The Poor are Still Losing: Gideon’s Empty Promise

pd in action graphicThis past weekend I spent some time thinking about the future of indigent public defense and what role, if any, defense lawyers can play in a system beset by racism and classism.  First, I read a provocative essay by Paul Butler, “Poor People Lose: Gideon and the Critique of Rights,” in the Yale Law Journal’s most recent issue, which contains over twenty articles (all available for free download) by law professors and lawyers reflecting on the 50th anniversary of Gideon v. Wainwright.

Professor Butler makes a strong case for the idea that the focus on rights discourse — the right to counsel at trial, the right to counsel during plea negotiations, the right to Miranda, the right to a jury trial — ultimately has little impact on a criminal justice [or juvenile justice] system in which poor people nearly always lose.  Why do they lose?  Because, as Butler explains, protecting defendants’ rights is much different than protecting defendants:  “What poor people, and black people, need from criminal justice is to be stopped less, arrested less, prosecuted less, incarcerated less.”  Providing a lawyer — especially one who is underpaid, overworked, and under-resourced — does little to change this calculus.  As Butler reminds us, the reason that being poor and African American substantially increases the risk of incarceration has more to do with class and race than with the quality — or lack thereof — of the indigent defense system.

So, what do we do about it?  That, Butler acknowledges, is the hard part.  We certainly don’t discourage law students from becoming public defenders, because on an individual level, they do help clients [more on this below].  But what is the alternative?  Michelle Alexander has urged defendants to take their cases to trial, putting a stop to the vicious plea mill that has subsumed the adversarial process, and to “crash the justice system.”  Butler has called for “racially based” jury nullification for nonviolent, victimless crimes as well as decriminalizing or legalizing drugs.  I’m not convinced that these specific strategies in and of themselves will catalyze a social reform movement large enough to alter the system, but it’s clear that nothing should be discounted, for the situation is dire.

With all of this percolating in my mind, I happened to watch the new HBO documentary, “Gideon’s Army,” which follows three public defenders working in under-resourced counties in Georgia and Mississippi.  The film was engrossing and offered (what seemed to me, at least) a realistic portrayal of the challenging and gruelling nature of indigent defense.  The three young PDs — two women and one man, all African-American — were dedicated and driven, although one understandably walks away from the job when she can’t pay her bills to support herself and her son.  The film concludes (perhaps for marketing purposes) with a happy ending — an acquittal after a jury trial, which made me — a total sap — cry as the PD was hugged by her (young black male) client and his (low-income) single mother.

But as the credits rolled, I didn’t feel much like recruiting baby PDs for this “army” or donating to the organization that inspired the documentary — the Southern Public Defender Training Center (SPDTC) (now called “Gideon’s Promise”), led by the dynamic (white male) Jon Rapping.  Instead, I wanted to crash the system.  The film’s explicit message is that there’s a “battle” going on in which dedicated and hard-working PDs can win if only enough of them sign up, endure slave wages, and get down with representing one poor person of color (and the occasional white poor person) after another, as our prisons only continue to expand.

The director, Dawn Porter, draws clumsy parallels to the civil rights movement (and even offers a cameo by John Lewis who appears at a fund-raising event for SPDTC), but there’s no acknowledgement that the lawyers who represented civil rights workers in the south had clear goals and objectives, while these PDs are fighting for…what exactly?  By acting as cogs in a broken machine, one that even Rapping admits is “hell,”  they are not bringing about systemic change.  Yes, they may make a difference to an individual defendant, but there is no talk of broader-based action — such as a demand for a living wage, reasonable caseloads, or enough funding to perform basic investigative tasks and forensic testing.  Let’s be real — how could there be this sort of activism?  These lawyers are barely hanging on, working 15-16 hours/day and scrambling for change to buy enough gas to get them to the courthouse.

Don’t get me wrong — I was a proud public defender for ten years, and as a clinical professor, I still represent the same client population; I am heartened whenever one of my students enters this field.  But I would never suggest that the work of the average PD, like the ones featured in the film and in most offices across the country, actually transforms the populations they serve or that the appointment of a lawyer — the RIGHT to a lawyer — helps dismantle the incarceral state.

