Christy Perry, a Republican state representative and co-owner of a gun shop in Boise, regularly travels with her husband to gun shows to sell their wares. Voters come to her booth so often that her husband jokingly plunked a sign next to the AR-15s: “Gun talk only. No politics.” A couple of years ago, Perry began broaching a subject with her customers that was mostly unfamiliar to them: the nation’s crumbling system of free legal defense for the poor. In Idaho, where personal responsibility is a foundational value, anything that smacks of a government handout is looked at with deep suspicion. But Perry framed the idea in terms of another issue she knew the gun show attendees felt passionately about.
“I’d say, ‘What if you get convicted of a felony — and you shouldn’t have, because you didn’t get adequate defense — and now you’ve lost your gun?’ They recognized that this is really about limited government.”
Since Perry, 49, was elected in 2010, she has voted to weaken labor unions, restrict abortion, hobble gun control, boost charter schools and stop towns from limiting the use of plastic bags — a menu of standard conservative causes. The crisis in public defense, however, was not a priority for her when she arrived at the capitol. But Perry is now one of a new group of conservatives — from right-leaning legislators to the deep-pocketed Koch brothers — nudging red states toward public defense reform by citing the flawed system as just another example of big government abuse. Perry’s awakening on the issue helped propel a campaign by a longtime criminal justice advocate to persuade some of the most government-bashing politicians in America that to protect the rights of individual citizens required that same government to spend millions more in tax dollars.
The same year Perry was elected, the National Legal Aid and Defender Association published a damning report that got the Idaho legislature’s attention. Written by a legal reform expert named David Carroll, the report laid out the many failures of Idaho’s public defense system: The state provided no money for criminal lawyers for the poor; counties picked up the tab, often paying a flat fee no matter how many cases lawyers handled. As a result, Idaho’s public defenders were juggling impossible caseloads. In one county, defense lawyers spent an average of only 2.2 hours on each client. (It’s a similarly grim story nationwide: Studies have shown that public defender offices frequently fail to meet caseload guidelines set by the American Bar Association, which recommends no more than 150 felonies or 400 misdemeanors per year, per lawyer.)
Meanwhile, Perry’s colleagues were whispering that the American Civil Liberties Union was preparing to sue the state over its failure to provide adequate public defense. But the wheels of policy-making often move slowly, and it wasn’t until 2013 that Perry was appointed co-chair of a committee to improve the state’s indigent defense system. Her committee heard testimony from judges, prosecutors, defenders and experts including Carroll. “The right to counsel itself is nonpartisan,” Carroll told the legislators. “[It] goes to the core of who we are as Americans because it is a question of liberty versus tyranny.” Perry fixated on one statistic: Approximately 95 percent of criminal cases are plea-bargained, in part because public defenders are too overwhelmed to take them to trial. “That means the state never even has to prove you did anything,” Perry said. “They hold all the cards.”
Around that same time, a police encounter made Perry even more wary of the power of the judicial system — and more determined to keep it in check. After she contacted local officials on behalf of a constituent whose son was taken by child welfare authorities, Perry was approached at the capitol by police who wanted to know the constituent’s whereabouts. “I felt pounced on,” said Perry, who told officers that she wouldn’t talk without a lawyer. “They kept following me, all the way to my car. I’m a strong enough person that I can tell them ‘no’, but I thought: What if it was someone else? I was mad about it.”
former Republican Michigan State
Rep. Tom McMillin
Co-owner Buckhorn Gun and Pawn
Perry got to work on a public defense reform bill. Some lawmakers said that high-quality public defense would be too expensive, or that it would help undeserving criminals. Others said it would make government even bigger. But Perry argued that public defense was at its core a conservative cause. "In all criminal prosecutions, the accused shall enjoy the right...to have the Assistance of Counsel for his defence," reads the Sixth Amendment. “You can’t argue with that,” Perry said. “Not in a conservative state.”
Last year, Perry’s indigent defense reform bill passed Idaho’s legislature almost unanimously. It allocated $5.5 million for public defense and gave the state authority to hold counties accountable if they fail to meet new standards for caseloads and quality.
Over the past decade, Republican lawmakers across the country have passed bills to reform public defender systems in Louisiana, Michigan and Utah; similar efforts are underway in Tennessee, Mississippi and Indiana. Meanwhile, legislators in blue states like California and Washington have failed to address their own dysfunctional systems. (There are exceptions. Left-leaning Colorado recently beefed up public defense funding, and New York State just promised funds for counties to meet higher statewide standards.) But the momentum on this issue is clearly being driven by red states, which have proven remarkably responsive to a constitutional argument that departs from progressive ideology that often emphasizes racial and class inequality.
