Prosecutor Power #2: A Public Defender on the Urgency of Reform

I think the fact that there is a player in the system that can control the way that these laws operate to drive mass incarceration either one way or another is really empowering for people.

Outside of district attorneys themselves, there may be no figures in the criminal justice system better positioned to asses the role of prosecutors than defense attorneys. For the second episode in our New Thinking series on prosecutor power, host Matt Watkins sat down with Scott Hechinger. Hechinger is a long-time public defender and criminal justice reform advocate in New York City, and the senior staff attorney and director of policy at Brooklyn Defender Services. He offered his perspective on the role of prosecutors at key decision-points in his clients' cases, explained the importance of reforming discovery rules governing the sharing of evidence, and considered the prospects for reform in a time of increasing scrutiny of prosecutorial discretion.

The following is a transcript of the podcast:

MATTHEW WATKINS: Welcome to New Thinking from the Center for Court Innovation. I’m Matt Watkins. This is the podcast where we talk with practitioners, authors, activists—basically anyone taking innovative approaches to problems in the criminal justice system. Recently we started a new series on the power of prosecutors. We heard first from law professor John Pfaff. His book Locked In about the “true” causes of mass incarceration in many ways has framed the current focus on elected D.A.s. But no one has a more up-close perspective on prosecutors than defense attorneys. So today I’m joined by Scott Hechinger. Scott is a long-time public defender in New York City and the senior staff attorney and director of policy at Brooklyn Defender Services.

So, I thought we could just start out by trying to give people a sense of I guess the daily life of a public defender. We hear so much and read so much about the constant churn of big city courtrooms, but to the extent you can generalize, I think four out of five people who need defendants end up needing a public defender, if I've got that about right.

SCOTT HECHINGER: That sounds about right. What is a normal day like for a public defender? One of the incredible things about doing the work that we do as public defenders is that no day is ever the same. Our practice is as diverse as the client base that we represent. Of course, our clients are all unable to afford representation and unfortunately, whether by design or if this is how it's become, from certain neighborhoods and are mostly people of color.

I meet my clients at this moment of true crisis. They've been taken off the streets, they've been taken from their community, from their jobs, from people in need of care-taking, and they're facing this really momentous occasion. Most people think about that first appearance, arraignments, as this administrative necessity. But by the time that I meet my clients, they've not only already gone through the process of arrest, but the prosecution has already decided whether they're going to be charged and what they're going to be charged with and come up with a number. They're already set up for the potential of bail being set.
 
So major decisions have already been made and are about to be made that really dictate the direction, shape of the case, the ultimate, frankly, outcome of the case.

WATKINS: So the stakes are really high for your clients. And one of the larger questions I have is, how fair of fight is it in a sense between prosecutors and public defense attorneys, but as a way of getting at that larger question why don't we walk a little bit through the decision points of the process: decision points for prosecutors, decision points for your clients as well. So if we start with the charging decision, that's one that John Pfaff really focuses on obviously, this extent to which prosecutors are really acting as the gatekeepers to the system—whether to charge people, what level to charge them at. Could you talk a little bit about how that power plays itself out in the cases and the lives of your clients?

HECHINGER: The charging decision, that decision whether to let a case come in the court in the first place, and the decision on if they're going to let it come in what are you going to charge the person with, is perhaps the most monumental and determinative decision that's made in a case.

There's two different classes of charging that I think it's important for people to know: misdemeanors and felonies. Misdemeanor is low level crimes, and they're different issues, and felonies are more serious crimes. And there are different issues and impacts that kind of intersect with each of these two types of charging. 

With misdemeanors, I like to think about it more as, “should we be charging these cases at all?” The majority of misdemeanor cases are what we call quality of life crimes, or crimes of poverty they're sometimes known as. They're the most common arrests, they're the stop and frisks, they're marijuana possession, they're low-level drug possession, there's a crack pipe found on you, you were cause sleeping where you're not supposed to, that's misdemeanor trespass. You jumped the turnstile because $2.75 is actually a lot of money for the clients who I serve. That's an A-misdemeanor punishable by a year in jail, driving on a suspended license because you can't afford to pay the fines, that's a misdemeanor and so I think the decision point there is, should prosecutors be charging those cases at all especially given what we know about the overwhelming number, or disproportionate number of people of color who are getting charged.

