politics today.

Even last week, President Obama ignored the role of public defenders in a panel he convened on criminal justice reform, a long-neglected issue I applaud him for tackling.  The panel included a police chief and a federal prosecutor but no defense attorney, much less a public defender. Like every set of recommendations introduced since this conversation began, the discussion failed to include public defenders as part of a broader reform strategy.

This devaluing of defense counsel is completely contradictory to our democratic ideals.  Our system recognizes counsel for the accused as essential if we are to achieve equal justice.  The Supreme Court said as much in Gideon v. Wainwright when it ruled that poor people accused of crimes must be provided counsel.  The Court recognized that without lawyers there can be no justice, for it is through counsel that all other rights are protected.

That decision was made in 1963, and we understood from experience that we could not always count on the judicial system to protect society’s most vulnerable members.  Poor people, and especially African Americans, had too often been treated abhorrently, and Gideon demanded that—through the right to counsel—there would be greater protections against such treatment in the realm of criminal justice.

Indeed, our nation came to understand the defense lawyer as heroic.  We rooted for lawyers like Atticus Finch in To Kill a Mockingbird, published in 1960 and awarded an Oscar for the film adaptation the year of the Gideon decision. We understood the criminal justice arena as a civil rights battleground, and the defense lawyer as critical to challenging a system that is inclined to trample the rights of the poor if left unchecked.

But as a “tough on crime” mindset took hold of the public psyche over the past four decades, we forgot the importance of our constitutional obligation to protect the vulnerable.  Instead we have created a community of “others”—almost exclusively poor and non-white—which needs to be monitored, controlled, and isolated from the rest of us.  In our rush to punish, the right to counsel gets short shrift as we fail to provide adequate resources so that defense lawyers can serve all of their clients effectively.

As a “tough on crime” mindset took hold of the public psyche, we forgot our constitutional obligation to protect the vulnerable.

Indeed, we have cheered law enforcement while demonizing the populations that are locked up and the advocates who speak for them.  In doing so we have fueled our generation’s greatest civil rights crisis—mass incarceration.   Of the 2.2 million people locked up in America, almost all are poor, and disproportionately of color.

And who represents the people who are being locked up? Public defenders, who serve roughly 80 percent of all of the accused. As a result of our under-investment in these vital public servants, many poor people are forced to rely on lawyers who may juggle 800 cases annually, or are so overwhelmed that they can only spend several minutes on any particular client. John Oliver brought national attention to this problem earlier this year. He highlighted how, for example, some New Orleans public defenders were limited to seven minutes per case, and their office was so under-resourced it had to resort to Kickstarter to raise needed funds.

If we want lasting criminal justice reform and a real end to mass incarceration, we must reverse this practice of ignoring the need for a strongly supported system of public defenders.

We can change laws designed to govern how police, prosecutors, and judges do their jobs, but if we do not adequately support public defenders so that they can point out when the rules are broken, violations will go undetected.

We can devise alternatives to incarceration, but if lawyers do not have the time and resources to unearth mental health issues, substance abuse problems, and other important life circumstances, judges will not have the information they need to ensure just outcomes.

The current national conversation offers us our best shot at comprehensive criminal justice reform since Gideon v. Wainwright.  If we truly care about justice and liberty for every American accused of a crime—regardless of income—then we need to stop treating this conversation as though it were an episode of Law & Order.

Public defenders—and how we as a nation support and invest in them—must be at the center of the reform debate.



Criminal Justice Reform Will Fall Short If We Fail to Invest in Civil Legal Aid

In recent weeks, both the House and the Senate have introduced bipartisan legislation that would begin to overhaul our nation’s broken criminal justice system. These bills are nothing short of historic. But unless policymakers also invest in civil legal aid to support formerly incarcerated people who are re-entering their communities, efforts to dismantle mass incarceration are doomed to fail.

For most returning citizens, release from a correctional facility doesn’t mark the end of their punishment. Individuals are commonly sent back into a community with only a few dollars, a bus ticket, and a few days’ worth of any needed medications. Many have no housing to return to—and living with relatives could put their families at risk of eviction due to draconian “one strike and you’re out” public housing policies. Finding a job is unlikely to happen overnight—or even within the first year of release—because of the great challenge of securing employment if one has a criminal record. And in many states, people convicted of felony drug offenses too often go hungry as they are barred for life from accessing the meager assistance that income and nutrition aid programs provide.