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Most incarcerated people in the United States are black or Hispanic, who comprise 56 percent of the prison population but only 32 percent of the U.S. population, according to 2015 figures compiled by the NAACP. The criminal justice system’s disproportionate impact on people of color has become more recognized in recent years, driving the Black Lives Matter movement and scholarship in books such as "The New Jim Crow." But for the growing coalition of conservatives working to reform public defense, race isn’t the central issue. Poor white defendants are being failed by the public defender system just as non-white ones are, they contend. According to the Bureau of Justice Statistics, which last conducted a survey on this subject in 1997, 69 percent of white inmates in state prison said they had court-appointed lawyers, while 77 percent of black and 73 percent of Hispanic inmates did. Many conservatives believe that pointing out racial disparities in this context is polarizing and counter-productive.
But some progressives wonder how successful any reform effort that neglects to highlight race can ultimately be. Christy Perry’s Second Amendment appeal may have worked in her mostly white and conservative state, they say, but how would it play in more diverse parts of America? “At some point, you have to address the underlying issues of racism and classism,” said Daryl Atkinson, a former staff attorney at the North Carolina Office of Indigent Defense Services and co-director of Forward Justice, a civil rights advocacy organization. “Otherwise we’re kind of putting a Band-Aid on cancer.”
Carroll, who has helped restructure public defense systems in 15 states, has heard reactions like Atkinson’s from many liberal reform advocates. But he says looking at the issue through the lens of big government overreach — or what he calls “the tyranny prism” — may provide results that the left ultimately cannot argue with, even though it means sacrificing a central tenet of their ideology.
“A tyrannical government hurts those with the least voice in the political process first, including the poor and people of color,” Carroll says. “Tyranny explains what people on the left want to explain, that the criminal justice system has disproportionate impacts on people of color.” But conservatives are often hesitant to declare the system racist, he said. “The tyranny prism is a framework that allows conservatives to be at the table, too.”
“I’m not trying to excuse racism. I don’t deny racial disparities, those are facts,” Carroll says. “But people don’t believe, ‘I’m racist.’ So why do you have to force them to go to confession just to start working on this? All it does is drive a wedge and make this impossible.”
David Carroll remembers when he first understood the price poor people paid for not being able to afford a good lawyer. In the mid-90s he had just graduated from college and was in Tennessee, working for a group that studied legal systems for the poor. While sitting in a Memphis courtroom, he watched a public defender standing on a chair to offer the same plea deal to a room full of mostly black defendants.
This, he knew, was not what the Supreme Court had intended in 1963 when it ruled in Gideon v. Wainwright that defendants facing felony charges had a right to a lawyer even if they couldn’t afford one. Later, the right was extended to anyone facing jail time. But in practice, that promise is broken time and again. Without direction from the court, states have developed a hodgepodge of systems, from state- and county-run public defender offices to contracts with private attorneys and nonprofits.
About 80 percent of criminal defendants in the U.S. are eligible for court-appointed attorneys, including public defenders. But their fates are often determined by luck and geography. In Delaware, defendants have been pressured to meet with prosecutors before their eligibility for a public defender had been determined. In Mississippi, they’ve been jailed on bail they can’t afford before consulting a lawyer. In Missouri, defense attorneys have appeared in court completely unprepared. In California, some attorneys spend little more than an hour on each case. And in Washington state, lawyers for children have encouraged their clients to plead guilty even when additional motions were available.
These problems are all too familiar to Carroll. For close to a decade, from 2002 to 2012, he worked as director of research for the National Legal Aid and Defender Association, a nonprofit focused on legal aid for the poor. In that role, he worked alongside the ACLU and other groups that often have antagonistic relationships with policymakers. (Since the mid- 1990s, the ACLU has filed nearly a dozen indigent defense lawsuits against states, pressuring policymakers to prioritize the right to counsel). But Carroll no longer wanted to be seen as the opposition by those in power; he wanted to be a partner. He felt his association with the NLADA, a membership organization for lawyers, was an obstacle to convincing legislators to see him as a trusted source. In 2013, he formed the Sixth Amendment Center, a nonprofit that analyzes state public defense systems and offers expertise to government leaders. Working as an ally, Carroll could go about convincing lawmakers to fix their own systems for their own reasons. “My job is to find out how my issue fits into your worldview, not the other way around,” he said.