So marijuana for example 18,000 arrests in New York City in 2016-17, and 86% were people of color. Knowing that, knowing that both the fiscal and the human costs of charging these cases couldn't prosecutors, and the answer to this is they could decide to not prosecute any of them. By doing that, they would send a strong message to the NYPD, our police forces around the country, that this is not only an arrest that's not worthwhile to be brought into court, but it's also being carried out, these arrest practices in a way that is honest face racist.

When you also get into crimes of addiction, crimes of mental health, crimes of poverty, you got to be thinking about the fact that our system, you can't deter poverty with the threat of punishment, or you can't deter poverty with threat of an arrest.

So, I think there's an opportunity for prosecutors with misdemeanors, the large class of them, to rethink bringing them into the criminal justice system to begin with. Yes there's a role to play in Albany, and legislatures around the state to decriminalize these things, but prosecutors can stop prosecuting them tomorrow.

When it comes to felonies it's less of a question of whether to charge, it's more of a question of what we should be charging. So, I'll give you an example, and this ties into the conversation around violence right. If you think about burglary, people tend to think about really violent, intense, crimes, home invasions, the majority of them are not that, the majority are people going into lobbies who are homeless, who are in need, and stealing packages, and now I'm not condoning that behavior but is that a C-violent felony, is that a violent felony where the mandatory minimum is 3 1/2? 

When a prosecutor makes a decision to charge a case at the beginning, three things happen. Number one, it's far more likely the higher the felony and whether it's a felony at all that bail will be set. Number two, depending on the level of the felony, mandatory minimums will kick in. Which we know drives case outcomes, at least as much as pretrial detention if not more. The fear of going to trial and facing that mandatory minimum. Three, it also takes away what little discretion the judges at this point already have, to overrule the prosecutors' office and order treatment over their objection.

And so, all of these decisions are being made before I've even met my client. 
     
WATKINS: So, to what extent do you think prosecutors are simply, when it comes to making these charging decisions, simply applying the law, calling balls and strikes to use a famous metaphor? Or do you see them as their discretion is such that they're in a sense making the law every time?

HECHINGER: My sense is that there is a practice in most DA offices, to charge the top crime that is possible under the facts alleged. The thought is, lets charge the max, and we can work our way backwards if the facts play out differently, or if we have some more time to kind of think through this. What we see though is that in the most common felony cases, we know as practitioners who practice all the time how these cases play out. Only 16% of violent felonies, that are charged as violent felonies in New York, ultimately end in prison. 

Most of the robberies that come through my desk, are young kids stealing other kids' cell phones, bullying behavior that elsewhere you might get a suspension. They're charged as violent felonies.
    
And if prosecutors just took a slightly different approach and really thought critically about the fact that those cases, not only are not violent but they often, more often than not, end in misdemeanors, or wind up getting dismissed that initial decision to charge which then has an impact on bail, would be very different, it would have a big impact on the course of cases, and administration of justice overall.

WATKINS: And then, so to pick up on bail, which I guess is the next decision point along the line here. Post major decision point, post charging. Obviously a huge amount of focus and discussion right now on bail reform and lots of actual reforms, being announced or promised. But what are you seeing on the ground in terms of bail decisions as a public defender?

HECHINGER: So, it's kind of amazing that bail has become the hot button issue it has been. Amazing in the sense that no one was talking about it 5 years ago, 6 years ago, and through public attention, through newspaper articles, through unfortunately really major tragedies, like the tragedy of Kalief Browder it's become this issue that everyone's talking about. What's less known and what's less talked about is the role that prosecutors have in whether bail's set at all.

Most people think, and it's true that judges have the power and they do, they're the ones who ultimately set, decide whether to set bail or not. But prosecutors do decide whether or not to ask for bail. Or consent to release, or consent to release with supervised release. They also have the discretion about how much bail to ask for. 

What tends to happen on the ground, is that in the time it takes me to read just the bare bones criminal court complaint, and if the person has been arrested before their criminal record, the DA has already made, the DA and the arraignments has already made their decision, within 4-5 minutes whether bail is going to be set.