I would also be reluctant to recruit young lawyers for this work using the pitch championed in the film, because as romantic as it sounds, it will inevitably attract people for all the wrong reasons, such as one of the women who balks when a client feels no remorse for his heinous crime.  She thought she was on the “right” side of the war, only to find that the lines are not so easily drawn.  As Travis Williams, my favorite PD in the film said, “I don’t see how you can do this job for any period of time and not love it.  Either this is your cause or this ain’t.”  He’s the guy who has tattooed the names of his clients who have been convicted after trial on HIS OWN back.  He will be a career PD, and his clients will be truly blessed to have him on their side.  He also recognizes, however, that the work is thankless, that the conditions are unlikely ever to change, and that it’s more of a marathon than a war.  A marathon with no end in sight.

Your thoughts?  Please share in the comments.

This post also appeared at PrawfsBlawg.

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Join Me at PrawfsBlawg This Month!

4e1b0173829235e06c23062b3b6afa63-1Dan Markel (Florida State University Law School) has been asking me for years to guest blog on the always-interesting law professor blog, PrawfsBlawg.  Knowing that I’ll never have the time until I make the time, I finally agreed to join in the conversation this month.  If you’re not familiar with the blog and have an interest in a variety of legal issues, please check it out.

My first post is inspired by my 2012 article on the concept of “delinquent by reason of poverty.”  Here’s how it begins:

Many thanks to Dan et al. for welcoming me into the fold.  By way of introduction, I’ve had a somewhat unorthodox route to legal academia, having practiced as a public defender for a decade (on both the state and federal levels), then starting on the clinical track here at the University of North Carolina at Chapel Hill in 2004, only to switch to tenure track and (gratefully) receive tenure last year.  I’m currently serving as interim director of clinical programs, adding a variety of administrative duties to my plate.  As a result, my perspectives on legal education, scholarship, and related matters may be different than some.  I hope to touch on these topics during the month, but mostly I’ll be exploring the issues that I’m particularly passionate about — juvenile justice policy and reform, indigent criminal defense, and the criminalization of poverty.  About a year ago I started my own blog focusing on these areas, which you may check out here.

For now, I’ll introduce a question that I’ve been struggling with ever since I first started practicing in juvenile delinquency court nearly ten years ago — why is it that most of the children in the juvenile justice system are poor?  Why are they nearly all from families that are living at or below the poverty level?  As a parent of adolescents, I know that it is surely not because kids from low-income families are the only ones who violate the law, as my own (relatively well-behaved) daughters have committed many of the same types of very minor assaults, larcenies, and disorderly conduct offenses that have led to my young clients being criminally charged, ending up with delinquency records and (sometimes) detained.  I also have come to conclude, based both on my own practice experiences as well as longitudinal studies of children exposed to juvenile court, that when kids are processed through the system, the impact is not benign — even when the disposition is arguably beneficial.  Instead, the research shows that these children have higher rates of recidivism and are stigmatized in the process.  In addition, potential negative consequences of juvenile delinquency adjudications may be seen in such areas as housing, employment, immigration and higher education as well as enhanced penalties for future offenses.

You may read the rest here.

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Indiana Juvenile Justice Blog

cropped-courtroom-art3Earlier this week I received an email from Kaarin Lueck, public defender in Richmond, Indiana, and nationally-known expert in juvenile delinquency and criminal defense.  She very kindly shared the following:

Prof. Birckhead:

I felt compelled to reach out to thank you for inspiring me to start a juvenile delinquency blog for Indiana.  There really is so little nationally available to keep folks up to speed on developments in juvenile delinquency law, and certainly nothing for Indiana.  It has been a fun adventure and it is three months old today.  It is already being followed by judges, public defenders, prosecutors, legislators, advocates, and regular folks.  My blog post for tomorrow will feature your series on delinquency and poverty.

I hope we meet along the way, perhaps at a National Juvenile Defender Center Leadership Summit.

Kaarin Lueck

As the first year anniversary of this Juvenile Justice Blog approaches, I was particularly heartened to receive this message, and I encourage everyone to check out Kaarin’s blog, Indiana Juvenile Justice Blog.  It’s chock full of great information that is relevant not only for those who practice in Indiana but for anyone who cares about children and the courts.  Kaarin already has put up over 70 posts (!) and I’m honored that one of them focuses on my work on the disproportionate representation of low-income children in the delinquency system.  You may follow the blog’s posts as a subscriber, via Twitter and Facebook.

I’m hoping that this is the beginning of a national trend!  Good luck to Kaarin Lueck and thanks in advance for helping to spread the word about these critically-important issues.