The first serious test of his legislative approach in a red state came in Louisiana in 2006. That year, Carroll was working with then-state Rep. Danny Martiny, a Republican from the parish that once elected former Klu Klux Klan Imperial Wizard David Duke to the state legislature. Carroll was warned by leaders of the state's criminal defense bar that the meeting would be useless, but Martiny was surprisingly eager. “He saw [public defense] as integral to holding up the Constitution,” Carroll said.
Martiny built consensus with the Republican-controlled legislature, judges, defenders, and prosecutors. He pushed back against what he called his colleagues tendency to frame having a lawyer as “a perk the defendant gets,” and instead spoke about public defense as a constitutional imperative and a measure to protect crime victims. “There’s no worse feeling for a victim, or a victim’s family, then when they have gone through a prosecution... and then they’re told, ‘We’ve got to do this all over again because the public defender … had a caseload of 175 cases and should have only had 35 or 40,’” Martiny told colleagues. His indigent defense reform bill almost unanimously passed both chambers.
With that, Louisiana became the first state to institutionalize case weighting — a standardized way to denote the number of hours a case requires, which is used to control attorney workloads — amongst other reforms. It was a significant victory in a state with the country’s highest incarceration rate. Yet the law did not alter Louisiana’s practice of partially paying for indigent defense with unpredictable traffic-ticket revenue, and even now, the state’s system remains notorious. Despite that setback, the experience helped Carroll see an “old Southern white gentleman” as a potential ally. He would soon find that Tea Partiers could be partners, too.
In 2008, Tom McMillin was elected to Michigan’s House of Representatives, then in the hands of the Democrats, on a platform of tax cuts and a part-time legislature. A staunch conservative, McMillin, 52, was a “no” vote on virtually everything out of deep skepticism about state power.
When he took office, the state’s public defender system was under scrutiny. Lawmakers were circulating a report published shortly before the election, written by Carroll and other members of the NLADA, that ranked Michigan’s system as one of the worst in the country. Lawyers were untrained and overburdened; defendants were unwittingly waiving their right to counsel; and in some courts, counsel was not even offered to those facing misdemeanors. One year earlier, the ACLU had filed suit against the state for its failures. A coalition of advocates teamed up to persuade Republicans, specifically libertarians like McMillin, who were passionate about due process, to join their cause. McMillin was moved by stories of people who lost their freedom due to inadequate representation. “If there’s one thing the government must get right, it’s whether or not we’re locking up the right people,” said McMillin, who came to the issue as wrongful convictions for serious crimes like rape and murder were grabbing national headlines.
McMillin raised the public defender crisis at caucus and in meetings with Tea Party groups. He supported a reform bill in 2009 and then co-sponsored one in 2012 and 2013, when it finally passed with strong support from Republican Gov. Rick Snyder. McMillin’s sustained passion over the years surprised many. “At first, I didn’t understand why this conservative guy was so adamant about this,” said Michigan District Court Judge Tom Boyd. “But I came to understand. If you asked him, he would say, ‘The government shouldn't exist. But if it does, its primary function should be to protect people from the government.’”
The bill McMillin spearheaded created the Michigan Indigent Defense Commission, established state standards for public defender services, promised money to counties, and created a process to verify that the right to counsel is met — with the threat of state takeover if a county fails to comply. The changes prompted the ACLU to drop its lawsuit.
“This is one of the best examples of how you do policy that I’ve ever seen,” said Shelli Weisberg, political director for the ACLU of Michigan. The level of cooperation from both ends of the political spectrum is something Weisberg has never forgotten. “We had respect for each other. We weren’t going to exploit each other's weak points,” Weisberg said. “For example, we did not use racial disparity as our first line with the conservatives.”
Almost every state overhaul in recent years has followed a similar path. There’s a damning report, usually written by Carroll, documenting the failures of indigent defense. In response, the state forms a bi-partisan commission. Usually, there’s a lawsuit, often filed by the ACLU, to pressure policymakers. And along the way — the process can take years — Carroll is hammering home his message that reforming public defense is about protecting individuals from a tyrannical government.
For many conservatives, reform is also about saving taxpayer money, since it can reduce the costs of unnecessary incarceration, endless legal appeals, and lawsuits from those wrongly imprisoned. This is one of the notions that drew William Koch Jr., to the issue in Tennessee, another state where Carroll is helping to overhaul the system. Koch (no relation to the right-wing billionaire brothers, Charles and David) doesn’t exactly have a reformer’s resume. During his career as a government appointee and judge, he drafted legislation to punish certain crimes more harshly and affirmed numerous capital cases.