The bail statute is more than just the charge, the seriousness of the charge and their criminal record. It's about their life circumstances, it's about ability to pay, it's about not just with the charges, but the strength of the evidence, which frankly no one knows at the start of case.

These are all considerations that the judge should take into account, but these are considerations that also prosecutors could take into account. And so I go back and I meet my clients, and I find out a more complicated story always. And we tell that story but what we find is, that the prosecutors ask for bail, is what determines whether bail is going to be set, occasionally, I won't even say occasionally, frequently judges do overrule the prosecutor’s bail request, but on felonies especially, if the prosecutor asks for high bail that's really, sets the tone for that particular bail application.

So in terms of reality versus promises on top, in Brooklyn we're seeing a difference. DA Gonzalez back in April 2017 said that he was going to stop asking for bail in misdemeanors or in cases where they weren't going to be seeking jail time. And frankly, we are seeing a difference. They are consenting to release in more cases. We want to see that get to 0, we don't think that anyone at a baseline should be jailed for their inability to pay a sum of money. No one should be in jail because they're too poor to buy their freedom. And that’s the reality of what we’re seeing.

So on the ground there's room for hope, but I also think there's a lot of room for prosecutors to think more critically. Not just about misdemeanors, but also about, and not just about non violent felonies and drug cases, but also about more serious felonies, including violent ones.

WATKINS: Does it happen often that people plead guilty to something they might prefer contesting simply because they know they're not going to be able to pay the bail, they want to avoid incarceration pretrial, I mean I'm just wondering to the extent that happens how that must feel as a public defender?

HECHINGER: It hurts as a public defender I can tell you, I was going to say it hurts more as a client, but in that moment my clients are not thinking about the long term consequences, which are going to hit them when they plead guilty, and so I actually want to, there's two different ways that bail influences guilty pleas. Number one we see a lot of guilty pleas on that day of arraignment. Facing the prospect of bail being set, so bail hasn't even been set yet someones charged with the crime, low level misdemeanor and they're given an offer of time served. And they might have been stopped and frisked unconstitutionally, they might be innocent.

But when they're given the opportunity to go home, versus yeah suck it up to maybe something they didn't do or may not be able to challenge that unconstitutional stop and search, it's no question. They need to get home, they need to get home to their jobs, their kids, to their elderly parents, they need to keep their housing. A lot of our clients, most of our clients live in affordable housing, and if they don't show up, or family shelters if they don't show up they'll lose their place in their housing. It's a no brainer, so yes the clients bristle as they get those questions, are you pleading guilty because you're in fact guilty, has anyone forced into plead guilty. But it's really a no brainer for them.

Even if though, they were released and this gets back to charging, even if bail wasn't even a part of the equation it's kind of too late at the point, once they're in the system. Because the thought of having to come back to court to contest that case, even if they could, is punishment in and of itself, our clients are busy they've got a lot of stuff going on, and the process of coming to court is a horrific one. You have to take a whole day off from work. You're packed in a courtroom, with unfortunately mostly people of color, you're not even allowed to even read, so you have to watch this process of people...

WATKINS: ...the process is the punishment.

HECHINGER: The process is the punishment of people going up.

So yes, we see people plead guilty on that same day.

And once someone takes that plea, there are also legal barriers erected that make it impossible for them to even sue for false arrest for malicious prosecution. And so, in that process of prosecutors allowing the case to come through the system, it has enormous consequences to the individual, and also just the cycle of arrests and prosecutions.

Obviously once someone's actually locked up on bail that they can't afford, every day that they're in adds to that desire to get out.

Think about a time that you've ever been home sick your 13 years old, you're in camp, and just having that date certain, knowing you're going home on a certain date. There's a lot of power in that and for someone who's facing a mandatory minimum getting that offer of a year and a half, even if it means them staying in for an additional 6 months there's some certainty in that, and that also encourages people to plead guilty as well.

