A Phoenix defender observed during the site visit, “If you can bond yourself out, your perception of our justice system is completely different. … The system uses in-custody status as a way to coerce pleas.” It was evident at the New York conference that defenders, as well as clients, feel great pres- sure from the volume of in-custody clients who cannot make bail. One survey respondent from New York wrote, “[b]ail is set (so high) which forces us to give up on cases in order to get the client out.” Another New York defender summed it up perfectly, stating that it is hard to fight against the excessive bonds and in-custody status. “Clients want to be home.” A Philadelphia defender reported that they have a chronic problem with homeless and/or poverty-stricken individu- als who remain in custody on minor misdemeanor charges such as public urination or disorderly conduct because they cannot pay bail amounts as low as $100. When they finally get an opportunity to appear in court, they all plead guilty to time served, which by then is frequently longer than they would have served if found guilty of the offense. A veteran New York defender, in a survey response, noted that the pressure to plead due to failure to make bail is often greater on defendants of color. Judges often set bails equally across defendants, but those bails are, in his experience, harder for minority defendants to pay. “Black kids and to a lesser extent Latino kids are held on bails that they are far less likely to meet … A judge may hold … client A to a $1000 bail and … client B to the same, but for A it is a weekend in the city, for B it is two weeks salary or two months of public assistance.” Prosecutorial Pressure to Plead Often, prosecutors put pressure on defendants to plead guilty at the first court appearance by offering a more fa- vorable plea bargain if, and only if, the client pleads guilty that day. Time and time again, defenders reported getting plea bargain offers just before the first hearing that would allow the client to go home, if they accepted the plea that day. Such plea offers place enormous pressure on the clients, who, as noted above, want nothing more than to go home. One blogger from Texas described an experience that is consistent with the reports from around the country:
“A system of ‘meet’em, greet’em, and plead’em’ … where overworked defense attorneys actually don’t even meet clients before disposition hearings — is a recipe for wrongful convictions and a pervasive lessening of respect for the rule of law.”
— Judge Joseph Bellacosa, New York. 167
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dant had a decision to make — Get out of jail with no fine, or fight the case and stay in jail. Hmmmmm..... Tough choice. It was a no brainer for defendant’s [sic] to accept the plea bargain. I spent most of my time explaining plea papers and guilty plea consequences. 168
Similarly, a lawyer responded to a survey question con- cerning whether effective assistance is possible given the caseload as follows:
It’s a complicated question. On regular dockets, I think we do provide effective counsel, but we have a “review docket,” which is usually within 24 hours of ar- rest. On a review docket, there is a non- negotiable offer from the DA that we convey. We have no prior knowledge of the case and do not have time to talk to the defendant before getting offers from the DA. We have a very, very short time with each defendant. In my opinion, we do not usually provide effective assis- tance on the review docket. You cannot represent 30-40 people in a two-to three- hour period effectively.
My First Job ...was with the Wichita County Public Defender. It did not prove satisfactory for a few reasons. First of all, the misdemeanor prosecutor would offer time served and no fine to 90 percent of my clients. The Sheriff had a policy of giving 2 for 1 credit for time spent in jail. Typically I would be assigned a defen- dant who had spent 21 days in jail. De- fendant would be placed on the jail chain and dragged into court. The DA would offer 42 (21x2) days time served, with fine and court costs paid for. The defen-
“There is no question a lot of those folks are pleading guilty to get out.”
— A judge in the City of Phoenix court.
Problems
The Terrible Toll of America’s Broken Misdemeanor Courts
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