For most returning citizens, release from a correctional facility doesn’t mark the end of their punishment

To make matters worse, many returning citizens face debts in the tens of thousands of dollars due to child support arrears. In many states, these payments accumulate while individuals are behind bars, even though they have little or no way to earn income. And in a growing nationwide trend, states and localities are closing budget shortfalls through tactics such as charging inmates “pay-to-stay” fees for incarceration, collection fees, and even fees for entering a payment plan to pay off their debts. With funding for public defenders falling drastically short, some courts are even charging public defender fees for exercising one’s constitutional right to counsel.

In addition to trapping returning citizens in poverty, these financial debts can be a path to re-incarceration for those who are unable to pay. These and other obstacles to successful reentry are a big reason why more than two-thirds of formerly incarcerated individuals are rearrested within three years of release, many for crimes of survival. For example, M.H.—homeless, pregnant, and hungry—was rearrested for stealing two plums and three candy bars while on probation for another low-level retail theft offense.

So, what does all of this have to do with civil legal aid? Even though civil legal aid attorneys do not represent defendants in criminal proceedings, they play a critical role in dismantling a system that fuels a vicious cycle of re-incarceration by continuing to punish people long after they have served their time.

For example, civil legal aid attorneys help formerly incarcerated individuals secure affordable child support orders and fight other unjust fines and fees, so that they are able to avoid modern-day debtor’s prison. They help people obtain the necessary documentation to replace lost identification—which is key to getting reestablished in society. Civil legal aid attorneys also assist in getting driver’s licenses restored, which can be crucial to getting and keeping a job.

When employers illegally exclude jobseekers with criminal records, civil legal aid can help individuals challenge hiring discrimination. And many civil legal aid attorneys also help people clear their criminal records which improves their chances of finding employment.

Unfortunately, funding for civil legal aid has long fallen far short of what is needed to meet demand. As a result, for every client served by legal aid, a second person in need of services is turned away. Overall, less than 20 percent of low-income Americans’ civil legal needs are being met—a phenomenon known as the “justice gap.”

While sentencing and prison reforms are key aspects of building a fair and equitable criminal justice system, these reforms are not enough. Reversing the nation’s decades-long trend of mass incarceration will also require removing unnecessary barriers to employment, housing, education, and more. This means we must ensure access to the critical re-entry services that civil legal aid provides.

Earlier this year, the Senate Judiciary Committee passed an appropriations bill that—while far from sufficient to meet demand—would boost legal services funding for FY 2016 by $10 million. Meanwhile, House appropriators have called for slashing legal services funding by $75 million—a staggering 20 percent below the current funding levels. While Congress has passed a stopgap measure to keep the government funded until mid-December, as it continues to debate the budget it should ensure that any proposal includes adequate funding for civil legal aid.  Additionally, Congress should take swift action to reauthorize and boost funding for the bipartisan Second Chance Act. This legislation allows the Department of Justice to award federal grants to government agencies and nonprofit organizations—including civil legal aid programs—that provide services to support re-entry.

If the criminal justice reform legislation introduced this fall is enacted, many currently incarcerated individuals will have an opportunity to petition for reduced sentences or early release. Civil legal aid lawyers will be important partners in helping these individuals transition back into our communities and get back on their feet. Neglecting the back end of mass incarceration—including by failing to adequately invest in civil legal aid—is a recipe for ensuring that most people will end up behind bars again, and that many of the gains we see from criminal justice reform will be short-lived.


First Person

Mississippi’s Women Are Some of the Poorest in the Country. But We’re Getting Organized

This post first appeared at

When I think of it, I get chill bumps.

I never thought I’d see the day when so many women — of all backgrounds, but mostly women of color — would come together to make Mississippi a better place for ourselves, a better place for our children and a better place for our future.

But that’s what we’re doing right now with the Mississippi Women’s Economic Security Initiative (MWESI) — a movement to push an agenda that was developed the old-fashioned way: by talking to people about the obstacles they face and then addressing the issues they are concerned with. Nine town halls have been held across the state over the past year to give women a chance to speak up about their lives and learn from one another. And what we learned was this: The top priorities for women who are struggling — or who have struggled — in our state, are childcare, education, jobs and wages, health care, and domestic violence and child support.

As the initiative moves forward, the MWESI Leadership Team will draft bills that reflect the most crucial needs women raised in the Town Talks; and they will encourage women and supporters to call and write and e-mail our state legislators. They will need us to come to the state capitol next year when the 2016 legislative session starts, and we must turn out by the hundreds — by the thousands — to get lawmakers to vote on issues that matter to us.

I hear that MWESI team members are planning to go back to the places where they hosted Town Talks to hold civic workshops to teach us how bills become laws — so that we will understand why it is so important for us to push our legislators. I hear they are also planning to work with their partners to hold legal clinics to help us learn how to better navigate the system, and we have to come out to those workshops by the hundreds. These are the important next steps we must make toward making Mississippi women secure.

