Robin Steinberg is the Executive Director of Bronx Defenders, a holistic defense organization she founded in 1997.
Do you think public defenders have a unique perspective on failure?
Absolutely. Public defenders analyze failure all the time because when we fail as individual practitioners, our clients go to prison. You know that someone is sitting in a cage as a result of your loss at trial or inability to get a better plea deal. And those failures are burned in your brain much more so than the successes. It’s natural to be reflective when the outcome is so painful. Oddly enough, our clients often don’t think that we have failed them when we lose their case. They often have a different definition of failure.
How do your clients define failure, and how has that understanding impacted your work?
Public defenders are trained to believe that liberty is always the ultimate goal of their clients. They think that keeping their client out of jail should be their top priority. Through focus groups and client surveys, though, we’ve learned that often, our clients have other priorities in their lives that may even trump their freedom. For example, a client might face the decision of losing her kids or going to jail, and keeping her kids is her priority. In those situations, our roles as advocates shift from only a criminal justice focus to other aspects of our clients’ lives that can be more important to them and their families. Over the years, we’ve adapted our entire public defender service model to account for this. Of our 130 advocates, only 38 do criminal defense exclusively. Today, the majority of our staff are advocates in other legal realms such as housing, immigration and family law as well as social work and parent advocacy.
Our other – perhaps counterintuitive - finding about how clients’ define failure and success is that clients are much more satisfied when they feel that the process allowed them to tell their story and that someone zealously and compassionately advocated on their behalf, regardless of the case outcome. Again, we assume that a guilty verdict is the ultimate failure, but clients don’t see it that way. And whether or not a client goes to jail or not does not determine their level of satisfaction with the advocacy we provided them. Instead, clients report satisfaction when their advocates fought hard on their behalf, respected their choices and they had a fair hearing in the courtroom. So if you were to only look at guilty pleas and guilty verdicts, you’d get one perspective of our failure rate. But in fact, 93 percent of our clients were satisfied with our services, regardless of their case’s disposition, because of how they were treated. It’s incredible, almost unbelievable, but understanding our clients’ definition of success is essential to being a good public defender and adds a more nuanced view of what “failure” looks like in public defense.
Are there other aspects of criminal justice that have counterintuitive definitions of failure or are tricky to define in the first place?
A huge example is recidivism. We haven’t yet looked at the impact we’ve had on recidivism because it’s hard to know how to define it. Does getting arrested for being in the park after dark count? Technically, yes. It’s a re-arrest. But it doesn’t give us the same information as someone who gets rearrested for a serious offense. Also, it doesn’t factor in the social, political and economic context. For example, race and class likely determine whether or not you will get arrested for being in a park after dark, possessing marijuana, or trespassing. Policing in poor communities of color is radically different than in affluent white communities. This reality skews the recidivism data. It’s a very complicated issue, but one that we’re starting to look at more with the hope that we can redefine what recidivism means.
So who should define success and failure?
The community should. My primary criticism of many problem-solving courts is that they continue to suck resources into a criminal justice system that is, all too often, detached from the community’s wishes and control rather than reinvest those same resources into the community itself. Communities need resource centers that will genuinely listen to the needs of the client, understand the context of criminal conduct and policing in that community and then create services that are genuinely responsive to the needs and realities of the clients. It’s not impossible to have a court do this, but there are systemic obstacles.
You are very candid about the role of failure in your work. How is your approach to failure woven into the culture at Bronx Defenders?
Our organization is unusually committed to data-driven courses of action. When The Bronx Defenders first opened, we were mainly just trying to develop credibility as public defenders. But once we had that, we got strategic about data. When you’re data-driven, you have to be prepared to talk about failure. For example, several years ago we surveyed our clients whose cases were disposed of at arraignment. We learned that our attorneys were failing to give their business cards to those clients, which effectively cut them off from the range of other services our office provides. We were stunned by that finding, but only by collecting data were we able to catch it and fix it.
As a manager, what would you say is the biggest failure trap that you have faced?
The biggest failure trap I’ve dealt with is mission creep – taking on projects that are outside the organization’s mission and expertise. In a community like the Bronx, the needs run so deep and so wide that there are endless opportunities to serve. I became a public defender and opened The Bronx Defenders because I wanted to help underserved communities, so it’s easy to want to meet every need. But when I give in to that and go too far off mission, that’s when things tend to fail. They’re simply not sustainable. The funding isn’t secure, the staff isn’t committed, and we don’t have the expertise to do a good job at it. It’s important to first assess what resources are available already in the community and assess how you might add to that in a meaningful way. I’ve gotten better at stepping back and asking: Is this something that we can do better than anyone else? If the answer is no, I try to resist taking it on.
Can you think of an example in which a project failed because of the above failure trap?