WATKINS: So, I think my master plan is kind of working here and we are managing to start to fill in the picture of just how fair kind of adversarial contest it is between prosecutors and defense attorneys or public defenders in this instance. A major issue in that question of the adversarial relationship is this question of discovery. Basically how much and when are prosecutors obliged to hand over evidence to the defense. This is again, another area where there's been a lot of focus, reforms announced. Chief judge New York State Janet DiFiore made it a priority of her state of the judiciary just recently, but how do you see that issue, playing out again, in your cases for your clients, and how is it changing if at all?

HECHINGER: New York State this so-called progressive bastion has one of the four worst most unjust discovery laws in the entire country. Under New York law, prosecutors can withhold the most critical evidence until the day that trial starts. So, in the few cases that do go to trial, it's trial by ambush. How can you prepare for trial if you don't have the evidence, and so that leads ultimately to wrongful convictions, it leads to people going to trial, thinking they have a case, and ultimately getting convicted. The biggest impact of the fact that defense attorneys, and defendants—our clients—don't get discovery, is that they can't make informed decisions up front. And decide whether they're going to risk going to trial or plea. 

And that fear of the unknown combined with the risk of going to trial with mandatory minimums which hearken back all the way just to the charging decision, plus pretrial detention creates this perfect combination of forces that make even people who are innocent plead guilty. 

HECHINGER: The reality is that our adversarial system is based upon this idea, that through mutual testing of the evidence, the truth can come out. And so you mentioned Janet DiFiore her, she did say that discovery was a priority but she just simply ordered the prosecution to do what they were already doing, which is to turn over Brady material.

It needs to be more than that. We should be getting as much discovery and evidence as prosecutors have as early as possible. It doesn't just help the innocent as we've been talking about, it also helps people who may of committed the crimes make more informed decisions. It also helps me as a public defender, negotiate with prosecutors for fairer outcomes.    
    
There are these things that were set up, the tough on crime decades of the 70s, 80s, and 90. At the same time that everything was being criminalized and mandatory minimums were kicking in, discovery laws were changing. All these laws came into force that had the effect of transitioning power away from judges, discretion and power away from judges, and putting it, pretty much solely into the hands of prosecutors, at the expense of, I think, justice, but also the expense of fairness and balance between defendant and prosecutor. 
    
WATKINS: We've already touched on this a little bit but let’s take up this shocking number that 95 percent of guilty pleas result from plea bargains, so very far from the sort of Law & Order concept, the TV show, about how justice is meted out. Plea bargains are often referred to us as kind of black box process, but as a public defender you are inside that black box, so to speak.
     
The conversations, the plea bargaining process is the way that I see it is a conversation, it's a conversation, this is the critical point that is informed by these forces, that are out of the defendant’s control and that are in the prosecutor’s control. Charging, so what is that mandatory minimum? John Pfaff talked about the fact that we have no way of knowing how often mandatory minimums are threatened as part of the plea bargaining process. I can tell you that it's in 100 percent of cases, that does not mean that a prosecutor is very rarely, prosecutors going to say, "you know how much time this person's facing if you don't take our plea," it’s understood, it is the, forget the elephant in the room, it is the entire room. 

That is the reality that we're operating in. And so, we're having this discussion but all sides know, if we go to trial that's an enormous risk to take. Number two we're having this conversation while in many cases, especially in the violent felonies, that person is sitting in jail subject to horrific violence, away from his family, away from jobs, his bills are piling up, his family is having a tough time visiting him because he's sitting on Rikers Island, so this enormous pressure to just make the pain go away. So, there's this conversation that's happening that can sometimes be productive, but at the end of the day, there's so many forces that are pushing that client to just make the pain end, whether they're guilty, whether they're innocent, whether they could potentially get a better plea if they would have been out.

So, that process is an attempt to have an informed conversation about what we're trying to accomplish here, but really just infused by pressures that work in favor of prosecutors and in favor of more convictions and greater jail time.

WATKINS: So when you're having these conversations, these negotiations with prosecutors, by which I mean like the line district attorneys, the line prosecutors, do you have a sense that they're operating with different conception of justice than you're operating from? I mean are we talking about people who are just reflexively tough on crime? No, my sense is that it's not that, so is it an issue of the kind of culture of prosecution?

HECHINGER: Yeah, I'm shaking my head. It's hard to say I'm not inside their heads, I'm not a prosecutor. I do feel like at least the newer class, so the newer class of DA's and assistant district attorney's, prosecutors, folks that have been coming in in the last 10 years, especially in New York, they're progressive. And I feel like I can have a really informed conversation with them.

