Every U.S. citizen has a right to counsel guaranteed by the Sixth Amendment, but, in practice, this promise is too often unfulfilled. Public defender systems are often overloaded and underfunded, while literally countless people can languish for weeks in jail before they get a lawyer or see a judge.
The Deason Criminal Justice Reform Center at Southern Methodist University is working to understand how this can be the case and provide a blueprint for how to achieve change. Deason is conducting qualitative and quantitative research on the earliest stages of the criminal process, something that can determine the outcome of a case but is often not well understood. This week, the Center released Ending Injustice: Solving the Initial Appearance Crisis, a report that outlines a crisis in post-arrest criminal procedure and proposes how to reform it.
Arnold Ventures sat down with Pamela Metzger, inaugural director of the Deason Criminal Justice Reform Center, and Andrew Davies, director of research, to discuss public defense and Deason’s research. This interview is part of a series highlighting the important work being done by grantees within Arnold Ventures' recently launched public defense portfolio.
Editor’s note: this interview has been edited for clarity and length.
Deason conducts research across a variety of criminal justice reform topics. Why did you decide to choose access to right to counsel and public defense as one of the places you really wanted to focus on?
Looking around, you can see center after center devoted to policing or studying the corrections system or even specific types of criminal involvement. Yet, there was no one who thought that public defense and the right the council mattered enough to create a university-based research center. There wasn't anybody concentrating on what's really a foundational promise that the constitution makes on what our criminal legal system will look like, which is the right to counsel. So, I said, “That's what we're going to do.”
Why do you think public defense is not a central issue to kind of the larger criminal justice reform space?
I think it has a lot to do with the narratives we tell about criminal justice. The fiction that somehow once you're arrested, a lawyer magically appears, and the criminal legal system does its job the way we learned about it in a high school civics class. It makes us think that the matter’s already taken care of.
We also forget that public defense as a national institution is very new. Policing has a really long history, prosecution has a really long history. Gideon v. Wainwright, which guaranteed a right to counsel for those accused of a crime, wasn’t decided until 1963. And the infrastructure of public defense and the symbolic understanding of public defense is still relatively new. Public defenders are, by and large, the enforcers of the fourth, fifth, sixth and eighth amendments to the United States Constitution, but they are overlooked.
I think there are also social scientific reasons why this is sometimes considered a low-visibility area. It doesn't have the kind of high-profile association with public interest that something like policing does, which is ironic because public defenders are law enforcers. Public defenders are the only people in the courtroom who have a completely unadulterated obligation to serve the person who is the defendant.
What we are aiming to do is build a basis of evidence, which will allow us to say for the first time that public defenders vary in the standards of services that they can provide. A lot of them are so hamstrung by funding problems that they often deliver pretty bad services. However, when those services are better, when people have better access to their lawyers, and their lawyers advocate for them more effectively, that makes a difference.
What have you identified as the most critical gaps in our knowledge that need to be bridged in this area?
Some of the most pressing problems we have are descriptive in research needs. It's very hard to fix a problem if you don't know the size of it or the contours of it. For example, we know that there are lots of places in Texas where 0%, none of the people charged with misdemeanor crimes, use appointed counsel services. It's not because they're all rich. It's not because they all have access to private counsel. It's because something is going on in those communities or in those courtrooms. And whatever it is, it is defeating a core procedural right that the framers envisioned. Moreover, nobody can tell you how many people there are in this country who are entitled to a lawyer and don't currently have one. We’re really very focused on trying to understand the lived experience of people who aren't getting counsel and what we can do to improve that.
And we’re looking at why some places succeed and some places fail. We want to provide advice to governments and policymakers and decision makers around the country about how to do this service properly. The deeper we dig into this, the more that we find out about how it is perfectly possible with some serious sort of thought, planning, and commitment to accomplish the promise of the Sixth Amendment.
Tell me about Deason’s latest report on the initial appearance problem. How is it possible for a person to spend weeks or months in jail before they even go before a judge?
There are multiple layers of failure. There are issues with human error and a lack of accountability. We write about the case of a man named Rudy Rivera, who spent 355 days in solitary confinement in a federal private prison, where he was waiting for an initial appearance before a judge. Another part of it is a failure of imagination and a failure of resources. In a lot of places, particularly rural communities, it's become routine for people to wait 10 days or more for an initial appearance. It would help if the Supreme Court had ever articulated a set of standards about initial appearance, but it hasn't. And so, states are kind of left to their own to experiment.
But where we really see that we can help is in identifying weak points in these systems — places where there are structural fixes. For example, having mandated reporting if people are in jail more than 24 hours without having had a court appearance would solve an enormous amount of the problem.
What's so exciting about this project that we've done with AV’s support is that we are taking our research and going to go out into communities to say, “We can help you figure out how to do this better. We can help you honor the promise of the Constitution. It's doable. Someone just needs to be willing to take the time that's required and make the investment.”
Can you talk a little bit more about what characterizes a high-quality public defense system? What kind of reforms are most effective in ensuring justice?
There are a number of rather intuitive things about the way that a high-functioning system performs: getting people in touch with an attorney, giving defenders the time to prepare for a case, and giving them the ability to sort of form a real collaborative attorney-client relationship. We know that when defense attorneys intervene earlier in cases, things go better in terms of outcomes. The extent to which a person was just languishing in jail and costing the taxpayer money is reduced as well.
We also know all kinds of things about the ways that defenders can be effective advocates in their community to advocate for building more effective systems. There’s a whole corpus of work about the experience defendants have that shows how important it is that attorneys make them feel heard. It makes defendants disclose more evidence to their lawyers and become more effective collaborators in their own defense.
There's a lot that we don't know. We’re far from having an evidence-based model for how to create a high-functioning defense system compared to what you see elsewhere in the correctional system. Defense is behind in its research base. We now can begin to say that there are things that we know about this system, and there are ways to know more.
To the extent that there is established wisdom about what makes a high-quality public defender system, most of it is aspirational — very little of it is research based. We want to understand what works while recognizing that thousands of local and state criminal legal systems provide public defender services thousands of different ways, sometimes within the same system. What’s exciting is that we’re now at a place where we can say, “Here are policies on early representation that work whether you're in Montana or Mississippi, California, or Rhode Island.” And that's a really exciting place to be in the research.