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Closing the Widening Net: The Rights of Juveniles at Intake

juvenile-probationShould juveniles have more, fewer, the same or different procedural rights than are accorded to adults?  This question, posed by Professor Arnold Loewy for a panel at the 2013 Texas Tech Law Review Symposium on Juveniles and Criminal Law, requires us to examine our goals for the juvenile court system.  My primary goal, having practiced in both adult criminal and juvenile delinquency forums for over twenty years, is to ensure that the reach of juvenile court is no wider than necessary, as research indicates that when children are processed through the juvenile court system and adjudicated delinquent, the impact is not benign.  Potential negative consequences of juvenile delinquency adjudications are felt in such areas as housing, employment, immigration and education as well as enhanced penalties for future offenses.  Further, longitudinal studies show that children exposed to juvenile court reoffend at higher rates and are stigmatized by even the most minimal contact with the juvenile court system.

This Article, the second in a series on the disproportionate representation of low-income children in the U.S. juvenile justice system, examines the intake process, which operates as one of the primary gateways to juvenile court.  The Introduction describes a typical case, highlighting the shortcomings of the current process and the risks—short- and long-term—that they pose to juveniles.  Part II presents the nuts and bolts of the intake stage, including details regarding who conducts the screening, its purpose, and the assessment criteria applied.  Part III discusses the procedural rights of juveniles at intake according to the U.S. Supreme Court, state courts and legislatures.  Part IV analyzes what can—and often does—go wrong with the intake process, resulting in a wider net being cast around minorities and low-income children and families.  Part V offers proposals for reform, including providing counsel to children prior to intake; mandatory advising of children and their parents by the juvenile probation officer conducting the intake interview; and introducing an objective rubric for the evaluation of delinquency complaints by juvenile probation officers. 

The full article may be downloaded for free here.  I know it looks long (28 pages), but a good portion of that is footnotes that you can skip. Although it’s a law review article (i.e., usually dry and hard to get through), I’ve tried to make it readable and accessible to anyone who cares about the juvenile court system and making it more fair for children.

Please share your thoughts on the piece in the comments!

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Life Without Parole: Why it Must End for Youth

The Campaign for the Fair Sentencing of Youth (CFSY) with various partners has recently produced a very effective infographic that they introduce with the following text:

In light of the June 25, 2012 U.S. Supreme Court ruling in Miller v. Alabama that mandatory Life Without Parole sentences for juveniles violates the Eighth Amendment’s prohibition of cruel and unusual punishment, there is a timely opportunity to help define revised state legislation around this issue. The following videos and facts have been compiled in coordination with a coalition of NGOs working on the frontlines of this issue and are intended to help make change for state-by-state legislation.

 Click on the image below to launch the info graphic (once the page has opened, click again to enlarge the image):

Kids Locked Up for Life without Parole - A U.S. Monopoly


Other info graphics from CFSY appear here.

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Defending a Terror Suspect

Boston Marathon ExplosionSince the capture and arrest of Dzhokhar Tsarnaev (pictured on the left at his high school graduation in Cambridge, Massachusetts), the college sophomore charged with the Boston Marathon bombing, I have thought about another young man who was charged with acts of terrorism. Twelve years ago, I was the public defender assigned to defend Richard Reid, more popularly known as the “shoe-bomber.” Three months after 9/11, Reid tried to detonate explosives packed into his sneakers while on an American Airlines flight from Paris to Miami. When a flight attendant saw him struggling to light a fuse protruding from his shoe, she and others subdued him, restrained him with passengers’ belts and sedated him with drugs from the onboard medical kit. The flight was diverted to Boston, where Reid was taken into custody and charged in federal district court with attempted use of a weapon of mass destruction and attempted homicide, among other crimes.

I had been practicing in Massachusetts as a public defender for eight years (in both state and federal courts) when Reid’s case was assigned to me. I happened to be the attorney “on call” that week in the Federal Defender Office, meaning that I was next on our internal list to receive new cases. I remember watching the news that weekend, hearing that a plane had landed at Logan Airport and that someone was charged with trying to blow it up; immediately I knew that federal prosecution was likely and that the case would come to me. Five months pregnant at the time, with a toddler at home and my husband in graduate school, I found the prospect daunting, to say the least.

As with most federal criminal cases, the government’s evidence against Reid was overwhelming and there was little room for us to maneuver. I wanted to go to trial and force the government to meet its burden, but Reid chose to plead guilty and accept the equivalent of a life sentence, rather than participate in a court system he considered illegitimate. Yet my experiences working on the case were quite positive. Although I had never defended someone charged with acts of terrorism, I had represented many people prosecuted for violent acts—from robbery and kidnapping to rape and murder—and I knew that the nuts and bolts of the advocacy would be the same. I also had the head of the office at the time, Owen Walker, as co-counsel as well as the support and encouragement of our other colleagues and staff.