Now chair of the Tennessee Supreme Court’s Indigent Representation Task Force, Koch released a report calling for a statewide commission to administer public defense, provide support for defender offices, and raise compensation for private attorneys handling indigent cases. (Tennessee pays court-appointed attorneys one of the lowest rates in the country—$50 an hour, close to 20 times less than the hourly rates charged by experienced private attorneys.) “To fund programs intended to provide effective representation to persons accused of crime, when you phrase it that way, it becomes a very low priority,” Koch said. But “that is actually a quintessentially fiscally conservative thing to do.”
“We spend more than $250 billion on the criminal justice system annually,” said Mark V. Holden, senior vice president and general counsel of Koch Industries Inc., which is led by Charles and David Koch. “Meanwhile, states don’t have enough money to fund roads, education, or other infrastructure.” If we convict and incarcerate fewer people, the government will save money in the long run, he argues. In 2014, Koch Industries provided a grant to the National Association of Criminal Defense Lawyers which funded a first-ever assessment of Indiana’s system. That report, again, authored by Carroll, was released last October and almost immediately, the Indiana Public Defender Commission voted to support legislation that would include misdemeanor cases in reimbursement, increase funding and create a task force to devise long-term reforms.
In the past few years, Koch Industries has made public defense one if its top priorities, funding statewide evaluations and training for defenders. Its support has helped cement the issue as a priority for conservatives. Even Republican Sen. Chuck Grassley, chairman of the Senate Judiciary Committee, who often takes hard-line stances on criminal justice issues, has become outspoken about indigent defense. In 2015, Grassley called for the first-ever hearing on the denial of counsel in misdemeanor cases. “I would say the criminal justice system is a failed big government program, for sure,” Holden said.
Despite recent successes in red states, some advocates for the indigent have doubts that framing public defense solely as a tyranny problem, rather than one of racial or class inequality, will work in diverse states.
“It’s not going to take us all the way where we need to be,” said Daryl Atkinson of Forward Justice. Novella Coleman, an ACLU attorney and lead counsel in a lawsuit against California, said that in her experience, decision makers on the left and right get interested when they see the accused as people worth caring about. “I think that feeling compelled to tell someone’s story in a colorblind manner in order to get political buy-in, I don’t think at the end of the day that’s going to be as compelling as telling people’s complete stories,” Coleman said.
But Carroll stands by his belief that focusing on racial disparity only divides people and stymies progress. He said judges in Tennessee have said to him: “We’re so thankful you’re not saying we’re racist.”
But progress, no matter how it is achieved, doesn’t mean as much if the government doesn’t follow through on its obligations. In Michigan, funds have not yet been disbursed to local governments. The ACLU in Idaho and Utah is still pursuing lawsuits against those states, citing insufficient funding. Idaho may have dedicated $5.5 million for indigent defense, an amount that will be renegotiated annually, but it still leaves most financial responsibility with the counties. Meanwhile, the state has not yet finalized standards for defenders. “We don’t want to not acknowledge the steps that have been taken, but we’re seeing on the ground that these promises aren’t materially benefitting indigent Idahoans in the courtroom,” said Kathy Griesmyer, public policy strategist for the ACLU of Idaho. Similarly, Utah has appropriated $2 million this year, but that only makes up about 6 percent of what’s needed. “It’s all good to talk about tyranny,” said Marina Lowe, legislative and policy counsel for the ACLU of Utah. “But at end of the day, someone has to pay for it to be fixed.”
Other advocates say true reform will also require a cultural shift among lawyers. “We have public defenders who, while well-intentioned, sometimes see their role as making sure the system moves quickly and efficiently” rather than providing the best defense for clients, said Jon Rapping, founder of Gideon’s Promise, a nonprofit that trains public defenders.
Still, Carroll is as hopeful as ever. The Nevada legislature passed a bill this spring that creates a statewide indigent defense commission. In 2015, the Mississippi Public Defender Task Force authorized Carroll to evaluate felony indigent defense in a report due out later this year, and the legislature seems poised for action. Mississippi, where 38 percent of the population and 28 percent of the legislature is black, according to a 2015 survey, will be a test of Carroll’s assumption that using the colorblind “tyranny prism” approach will work in more diverse states.
Meanwhile, some conservative lawmakers who became passionate about indigent defense have turned their sights on other examples of what they see as abuses in the criminal justice system. In Michigan, McMillin continued his partnership with the ACLU, drafting legislation to limit civil asset forfeiture and warrantless police searches. And in Idaho, Perry said she and a fellow House member have crafted a bill to eliminate mandatory minimum sentences for drug crimes.
“It’s funny,” she says, “I’ve started filtering my questions through the eyes of a public defense commissioner a little bit.”