I am so thankful to have so many women standing with me as we embark on this journey to make our new agenda a reality in the state where you might least expect it: We have the highest women’s poverty rate in the nation at 23.1 percent; almost 1 in 3 of our children live in poverty, and nearly 65 percent of families in poverty are headed by single mothers. I consider all of the women who have come forward to work on this effort to be my sisters, and that makes me feel safe as we confront the great challenges that lie ahead for us.

I’ve come quite a long way in my own journey — a journey which has led me to become a part of this movement. I haven’t always been a woman who could stand confidently with other women. There was a time in my life when I felt small and unimportant. By the age of 18, I was pretty much a walking billboard for many of the negative stereotypes that are often attached to African-American women. I was a college student — so I was uninsured, unemployed, technically uneducated — and I was pregnant. And while having a child was a life shock to me, for many other naysayers it was exactly what was expected, because my own mom was only 19 years old when she had me. To many policymakers and too many other people, I was just another poor black child, born to another poor black child, bearing another poor black child. I was of absolutely no consequence.

The labels that were attached to me — baby mama, poor decision maker, uneducated, unworthy — I let those labels hold me down. And I held my head down for a long time. I took Medicaid to cover my child’s prenatal care and her delivery, and WIC so I could provide some essentials to her. And I went out and I found a job. My mom and my neighbor — they handled a lot of the child care my daughter needed because the wages I earned weren’t enough to cover the cost. That’s true for too many women in Mississippi and around the country today too. In fact, a mother earning the minimum wage ($15,080 per year) with two children would spend more than half of her income on child care in our state.

Eventually, I returned to school. But a year after my daughter was born, my Medicaid ended. So I was an uninsured mom, unable to access a lot of the routine health care that I needed in order to be a healthy mother to my child. As a student, I worked nights and weekends. And I struggled. A lot. I worried about my child care. I worried about my child. I worried about my bills. I worried about my own health care. But, eventually, I learned to stand tall again and to hold my head up for my own good and the good of my child. I graduated from college and I now have two degrees in social work.

But I quickly became aware that while education lessened my burden, it didn’t completely alleviate my struggle. For more than 10 years I worked two jobs trying to make ends meet. In our state, 26 percent of black women with college degrees still struggle to make ends meet. This statistic should come as no surprise, since the women of Mississippi make up half of the state’s workforce but hold 72 percent of the minimum wage jobs. And when women do look for opportunities through job training, too often they are steered towards low-wage jobs rather than family-supporting careers.

I know from experience how it feels to be college educated and still struggling. When my employers needed me on nights or weekends, many times I had to take my daughter with me. And I’m grateful for those employers and clients who allowed me to bring my little girl into the room with me, and let her sit in the corner and color or listen to music or put her head down, because they knew that I was struggling and just trying to make it for my child.

Now, as a social worker, I meet women all the time who ask me, “What do I need to do so that I can have safe, affordable, reliable child care for my children?” “How do I find health-care providers who have mom-friendly hours and allow me to come in after hours?” “What do I need to do for my own health-care services — not just for family planning but also my regular health-care needs?” And I have seen too many women, in tears, with their hands trembling, ask me “What do I need to do to make sure that I feel safe from domestic violence or sexual assault?”

To be honest, I didn’t always have the right answers for my clients. I didn’t always know what to tell them.

But I’ve learned that these questions are not unique to me or to my clients, and there are answers. When I came to the Initiative’s town hall in Jackson, there were 35 women and many of them stood up and asked these same questions and more. And I had chill bumps — because now I could go back to my clients, my friends, my family and my community, and say that we are working and fighting on these issues in order to make Mississippi women secure.

I can tell them that there are literally thousands of women who are working to make sure that we all have access to health care — 90,000 more women would be covered through Medicaid expansion alone. I can say that we are working for family-sustaining wages so that we don’t need government assistance; paid sick and family leave; and funding and technical assistance so that women can pursue non-traditional occupations. I can let folks know that we’re trying to close that wage gap so that we are paid the same money for the same jobs as our male counterparts, instead of 71 cents on the dollar. And I can tell people we’re fighting to make sure that women are protected in the event of sexual assault or domestic violence — 50 percent of sexual assault victims lose their jobs or are forced to quit. We are doing all of this and more — fighting for the economic, physical and emotional security of women in Mississippi, because you can’t separate any of those three things or substitute one for another.