What I wasn’t prepared for, however, was the intense media scrutiny. We were inundated with press calls—newspaper, radio and television reporters from around the country and abroad. The office was small—just seven or eight attorneys, a couple of investigators and support staff—and we were ill-equipped for that degree of attention. In the weeks and months that followed, I wrote my own press releases and strategized in the hallways over which journalists to give interviews to, what to say to them, and how to try to mute the professional communications machine of the US attorney’s office prosecuting the case.

As for my personal interactions with Richard, they were always cordial and respectful. Although he would not shake my hand, explaining that it wasn’t allowed under the laws of Islam, he listened to the information that I shared, considered it carefully and responded with his own thoughts and questions. Often Owen and I would visit him together, and Richard treated us both as professionals. As with the majority of my clients over the past twenty years of practice, I grew to feel warmly toward him and to enjoy his company.

I learned that Richard, who was 28 when we met, had been born in England to a soft-spoken librarian and an absentee father whose own father was Jamaican. As a child, he had felt quite lost when his mother remarried and had another son; he never quite fit in at school or with his blended family, and by 17 he was sentenced to a year in a juvenile facility for mugging an elderly person. He drifted through his early 20s, served more jail time for theft and began attending a mosque in London, where his ideology became more extreme and anti-American.

I hadn’t thought much about Richard in recent years, but after federal charges were brought against Dzhokhar Tsarnaev, I have spoken out for the rights of this 19-year-old who could face execution or life in prison. When asked how I (or anyone) can defend “those people,” I say that we are each more than the worst thing we have ever done, that youth should be a mitigating factor at sentencing and that the death penalty is immoral. To me, it is a privilege to be the voice for the most hated in the courtroom.

The public defenders appointed to represent young Tsarnaev include my former colleague from the Federal Defender Office in Boston, Miriam Conrad, and Judy Clarke, who has represented such high-profile defendants as the “Unabomber” Ted Kaczynski and the Olympic bomber Eric Rudolph. Conrad assisted in the defense of Reid and has rigorously represented others charged with terrorist acts, and Clarke has successfully negotiated plea deals that have spared her clients the death penalty. In other words, both women are excellent at what they do—skilled, dedicated and extremely effective criminal defense attorneys. Anything less would compromise the integrity of the system.

* * *

That accused terrorists have a right to a defense at trial at all is thanks in large part to a man named Clarence Earl Gideon. In 1961, he lived with his fourth wife in Panama City, a small town located on the Florida panhandle off the Gulf of Mexico. He drank too much, had done time in three states for robbery and theft and was perpetually broke. Before dawn in early June, someone broke into a local bar and poolroom, stealing four bottles of wine, two dozen bottles of beer and soda, and change from the jukebox and cigarette machine.

On a tip from a neighborhood resident named Henry Cook and little else, the police arrested Gideon and charged him with felony breaking and entering. When he appeared in court without funds, he asked for a lawyer but the judge refused, explaining that Florida law allowed for the appointment of counsel only in capital cases. Lacking other options, Gideon did his best to defend himself at trial, but after an hour of deliberation, the jury convicted him and he was sentenced to five years in prison.

Once his appeals were exhausted in the Florida courts, however, Gideon didn’t give up; he mailed a letter, written on prison stationery, to the US Supreme Court, saying that his constitutional rights were violated by the judge’s refusal to provide him with a lawyer. On March 18, 1963, the high Court agreed, overturning precedent and holding that “reason and reflection require us to recognize that, in our adversary system of criminal justice, any person hauled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him.”

Gideon was retried with private counsel paid by the state. His lawyer carefully chose a jury, objected to improper questioning by the prosecutor and picked apart Henry Cook’s testimony, suggesting that Cook was the lookout for the real thieves. The jury again deliberated for an hour, but this time Gideon was acquitted, and the rest is history. Gideon v. Wainwright made the right to indigent defense the law of the land.

There is a certain irony in comparing Gideon’s case to that of Reid or Tsarnaev: while infamous criminal defendants—those deemed enemies of the state—typically receive the very best that the public defender system has to offer, the anonymous ones—whose cases are quickly forgotten—are mere cogs in a broken machine. Many have no lawyer standing beside them, and those who do rarely notice a difference. For the vast majority, the essence of client representation has been lost: a skilled practitioner who offers advice and counsel, visits the scene of the offense, examines the evidence, interviews witnesses, provides rigorous oral advocacy, files legal motions and memoranda and, perhaps most importantly, has the time, energy and resolve to get the job done.

