It was forever and a day ago that the biggest problem facing down our populous and progressive Montgomery County, Pennsylvania was the dismissal of its chief public defender. Over the past two months, another truth this pandemic has revealed about our society is that at every level -- federal, state, and local -- there are just too many people packed into jail. This much I know: MontCo PA did not break the criminal justice system.
My own legal career now spans almost two decades, and recently I had the honor for just under a year to work as a public defender. The experience brought me back to the reasons I became a lawyer in the first place. Public Defenders are incredibly hardworking and incredibly underappreciated and underpaid. They are smart, resourceful, compassionate and fearless. They are literally the best of us.
Imagine a battle every day against a prosecutor driving a heavily equipped tank, while your back is up against the wall of the entire criminal justice system, and you’re given only an unarmored Humvee to try to maneuver your client out of trouble. The system is tilted against you in terms of personnel (usually 2:1), budget (at least 2:1), institutional inertia, and the prison-industrial complex.
While it is true that “All men are created equal,” it has never been true that all people have been treated equally. In 21st century America our proclaimed ideal of treating people as “Innocent until proven guilty” feels like a quaint custom more honored in the breach. Into this precarious position enters the public defender.
Although we never worked together professionally, I spoke several times with our former Public Defender and thought highly of his work and goals for reform. The only trouble I see public defenders making is Good Trouble. If your job is to safeguard your client’s life, you don’t want someone who rolls over in the face of injustice.
Our District Attorney, Kevin Steele, is not just good, he’s better than most, and we’re lucky to have him in Montgomery County. He’s a dogged prosecutor and a master practitioner of his craft, and he seems compassionate and sincere in his quest for fairness. Despite the political and professional risk, he earned a conviction against Bill Cosby under difficult circumstances.
Where do judges fit in? The thing about judges is, once they’ve made up their mind or made a ruling, it’s an incredibly scary proposition for an attorney to tell a judge that they’re wrong. Your professional career is in their hands. Yet, there are circumstances where there is an obligation to do just that. Judges aren’t perfect, they have bad days or bad weeks like the rest of us. They are human after all, and humans make mistakes.
We know that the cash bail system is broken. We know that too many people are incarcerated. We know that too many people are warehoused, and any notion of rehabilitation in prison is a joke. We know that there is an element of racism in the system that does not produce equal results for equal crimes.
The next step along the path to criminal justice reform isn’t just to have a politically independent Public Defender’s Office. The big step needed for progress is to have three party (tripartite) negotiations between the defenders, prosecutors and judges. Defenders need to be on equal footing, and we should expect prosecutors and judges quite naturally to resist this loss of leverage. But citizens are speaking up, our society is changing, and voters demand action. For our wobbly justice system to be balanced and stand tall, it needs three co-equal pillars.
Think this is easy? Ask Larry Krasner in Philadelphia. Perhaps it’s not fair to call it a failed experiment, but it’s been the bumpiest of trails when the prosecutor’s office gets turned over to a defense attorney. Again, the balance is tricky.
Beware the charismatic roadside preacher. A day will come when someone will say, let’s grant everyone clemency and pardons, and that will solve all the problems. Don’t believe them. A day will come when someone will say, let’s legalize marijuana and decriminalize drugs and that will solve all the problems. Don’t believe them. A day will come when someone will say I have been in this fight for justice reform since the beginning. The beginning of what? Time? Okay then, what about victim’s rights? Anyone offering simple solutions or armchair criticisms to these incredibly complex issues is likely a political sniper and they should be disregarded as featherweight opportunists.
Justice is a journey, not a destination. We just have to keep taking steps on the path. Montgomery County didn’t break the criminal justice system, but I believe we’ll be a trailblazer for where it’s going next.