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Well, we've hit on some of these challenges.

Well, we've hit on some of these challenges, what would you say

are the biggest challenges you'd face as a public defender?

>> So workloads I think is probably the number one challenge.

If a public defender does not have enough time

to put the work into providing effective representation to a client,

there's all kinds of negative impacts to that.

Number one, there's who are we, who's being convicted,

who's actually innocent, right?

You can't know that if you're a lawyer who doesn't have enough time to

investigate the case, to form a meaningful relationship with your client to get

the information you need, to pursue leads.

And so that's number one.

I think that money bail is probably a second big issue that

has interplay with the ability of lawyers

to spend the amount of time they need on the case representing a client.

Again, it goes back to the scenario I explained earlier.

If a client is in jail, there is a lot pressure on that person.

That person needs to get out of custody.

And so no matter what their rights are, if a lawyer comes to them and

says, look, I probably need to spend 20 to 30 hours investigating this case.

It's going to take me six months to get the records that I need.

We need to hire experts to challenge the state's DNA evidence,

or to challenge the eye witness identification, or to challenge any other

forensic evidence that might exist in the case that seems questionable.

That person, if they're in jail, is not going to want to have to wait.

That's going to ruin their life, potentially.

And so pretrial justice issues.

Keeping people in custody pretrial who are presumed innocent

creates a huge problem within the system.

And I think that's an area that is really undergoing reform at this time.

Both locally and nationally, with agencies like the MacArthur Foundation and

the Arnold Foundation, really trying to look at pretrial risk assessment

tools as an alternative to keeping people in jail based upon whether or

not they have money to pay for a bail bondsman to get them out.

>> Can you just explain a little bit about how money bail works?

And how it emerged as a practice?

>> Sure, there's scholarly articles out there that talk about the beginnings

of money bail which have their origins in England prior to our creation system here.

So there is a history there, and it's been around forever, for

as long as our legal system has existed.

The way it current works is that if I'm arrested on a criminal charge,

and I go see a commissioner who says there is

probable cause to believe I committed a crime.

What the judge is supposed to do is decide whether or

not I can be released from custody without having to pay any money to get out.

And we call that being released on your own recognizance.

What, unfortunately, happens is that very few commissioners actually go there first.

And instead the practices developed is that an amount of money is set as

what's called a secured bond, it's like an insurance policy.

And so $5,000 bond is set, and I might be charged with driving under the influence.

The commissioner decides to set a $5,000 bond to ensure my presence in court.

And that's the purpose of bond primarily, is to make sure I come back to court.

So, what ensures me coming back to court is I either put $5,000 cash deposit

with the clerk's office, and then I get out.

And at the end of the case, assuming I made all my court appearances,

I will get my cash deposit back minus any court costs I might owe.

Not surprisingly,

not a lot of people have $5,000 cash to just deposit with the clerk.

And so the alternative is bail bond companies.

You can pay a bail bond company 10% of the bail that's set.

And that's their fee for ensuring that you come back to court.

So that's for a $5,000 bond, I can pay $500 to a bail bondsmen.

They will get me out of custody, and they're essentially agreeing that

if I don't come back to court, they're going to pay the $5,000, the full amount,

into the clerk's office to insure my presence.

So it's kind of like, again, it's an insurance policy.

They're taking a risk and I'll come back to court.

They get paid $500, and they're hoping that they make a good risk.

And at the end of the case, it's all said and done.

They keep their $500, and they never have to pay the $5,000.

And so for me, if I'm poor and

I don't have $500 to pay a bail bondsman, then I'm going to be stuck in jail.

And that's the reality for a lot of our clients is that they don't even

have the 10% premium to be able to pay a bonding company.

>> And if they do have it, they're going to lose it?

>> Yes, they will never get that money back,

that's the fee that the bonding company charges them to take the risk on them.

That it's kind of like gambling a little bit, right?

I'm going to take your $500, I'm going to bet, you're going to come back to court.

And if you don't come back to court, I'm going to hunt you down, and get you

into custody, and bring you back to court so that I don't have to pay the $5,000.

And there have recently been, in the last few years,

several legal challenges mounted to money bail.

And they've been successful so far,

arguing that it's an equal protection violation.

And it's that kind of thing exactly that creates

the perception of, and the reality of two criminal justice systems in this country.

One that works for people with money, and one that doesn't work for people without

money, or at least it works in a different way for people without money.

And so money bail is one of the biggest challenges that public defenders face for

their clients, in trying to represent their clients well.

I think the third challenge that I would say is plea bargains.

And the stiff, the trial tax, as many would call it, which is that

the punishments that currently exist for so many violations of the law are so

severe that many of our clients are afraid to have trials,

because the risk involved to them if they go to trial and they are convicted is so

much, it's so severe that it will be life-altering.

And so we've seen an increase in the number of clients who plead guilty, again,

either because they can't get out of jail and it's their quickest way.

Or they plead guilty, because they're afraid of the risk involved with asserting

their innocence and going to trial, and the potential of being convicted and

receiving a long prison sentence jail time, and

all of the collateral consequences that go along with a conviction.

Losing the right to vote, maybe not being able to get a job,

maybe not being able to get student loans, or any other public assistance.

There's just so many collateral consequences today for

a criminal conviction that didn't exist 40 years ago.

And so that's another challenge that our clients face.

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Dawn Deaner: “Biggest Challenges in Public Defense”

Justice, Mercy and Mass Incarceration

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