For the past fifty years, there has been a constitutional right to appointed counsel for indigent defendants, but in many jurisdictions today, the public defender system is broken. It is woefully underfunded, as indigent criminal defendants are not popular with politicians, either in Congress or state legislatures. Many felons have been disenfranchised, and voter turnout in poor communities is consistently low, due to lack of transportation and inflexible work schedules as well as organized efforts to suppress the vote.

In addition, the conditions under which public defenders (“PDs”) attempt to do their jobs are challenging. Many are overworked and underpaid, with little time for case preparation; few resources for legal research, expert witnesses or investigation; and a lack of respect within the profession. With only 15,000 appointed lawyers tasked with representing millions of criminal defendants, PDs must practice basic triage, giving their energy to the most serious cases (based on the charge or the potential length of sentence) or the most pressing ones.

PDs are also out-matched by their adversaries. At the state level, prosecutors have more staff and resources at their disposal and their salaries are higher. The recent Sequester cuts hit federal PD offices harder than federal prosecutors, triggering layoffs and extended staff furloughs—but even under normal circumstances, the federal defender budget is a fraction of that of the US attorney.

Spend just a few hours in your local courthouse to see the real-life impact of over-criminalization. The average criminal court docket is bogged down with misdemeanor cases (disorderly conduct, shoplifting, prostitution, possession of marijuana), and the most vulnerable among us—youth, people of color, the poor, immigrants and the mentally ill—spill out of the corridors, rarely receiving the attention, treatment or assistance they need. The halls of justice have become mere “plea mills.” PDs make “deals” for their clients, while increasing numbers of low-income defendants refuse appointed counsel because “free” actually means hundreds of dollars in court costs, probationary fees and fines. Without legal representation, these folks—like Gideon after his first trial—are locked up and burdened with criminal records that foreclose the possibility of future employment or higher education. Without a lawyer, an innocent defendant held on bail will plead guilty just to resolve the case and go home.

A half-century after Gideon v. Wainwright, the judiciary has done little to follow its spirit. The Supreme Court’s “test” for ineffective assistance of counsel requires proof not only that the lawyer’s performance was below the range of professional competence (using a very broad standard), but also that the defendant was prejudiced (using a very narrow standard). As a result, the legal threshold for adequate representation is extremely low—appellate courts have found that lawyers who were drunk, asleep, or under the influence of drugs did not violate their clients’ rights.

This is not to say that high-profile suspects charged with acts of terrorism shouldn’t receive top-notch representation or that those facing minor misdemeanors need a phalanx of defenders, but something must be done to elevate the quality of counsel across the board. The American Bar Association has recently released a report offering proposals for sustained reform: ways to reduce the number of cases coming into the system on the front-end; improve the quality of representation through performance standards, training and specialized resources (such as immigration law experts); and encourage collaboration and cooperation both within and outside the criminal justice system.

These are all good ideas, but the first step must be a commitment to ensuring that we don’t have two separate criminal defense systems—one for the rich and one for the poor. As Robert F. Kennedy said soon after Gideon was decided: “Equality of justice in our courts should never depend upon the defendant’s wealth or lack of resources, but in all honesty we must admit that we have failed frequently to avoid such a result.”

Dzhokhar Tsarnaev faces his next hearing on July 2, and the media scrutiny will likely be intense and fleeting. Change, as we know, happens slowly and incrementally, but we can’t allow another fifty years to pass only to find that the Sixth Amendment right demanded by an unknown drifter named Clarence Earl Gideon is, in fact, hollow.

This column was originally published by The Nation.  

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When Kids Behave Like Kids, Don’t Punish Them Like They are Adults

kiera wilmotAs a criminal defense lawyer and the mother of two girls, I have a very effective disciplinary tool at my disposal: I can take just about any undesirable interaction between my daughters and frame it as a crime.  If the older one smacks the younger one, it’s an assault. If the younger one takes her big sister’s earrings, it’s larceny. If they are both yelling and shouting at each other, it’s disorderly conduct.

Over the years, I’ve been able to advise them that this behavior not only breaks the rules of our home but also violates North Carolina’s criminal statutes. As someone who defends children in juvenile delinquency court, I can also warn them that they could be criminally prosecuted and end up – as my young clients do – facing a judge and the possibility of a year of supervised probation, removal from their home, or long-term detention and commitment.