I wish I could tell women it’s going to be easy, but we know it won’t be. There are going to be times when someone may be the only woman in a room, standing up for this agenda, but we won’t waiver. There are going to be times when people will try to divide us or make us feel small, but we will stand firm and hold our sisters tall. There are going to be times when we’re afraid, or just plain tired, but we can’t give up. And we can’t worry too much about how this ends, or where we are right now as we get started. We just need the courage to take a stand, and to fight for the women of Mississippi.



First Nations and the Canadian Election: 3 Takeaways for Native Americans in the US

Progressives south of the Canadian border are celebrating the sweeping victory of Prime Minister-designate Justin Trudeau and the Liberal Party in Monday’s election. With an absolute majority, the Liberals have achieved both the political mandate—and the power—to turn the tide on years of conservative policymaking and move our northern neighbors toward a more progressive future.

My family is Assiniboine—from the Carry the Kettle First Nation in Saskatchewan. Though politics drew an artificial boundary a long time ago, our people—like so many of our neighboring tribes— straddle the US-Canada border. Our families, cultures, and histories are borderless. That is part of the reason I pay a lot of attention to Canadian politics—and to what our First Nations and family to the north have to teach us.

Here are three takeaways from Canada’s election that tribes and political leaders should consider as we organize for 2016.

Close the Worst Gaps 

The differences in health, education, and well-being between Native and non-Native people on both sides of the border are stark. Last month, the Assembly of First Nations—the largest national organization representing First Nation citizens in Canada—released their priorities for the federal election. National Chief Perry Bellegarde opens the new agenda with a call to action:

“Closing the gap in the quality of life between First Nations and Canada builds a stronger, healthier country for all of us. We need change now—we must close the gap.”

The gap is indeed wide—but not just in Canada. Half of First Nations children live in poverty, a figure that is triple the national average. Here in the US, 47 percent of children on reservations live in poverty, compared to the US rate of 21.1 percent. Secondary school graduation rates are 35 percent for First Nation students, compared to 85 percent for all Canadians.  Here, Native students have a graduation rate lower than any other racial and ethnic group at 68 percent. The graduation rate for students served by the Bureau of Indian Education is only 53 percent, compared to the national graduation rate of 80 percent. Perhaps most troubling is the crisis of youth suicide on both sides of the border. First Nations youth in Canada commit suicide at five to six times the rate of non-aboriginal youth, and the Native Youth suicide rate in the US is two-and-a-half times the national rate.

Not only should our candidates in the US have clear platforms for improving the education, welfare, and health of tribes, but they should focus on closing some of the widest and most extreme gaps in outcomes between Native people and the rest of the population.

Each of the leading progressive parties in Canada had clear platforms for First Nations and policy commitments that targeted these gaps. The new Liberal government has committed to increasing funding for K-12 First Nations education by $2.6 billion.

US political candidates should use the campaign trail to meet with—and listen to—tribal leaders and their communities in order to build meaningful policy platforms.

Rock the Native Vote and Fight Voter Disenfranchisement

Strong grassroots organizing contributed to a huge Native voter turnout in the Canadian election. Polling stations in six First Nation communities ran out of ballots. Many local observers believe the shortage was due in part to the Canada elections board underestimating the turnout. The Assembly of First Nations identified 51 “ridings”—the name for local elections in Canada—where First Nations voters in particular influenced the outcome.

Organizers in the US are also helping to get Native people to the polls through initiatives like the Native Vote campaign, but they face a formidable obstacle—efforts to disenfranchise Native voters.

The situation is so bad in Jackson County, South Dakota, that the US Department of Justice has now joined in a lawsuit accusing county officials of disenfranchising Native people from the Pine Ridge reservation. This disenfranchisement occurs through a highly restrictive early voting system and polling locations that require traveling long distances. And in Buffalo County, South Dakota, members of the Crow Creek reservation make up 85 percent of the population but have very few accessible options to cast a ballot.

Candidates in the US should speak out loud and clear during the campaign about the need for a fair and accessible election system for Native people.

Listen to Young Native People 

When you look at the numbers, Native people in Canada and the US are a young and fast-growing population. This growth is clear in Canada when you consider that 54 Native people ran in this election.

Young Native people in the US were front and center in our politics this year too. Not only did President Obama meet with a group of Native youth during his trip to the Standing Rock Sioux Tribe, but he released a new Native youth agenda at the annual White House Tribal Nations conference, launched a new national leadership network called Generation Indigenous, and held the very first White House tribal youth conference this summer.

Candidates should pledge to keep this momentum going for our young people by building policy platforms that include Native children and youth. Take a cue from President Obama and his successful leadership in tribal policy.

