February 2007
Effective Public Defense —Benefits to the Bottom Line
by Mary Jane Ferguson
If defense breaks down, the whole justice system breaks down.
Adequate funding for public defense is not only a constitutional requirement, but also plays a critical part in constructively addressing the rising costs of criminal justice.
“Defense shortcomings are the ‘elephant in the room’ to the justice imperative — if defense breaks down, the whole justice system breaks down.”1 Conversely, a strong public-defense system “facilitates a smoother operating justice system and, in so doing, allows the courts to respond effectively to growing caseloads.”2
With the cost of a 15-minute hearing estimated at $230 in superior court and $252 in district court,3 it is easy to calculate the money wasted if one of the few public defenders in the courthouse is down the hall dealing with a matter in courtroom A, while the judge, prosecutor, court reporter, bailiff, clerk, defendant, and jail personnel wait for him or her to get to the scheduled hearing in their courtroom B. More difficult to estimate but equally real is the cost to the system of overburdened defenders with little time to adequately meet their clients and prepare for trials and sentencing.
Where there is no defender or a defender who has had inadequate time to prepare for the bail hearing, courts may have little choice but to retain the defendant in already overcrowded jails.
Even as early as a pretrial bail hearing, adequately funded public defenders can help their clients and the justice system. When a defender has had adequate time to meet with a client, the defender can present relevant job, family, and community information about an individual who has been arrested and is in custody, for example, on a misdemeanor theft charge. The court is then able to effectively evaluate that defendant’s danger to the community and risk of flight. A release on personal recognizance or an affordable bail level can allow the client to retain his or her job, keep the family off assistance, and even pay taxes — instead of running up jail costs.
When there is no defender or a defender who has had inadequate time to prepare for the bail hearing, courts may have little choice but to retain the defendant in already overcrowded jails. At a daily average cost of $47.90 per jail day4 in Washington state counties, adequate public defense can translate into substantial costs for taxpayers.
“The City of Spokane bail hearings are video hearings, with the judge and prosecutor at the courtroom and the defendant at the jail. We used to have public defenders at the jail for these hearings, but because of budget cuts, we don’t have anyone there to represent the defendants,” Kathy Knox, director of the City of Spokane Public Defender, said.
“And without a defender face-to-face with the defendant, it’s virtually impossible for the judge and prosecutor to have sufficient information to assess a person’s mental health or obtain information that might serve as a basis for release or affordable bail.”
But adequate representation at bail hearings can make a proven difference. In one Baltimore study, providing improved representation over an 18-month period to nearly 4,000 lower-income defendants resulted in over two-and-a-half times as many represented defendants released on personal recognizance compared to unrepresented defendants. In addition, the improved representation resulted in two-and-a-half times more represented defendants having their bail reduced to an affordable amount compared to unrepresented defendants.5
Surveys of the Baltimore defendants also demonstrated a non-monetary result: increased respect for the justice system’s “overall fairness and confidence in assigned counsel.”6
With individual clients, public defenders and assigned counsel are in a unique position to identify the problem, counsel the client, and advocate for treatment services.
Another important area where public defenders can be effective in assisting their clients and helping to make the system work in an effective and economical way is in exploring sentencing options for their clients. “Overcrowding at the county jail is a recurring problem and courts are looking for cases where alternatives to jail are possible or a reduced sentence is appropriate,” according to Jon Komorowski, director of the Whatcom County Public Defender.
In 2006, a Washington state study reported that treatment of alcohol, drug, and mental-health disorders “can achieve roughly a 15 to 22 percent reduction in the incidence or severity of these disorders” in the short term, and society-wide “can achieve about $3.77 in benefits per dollar of treatment cost.”7
A working paper prepared for the Program in Criminal Justice Policy and Management at Harvard University emphasized the crucial role a well-prepared defender can play at sentencing to seek a “client specific disposition”:
[P]ublic opinion polls show that more Americans favor treatment and other rehabilitation programs over incarceration for non-violent offenses. Most people know or have heard that an overwhelming percentage of defendants have substance abuse and mental health problems. With individual clients, public defenders and assigned counsel are in a unique position to identify the problem, counsel the client, and advocate for treatment services.8 [footnote omitted]
“In Spokane, the city is looking at as many sentencing options as possible,” said Knox. “The city is in negotiations with the court to expand sentencing options — working with probation trying to expand their role in these options — for example, making electronic home monitoring more available. They’re also looking at day reporting and community service options.
“In addition to creating these sentence alternatives, all of these options also require defender time to research and present to the court — but the benefits can be significant both for the individual client and for the community,” she said.