While these admonitions do give my daughters pause, they know – deep down – that the odds of any of this occurring are practically nil. But what separates my girls’ actions – which can readily be characterized as developmentally appropriate inappropriate behavior – from that of my clients? Sadly, I believe that it comes down to race, class and cultural status.

I thought about all of this recently when reading of 16-year-old Kiera Wilmot (pictured above), a student with good grades and a perfect behavior record at Bartow High School in Bartow, Fla. In April, Kiera was expelled after mixing toilet bowl cleaner and aluminum foil in a two-liter bottle, causing a small explosion outside her school that hurt no one and damaged nothing.

According to the police report, when the assistant principal, Dan Durham, heard the noise, he approached Kiera, who explained that she was conducting an experiment for the science fair. After speaking with the science teacher, who knew nothing about the specific project, Durham contacted the police. An officer arrived, interviewed Kiera, and then called the prosecutors office. Assistant State Attorney Tammy Glotfelty advised the officer to arrest Kiera and charge her with two felonies: possession and discharge of a weapon on school grounds and discharging a destructive device. Kiera was taken to a juvenile assessment center and told she could ultimately be charged as an adult in criminal court.

How could this happen? How is it that several grownups – all professionals – made a series of decisions that led to the expulsion from school and criminal prosecution of a young person for an act that was nothing more than a teenage prank? The Polk County School District released a statement asserting that the incident was “a serious breach of conduct,” that students must learn “there are consequences to actions,” and that “[w]e will not compromise the safety and security of our students and staff.”

Although I was relieved to see that by the end of May, the prosecutor had agreed to place Kiera on a diversion plan (meaning that the criminal charges could ultimately be dimissed), what happened to this teenage girl is not an anomaly or an aberration. Ordinary misbehavior of children and adolescents – most of whom are black or brown – is regularly criminalized by school administrators as a result of zero-tolerance policies, implicit bias against racial and ethnic minorities, and disregard for the harsh collateral consequences of a criminal record. In addition to the stigma and humiliation suffered by Kiera, her opportunities for higher education and future employment could be significantly diminished by the way in which educators, law enforcement, and the justice system have handled the situation.

Would this have happened to my daughters – white, upper middle-class girls from a family of means? Would they have been summarily expelled and prosecuted for a childish prank that was inspired by mere curiosity? If not, what is it that separates them from Kiera Wilmot?

The school-to-prison pipeline is a very real phenomenon in the United States today. Until it is dismantled, we will continue to live in a society where the only logical answer to this question is skin color and socio-economic status. And that is not the world that I want for my children — or anyone’s.

This column also appears on Youth Today and the Juvenile Justice Information Exchange.

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To Defend a Terrorist: Reflections on Reid, Tsarnaev & How I Got from There to Here

reid and birckheadSince my last post, I’ve been occupied with putting myself out there (via print, radio & cable news) to share the message that even those charged with the most heinous offenses are still human beings, that we are each more than the very worst thing we have done, and that execution is morally wrong.

In my last life, I worked as a federal public defender in Boston and had the occasion to represent Richard Reid, the failed or would-be shoe-bomber.  This wasn’t a role I sought out, and in fact, when the case was initially assigned to me, I felt apprehensive about taking it on.  It so happened, however, that I was “on call” during the last week of December 2001, meaning that any new cases appointed to the office were mine; so, when Reid’s American Airlines flight from Miami to Paris was diverted to Boston’s Logan Airport and he was arrested and charged with acts of terrorism, I knew that this 28 year old bin Laden adherent of British/Jamaican descent would become my client.

The timing was not at all ideal — as though there are ever ideal conditions under which to take on a case/client like this one.  My husband was in graduate school, we had an 18 month old daughter, and I was five months pregnant with our second child.  In other words, not much “work-life balance” or “leaning in” was happening for me right then.  We lived on the top floor of a Dorchester triple decker (ask someone from Boston to explain), with a wanna-be white rapper from the suburbs, his cranky girlfriend and three snarling pit bulls below us.  Needless to say, I was regularly giving people on the T (Boston’s subway) the evil eye when they wouldn’t make room for me on the bench, as my belly was rapidly expanding and my patience was wearing thin.

Much of my representation of Reid remains somewhat of a blur, coming back in sharp flashes of memories — incessant calls from the press, countless boxes of discovery from the US Attorney’s Office, special security clearances, and long trips to MCI-Plymouth to see Richard.  Also, it was winter in Boston and it was cold.  Very cold.

I recall fraught meetings with Richard’s mother, Leslie Hughes, a polite, soft-spoken English woman who worked as a librarian, then remarried and had a second son with a local town planner; she suggested that Richard had first become estranged and angry at age 11 after his parents’ divorce and her remarriage, as he never fit in with the “new” family configuration — he withdrew from his step-father and didn’t bond with his half-brother.