There is no separation between the Native nations, peoples, and cultures that straddle the US-Canada border. It is colonial history and imposed political systems that necessitate advocacy for change on “both sides.”

North or South, elections still matter, and Native people deserve and need a strong voice to help determine our elected leaders and their policies.




New Mortgage Disclosure Requirements a Win for AAPIs

Last week, the Consumer Financial Protection Bureau (CFPB) released a much needed and long-anticipated rule—a milestone not only for fair housing policy and advocacy groups, but also for the nation’s growing population of Asian Americans and Pacific Islanders (AAPIs).

The new rule improves the reporting requirements of lenders under the Home Mortgage Disclosure Act (HMDA). Signed into law in in 1975, HMDA was enacted as a response to widespread urban disinvestment and redlining—the systematic exclusion of neighborhoods of color when marketing and offering home mortgage loans. Under the HMDA, mortgage lenders are required to report information about their applicants and loan decisions, including the race and ethnicity of borrowers and people who have been denied. But lenders haven’t had to disclose any data on applicant creditworthiness. As a result, the law has been severely limited in its ability to reveal discriminatory practices.

With the CFPB’s new rule in effect, there will be increased attention paid to the creditworthiness of applicants, including information on their debt-to-income ratios and credit scores—data that are key to uncovering discriminatory lending patterns and determining whether financial institutions are meeting the housing needs of the communities they serve. The new rule also requires more specificity in reporting on the ethnicity and race of applicants—a vital measure to ensure that HMDA data reflect our nation’s increasing diversity.

Prior to this new rule, while HMDA reporting requirements had been useful in shedding some light on mortgage practices in the Black and Latino communities, they have been completely inadequate for capturing the experiences of other communities of color, especially Asian Americans and Pacific Islanders. This is because HMDA data—like numerous other statistics—currently treat AAPIs as a uniform racial group, despite the fact that Asian Americans and Pacific Islanders represent more than 30 countries and ethnic groups that speak more than 100 languages.

The results of data analysis on AAPIs are therefore often misleading. For several years, HMDA data have portrayed the mortgage outcomes of the group as much better than those of other borrowers of color, thus reinforcing the “model minority” myth which asserts that people of color should follow the example of Asian Americans and Pacific Islanders. While it’s true that many hard-working AAPIs have done well in the US—getting a good education and good jobs, becoming homeowners, and building wealth—we also know that this story by no means applies to all AAPIs.

Like other people of color, many AAPIs still suffer from disparate treatment when looking for housing.

In fact, Asian Americans and Pacific Islanders are not only one of the fastest growing populations in the United States, but also one of the fastest growing populations in poverty since the Great Recession. They come from diverse socioeconomic backgrounds and therefore arrive in the US under widely different circumstances. They have a relatively high median household income compared to African Americans and Latinos, but this is largely due to the fact that AAPIs tend to have larger households and are geographically concentrated in the most expensive states—Hawaii, California, New York and New Jersey.

As a whole, the AAPI poverty rate is 12.6 percent. But if we look at individual groups within the AAPI community, we see just how misleading that figure is. Many individuals and families—especially refugees from Southeast Asia—are among the poorest people in the US. The Hmongs have a poverty rate of nearly 39 percent and Cambodians have a poverty rate of 29 percent—two percentage points above the African American poverty rate. AAPI homeowners were also hit very hard by the housing market crash. Falling housing prices, high rates of foreclosures, and low property values have resulted in a significant loss of wealth in this community. Asian Americans and Pacific Islanders have also endured the largest percentage decline in homeownership rates of any racial group.

Southeast Asians have been particularly vulnerable to foreclosures, as they have higher concentrations of workers in low-wage sectors, lower education levels, and higher rates of linguistic isolation than the broader AAPI community. The Central Valley in California—home to one of the largest concentrations of Southeast Asians—is among the areas that have been most devastated by the foreclosure crisis. Along with the Inland Empire area of Southern California, Central Valley counties feature the highest concentration of foreclosed/Real Estate Owned (REO) properties—and loans at risk of foreclosure—in the state of California. In 2010, the City of Merced had the third worst foreclosure rate in the country at 11 percent. Hmong and Lao comprise 25 percent of the residents in the Merced neighborhoods that were targeted for foreclosure programs.

Like other people of color, many AAPIs still suffer from disparate treatment when looking for housing: one in five AAPIs experience discrimination in the rental and home buying process. Addressing the barriers to housing faced by a diverse AAPI community and others is critical to ensuring that everyone has the opportunity to build wealth for their families—essentially, to achieve the American Dream.

Kudos to the CFPB for taking a powerful step in the right direction.