Knox noted that Spokane used to have a community relicensing program for defendants facing the misdemeanor charge of driving while license suspended third degree, but the program was cut due to inadequate funding. “Over a third of our cases can be DWLS 3rd,” Knox said. “Under this program, defendants can make reasonable payments over time to pay the fine and maintain their licenses and have the charge dismissed. This program can mean the difference between defendants’ keeping their jobs and supporting their families or not. And the system benefits, because they aren’t ducking the charge with warrants running up administrative costs.”
Among programs found to provide significant dollar benefits compared to costs were cognitive-behavior therapy in prison or community; job training in the community; drug treatment in community; and adult drug courts — all of which were found to reduce crime.
In a recent study, the Washington State Institute for Public Policy examined public-policy options used in the United States which can reduce criminal-justice costs, including sentencing options (in conjunction with an ongoing study by the Sentencing Guidelines Commission); intervention programs for persons in juvenile and adult correctional systems; and prevention programs. The study concludes that if Washington could successfully implement “a moderate-to-aggressive portfolio of evidence-based options, a significant level of future prison construction can be avoided, taxpayers can save about two billion dollars, and crime rates can be reduced.”9
Among programs found to provide significant dollar benefits compared to costs were cognitive-behavioral therapy in prison or community; job training in the community; drug treatment in community; and adult drug courts — all of which were found to reduce crime. Electronic monitoring to offset jail time was also found to be financially beneficial in costing less than jail time, although no reduction in future crime was associated with it as an option.10 For juvenile offenders, program options were found to result in “especially attractive long-run economic returns.”11 Effective programs studied included an adolescent diversion project; family integrated transitions and functional family therapy on probation; and aggression replacement therapy.12
More and more defendants are mentally ill because of cutbacks over the years in those services, and we need to help courts address this reality in their sentences.
Such beneficial results can only be achieved if the defendant can be successfully placed in available programs, and such placement depends on the research and advocacy by the defendant’s public defender. Komorowski noted that Whatcom County is one of the few public defender offices which meets state standards for investigative support. “We’re fortunate to have five investigators to support our 19 lawyers,” he said. “Because of this healthy ratio of investigators to attorneys, cases can be prepared and resolved more quickly and sentencing options can be more thoroughly researched.”
The Department of Community Trade and Economic Development reported in 2003 that 14 to 20 percent of the jail populations statewide were “seriously mentally ill” and over half of the jail inmates in Seattle and Spokane tested positive for drug use.13 Getting defendants to available services can start to address the issues.
Whatcom County Public Defender has a full-time social worker on staff to assist defenders and their clients in navigating the labyrinth of DSHS services for mental-health or drug-and-alcohol treatment and to help tailor a sentence to the particular client. “More and more defendants are mentally ill because of cutbacks over the years in those services, and we need to help courts address this reality in their sentences,” Komorowski noted.
“Funding public defense adequately can make such a huge difference,” Knox emphasized. “For our clients, for the criminal justice system, and for society.”
Mary Jane Ferguson is deputy director of the Washington State Office of Public Defense and was formerly legal services manager at the Washington State Lottery and an appellate defender.
NOTES
1. Washington State Bar Association, Blue Ribbon Report on Criminal Defense (2004) at 1.
2. Papers from the Executive Session on Public Defense, John F. Kennedy School of Government, Harvard University, Bulletin #2, Fabelo, Tony, “What Policymakers Need to Know to Improve Public Defense Systems” (Dec. 2001) at 2.
3. E-mail from Yvonne Pettus, Washington State Administrative Office of the Courts, to Mary Jane Ferguson, Washington State Office of Public Defense (Feb. 25, 2005).
4. Washington State Department of Community, Trade and Economic Development, Criminal Justice in Washington State (Nov. 2004 ) at 120.
5. Colbert, Douglas L., et al, “Do Attorneys Really Matter? The Empirical and Legal Case for the Right of Counsel at Bail,” 23 Cardozo L. Rev. 1719 (2002) at 1720.
6. Id.
7. Washington State Institute for Public Policy, Aos, Steve; Mayfield, Jim; Miller, Marna; Yen, Wei, Evidence-based treatment of alcohol, drug, and mental health disorders: Potential benefits, costs, and fiscal impacts for Washington State (2006) at 1.
8. Working paper prepared for the Executive Session on Public Defense, John F. Kennedy School of Government, Harvard University, Moore, Mark H. et al, “The Best Defense is No Offense: Preventing Crime through Effective Public Defense,” Working Paper #02-07-03 (April 2002) at 8, 12.
9. Washington State Institute for Public Policy, Aos, Steve; Miller, Marna; Drake, Elizabeth, Evidence-Based Public Policy Options to Reduce Future Prison Construction, Criminal Justice Costs, and Crime Rates (Oct. 2006) at 1.
10. Id. at 9.
11. Id. at 11.
12. Id. at 9.
13. Washington State Department of Community, Trade and Economic Development, Criminal Justice in Washington State (Nov. 2004) at 120.