At 16, Richard dropped out of school and drifted about in search of another community; he ended up in jail — as had his father — and converted to Islam, eventually finding the London mosque led by an anti-American cleric known for his extremist views and purported ties to al Qaeda.  Trips followed to Afghanistan and Pakistan.

As we geared up for a trial, learning about plastic explosives, litigating various pretrial motions, strategizing and working with experts, it became clear that Richard did not want to engage in any meaningful way with the American criminal justice system, which he considered to be illegitimate and a sham.  He wanted merely to go to court and “admit what [he] had done.”  And so, on January 31, 2003, he did just that.

Richard Reid is now serving a life sentence at the notorious “supermax” prison in Florence, Colorado.  As I am no longer a federal public defender, I have had no contact with him since 2004.  I do think of Richard and the case,  however, whenever I go through airport security and remove my shoes — which may be his only concrete legacy.

Fast forward 12 years and I’m the mother of two middle schoolers, living in balmy North Carolina and teaching eager law students the nuts and bolts of representing poor people charged with crimes.  There are explosions set off during the Boston Marathon, and I watch in horror as three spectators are killed and 261 are grievously maimed.  I lived in the Boston area for 15 years (everywhere from Somerville and Cambridge to Jamaica Plain and Newton) and still have close friends and former colleagues there; I frantically send out texts and emails, hoping that they are safe.

Then a reporter Googles “lawyers for terrorists” and my name comes up.  He calls, and I happen to answer the phone in my office at the law school.  He wants to know what it was like to represent Reid and to work with Dzhokhar Tsarnaev’s Boston federal defender, Miriam Conrad, and he poses the oft-asked question, how can you defend those people…?

I talk and I listen, as I patiently try to explain what motivates me — and perhaps others — to do this work.  I think of 19 year old Dzhokhar, a college sophomore and Russian immigrant, who likely helped his older brother bring about the destruction and loss of life resulting from the bombings in Boston.  He is young, with a still-developing brain.  He has friends, a roommate, a Twitter account, and many of the other trappings of ordinary kids in America.  His brother is dead, his parents remain in Russia, and he is held at the federal medical center at Ft. Devens, recovering from gunshot wounds to his throat.  If Dzhokhar escapes execution, he will likely spend the remainder of his life — 70+ years — in federal prison.  Perhaps he will be housed with Reid at the supermax.

I think of the victims — particularly 8 year old Richard Martin and his bright, wide-eyed expression that represents nothing short of pure innocence.  I think of his parents and the devastation from which they will never, ever recover.

In the weeks and months (and perhaps years) to follow, we will search for answers — why did the Tsarnaevs do it?  What did they hope to accomplish?  What is a just penalty for a 19 year old who has committed such atrocities?  Attorneys Miriam Conrad, Judy Clarke and their colleagues will do yeoman’s service to save Dzhokhar’s life.  They will review discovery, file motions, interview witnesses, negotiate with the government and appear in court.  They will try to make a connection with their client, form a bond, and help him achieve the best possible resolution of the case.

It is a grueling, seemingly thankless task, but it is also a privilege to serve the role of defender — particularly that of public defender.  For some of us it is a calling, a mission.  We see the humanity in our clients, regardless of what they have done, and we do all we can to reveal that humanity to everyone else.

PHOTO CREDIT: Richard C. Reid is shown, left, in this December 2001 handout photo from the Plymouth County Jail, while Public Defender Tamar Birckhead is shown in this 2001 file photo.
AP Photo/Reuters


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Posted in Criminal /Juvenile Defense, Death Penalty, Sentencing, Terrorism cases, Uncategorized | 1 Comment

Telling the Whole Truth about Juvenile Incarceration Rates

While a new report finds that juvenile incarceration rates are declining in the United States, there is more to the story than just the numbers.  In this guest post, Jason Langberg, staff attorney with Legal Aid of North Carolina, examines critical questions that the media has thus far ignored.

Telling the Whole Truth about Juvenile Incarceration Rates  

By Jason Langberg

Elijah was a 11-year-old black middle school student at an alternative school. He lived in grinding poverty and was the victim of domestic violence. He had an emotional disability but his Individualized Education Program (IEP) was generic and provided him with no mental health services. Elijah became involved in the juvenile system after stealing some bicycles. He spent time in and out of therapeutic group homes; however, he was sent back to his mother’s house after state budget cuts caused a dramatic reduction in group home placements. Elijah continued getting in trouble. Eventually a juvenile court judge ordered Elijah to cooperate with a placement by his mental health treatment team, which decided to send him to a locked psychiatric residential treatment facility (PRTF).