Some of the challenge comes, and this is throughout the country, when they need to get that approval for leniency, and that approval has to come from folks who have been there for longer who are more tough on crime and the issue about where does that come from and where does that office culture change, because like you said it's really the line prosecutors that are making those thousands of decisions every day, it's the top prosecutor that's making that one decision that could have an impact on those thousands of positions.

How do you change that? And I think, it takes a lot of courage, and that courage comes from I think a growing sense right now, and is able to come from, a growing sense now that people on all sides of the political spectrum believe that mass incarceration is a major problem. They believe we are spending far too much on locking up people and far too little on actually addressing the root causes. 

HECHINGER: So I think it’s really important for folks to be able to send a message to prosecutors, the top prosecutors, that we're not only in support of smarter policies, from charging to bail requests to evidence policies to mandatory minimums to plea deals, to alternatives to incarceration to mercy and redemption. But we're going to stand behind you, even if, in that rare case that something goes wrong.

WATKINS: So when it comes to this idea to people more generally paying a lot more attention and understanding the stakes at what's going on with prosecutors’ decisions and the criminal justice system, it does seem like that is happening right now, to a quite remarkable degree, I feel like almost every day there's a new DA race that's in play that nobody was expecting to be in play. Do you share my assessment of this sort of remarkable moment, do you find it exciting, do you find it hopeful?

HECHINGER: I find it exciting and hopeful, I'm not banking everything on it, it's one piece of it, it is a large piece of it. I'm hopeful just at a baseline by the fact that people are focusing on the process in court as kind of a critical piece to this mass incarceration problem. As John said, people tend to focus on the flashy, the sexy stuff, the police and police violence and stop and frisk, and judicial killings at the front end and the back end on length of prison time and parole and probation and state supervision. But what happens in the middle is really the most important stuff, it's what both reinforces the beginning and drives what happens at the end.

And so, just as a baseline the fact that people are talking about prosecutors and the power that they have and starting to pay attention it's an extremely exciting moment, and how do we get here? It's because the space has been created by crime rates going down, so crime, the fear of crime receding from the base and giving elected officials like prosecutors more room to be courageous and to talk about soft on crime policies without being so afraid of political suicide. It also comes from people starting to pay attention to more complex aspects of the system. I think that started with bail, bail was once seen as a really kind of wonky, lawyers-only-know issue, and now it’s something that people can really wrap their heads around.

And I think prosecutor power is really the same. When you think about charging it sounds really technical, most people previously, and probably still, don't think that it’s a  big part of the process and know how important it is, but when you break it down and explain it, it becomes tangible. And people feel like they can actually make a difference. With bail the same thing, with discovery, every time I change the word discovery to evidence, and I talk about the role that prosecutors have, it's this immediate head shake, “so what are we doing, how can we change this, and what's the push back?” And I think the fact that there is a player in the system, that really can control the way that these laws operate to drive mass incarceration, either one way or another, is really empowering for people it's not again the be-all-end-all, it's not changing the law, it's not decriminalization, it’s not taking away mandatory minimums. 

But there is a sense of both, a targeted person who can actually do something about it and can do it relatively quickly like we're saying in Philadelphia. And so, I am not only excited about it but I'm excited by the fact that we're talking about it and I'm excited about the excitement that its generated across the country. 

WATKINS: Well, Scott, it’s very clear that you have a very demanding and, to this city, very important job and I really appreciate you taking the time to come in and talk with me today.

HECHINGER: I appreciate you having me. Thanks so much.

WATKINS: I’ve been speaking with Scott Hechinger. Scott is the senior staff attorney and director of policy at Brooklyn Defender Services. This has been the second episode in our series on prosecutors with more to come. You can hear the first one with John Pfaff that we’ve been referencing throughout this episode at our website, or better yet by subscribing to New Thinking wherever you get your podcasts. Technical support today provided by Bill Harkins. Our theme music is by Michael Aaron at quivernyc.com. This has been New Thinking from the Center for Court Innovation. I’m Matt Watkins. Thanks for listening.