A great example is the youth programs that we used to run out of our office for teenagers. When we first opened, the community told us, in no uncertain terms, that there was a dire need for afterschool youth programming. In response, we created a youth debate program that took participant referrals from local Bronx schools to be trained by our attorneys. We thought it was a great idea. But what we soon realized was that the schools were referring students who already had good support networks, access to resources and engaged families. The program didn’t really target the youth population who needed us most. So we created a second program called PRYDE that was geared to “high-risk” kids with serious needs. Many were gang-involved, out of school, and had complicated family situations. It didn’t take long to realize that the projects were failing. First, we learned that the debate students were intimidated by many of the PRYDE participants; the “high-risk” kids were the kids that disrupted the success and experience of the debate participants, both at our office and at school. The mere existence of the PRYDE program was failing our debate students. We decided to move the debate program back to the referral schools, but that didn’t solve everything. We then realized that we were completely ill equipped to effectively and productively work with the kids with serious needs and problems outside the context of public defense work. While we had the expertise to teach debate to high-achievers, our staff members didn’t have the skills or resources to adequately address the needs of high-risk kids. This became painfully apparent when the PRYDE students started asking if they could sleep at our office when staying at home was impossible or there was a crisis that left them effectively homeless. We were in over our heads. The programs were failing and more importantly, we were failing the kids that we set out to help. In the end, it was heartbreaking to get rid of both programs. Having young people around had enlivened the office, brought heart to the staff, and was great for public relations, but it simply wasn’t consistent with our mission and we didn’t have the expertise for it. Having learned that lesson, we now have a much more manageable youth arts program that partners our staff with local elementary students with whom we develop long-term relationships in their own schools.
So sometimes new ideas fail because it was difficult to anticipate their downfall. Are there projects you’ve initiated that failed despite the best-laid plans?
A good example is the Freedom Fund, an idea born at Bronx Defenders that has since been transferred to a separate non-profit entity. The idea aimed to address the problem that many low-income defendants will plead guilty simply to avoid being held in on bail. Even when the bail amount is “nominal” – $250 or $500 – poor defendants can’t afford bail, so they must choose between fighting their case from jail or pleading guilty and going home. So we helped create a separate organization that would provide small bail amounts for those defendants. We received extensive advice before we did so, making sure that we anticipated any pitfalls. The program launched and ran smoothly without issue for about a year and a half. But when one particular judge learned about it, he fought viciously to shut it down. After holding a surety hearing, the judge ruled that the bail fund was invalid. The fund was suspended. When I think back, I wonder if I could have done more to anticipate that setback by getting the bench on board ahead of time, but I’m not sure there was any way to avoid a powerful critic from single-handedly stopping the project in its tracks. Fortunately, I think the Freedom Fund will reemerge with a little more fine-tuning and will be able to offer resources to eligible clients who can’t make bail because they are too poor.
Non-profits have many constituents to keep satisfied. Are there particular projects that have been difficult to manage results in a way that satisfies the project’s funders?
We’ve been lucky with our grant-funded projects. We’ve been careful about defining our deliverables so we can fulfill our contracts and don’t have to report failure to our foundation funders. One related issue we are still figuring out though is how to define failure and success with our Family Court project. We received a contract in response to an RFP from the city that currently funds over 30 advocates in family court. It’s a big undertaking, particularly because success will require a change in the entire legal culture around Article 10 proceedings. The data hasn’t come in yet about the project’s effects. I hope we’ll be able to say that we’ve been able to help return kids to their families sooner than the previous system, but it’s a long-term strategy. We have to wait and see.
Beyond public defense, are there any other types of failures in criminal justice that intersect with your work?
I think the New York City policing strategy is an abominable failure. It’s a shocking misuse of resources. Police spend the majority of their time arresting people for non-violent minor offenses, and what’s worse, they don’t do so fairly. Reasonable minds can debate whether or not “quality of life” policing strategies are effective or not. But what isn’t debatable is the fact that this policing strategy is used in poor communities of color resulting in tens of thousands of young African American and Latino residents being hauled into the criminal justice system with devastating results. Poor people of color are being arrested for offenses, like marijuana possession, in huge numbers across the City while affluent white residents of the City, who engage in identical conduct (and research indicates that whites use and possess marijuana at higher rates in New York City than people of color) are left undisturbed by the police. Another good example is ACS, New York City’s child welfare agency, which falls outside of the scope of criminal justice, but is very much related. The system is designed in a way that failure is inevitable. The confounding premise is that the same agency that has the authority to take your children away is the same one that you should confide in about the services you need. If you ask a struggling parent about their drug use, how can we expect them to be truthful about the treatment services they need when that same honesty could cause them to lose their kids? It’s an impossible line to walk and it doesn’t make any sense.
In summary, what do you think about the idea of bringing ‘failure’ into the discourse of the criminal justice system?
I think it’s a fabulous idea. In general, nobody likes to talk about failure. We spend so much time trying to focus on our success, always running after funding and the next best idea. It’s hard to take time to reflect, but it’s essential.