Elijah spent three months in a detention center awaiting placement in a PRTF. He was eventually shipped off to a private PRTF located three hours from his family. At the PRTF, he didn’t have an IEP in place and received the same generic curriculum as all of the other middle school students, regardless of age or ability level. Elijah was discharged 10 months after being admitted because the corporation that ran the PRTF shut down. He’s now 14-years-old, living in a group home, and still on probation.


Jamal was a 16-year-old black high school student who lived in grinding poverty. He was an incredibly smart kid, played football and had dreams of going into the Air Force. He first became involved in the juvenile system as a 15-year-old tenth grader. After spilling a drink in class, he was excused to get paper towels from the restroom. While in the hallway on the way back to class, the school went into lockdown. The assistant principal encountered Jamal and accused him of skipping class. As Jamal tried to explain the situation, the two began arguing. The situation escalated when a school resource officer (SRO) got involved, slamming Jamal’s head into a window in order to subdue him. A delinquency complaint was filed against Jamal and he was placed on probation for six months. Jamal successfully completed his probation at the beginning of eleventh grade and had a great start to his year. He was earning good grades, staying out of trouble and meeting with military recruiters to initiate the process of enlisting in the Air Force.

One afternoon, he borrowed a friend’s telephone to call his father. While on the phone with his dad, another student grabbed the phone out of Jamal’s hand and kept it. Though the phone was soon returned to its rightful owner and Jamal played absolutely no role in its theft, a school administrator suspended Jamal out-of-school for three days and the SRO filed a complaint against Jamal, alleging that he was an accessory to theft. Since Jamal was 16-years-old in North Carolina, he was automatically prosecuted in the adult criminal system. Acknowledging that he didn’t believe Jamal to be involved in phone thefts, the SRO told Jamal’s father that he would recommend to the District Attorney that Jamal be granted a deferred prosecution. When his father asked the SRO why he filed the complaint against Jamal, the officer said that there had been several phones stolen recently and the school wanted to send a message to the thieves by executing swift and harsh punishments. Thanks to the zealous advocacy of Jamal, his father and a pro bono attorney, the case was referred to teen court and ultimately dismissed. However, because the school wanted to send a message, Jamal now has a record in the adult criminal system that could come back to haunt him, and he came incredibly close to seeing his dreams of going into the Air Force destroyed.


A new report by the Annie E. Casey Foundation shows that juvenile incarceration rates in the United States, although still highest among industrialized nations, are declining nationally and in most states. Bart Lubow, Director of the Casey Foundation’s Juvenile Justice Strategy Group, attributes the national decline to three factors: 1) declining juvenile crime rates; 2) state budget cuts; and 3) a shift in thinking about the best ways to handle young people who break the law.

A declining juvenile incarceration rate is unquestionably a positive development because correctional institutions are, generally speaking, dangerous, ineffective (i.e., don’t reduce recidivism or increase public safety) and expensive. However, the juvenile incarceration rate is only one data point, which presented in isolation fails to take into account other related realities, including the real experiences of young people like Elijah and Jamal.

Although the Casey Foundation report provides good context for the declining incarceration rate, media coverage of the report and discussion of the report by policymakers have not. In order to situate the state data provided in the Casey Foundation report, media, policymakers and juvenile justice advocates should ask the following questions about their state’s policies and practices:

  • What are the actual conditions in facilities for juveniles who remain incarcerated?
  • Why are juveniles still being incarcerated?
  • Who is still being incarcerated?
  • How much is the state still spending to incarcerate juveniles?
  • How many juveniles are confined in adult facilities and mental health institutions, and therefore, not included in the Casey Foundation’s data?
  • How many juveniles are still involved in the juvenile system, which increases their likelihood of involvement in the adult criminal system and future incarceration?

Unfortunately, once policymakers and advocates answer these questions, they will likely discover that, despite recent progress, youth incarceration is still too frequent and expensive, and disproportionately affects children of color.

A focus on North Carolina reveals that by asking these questions, we can shed some light on other important realities needing reform.

According to the Casey Foundation report, in 2010 there were 849 youth in confinement in North Carolina and the rate of youth confinement in the state declined by 43% from 1997 to 2010. The declining juvenile incarceration rate in North Carolina is primarily due to budget cuts and declining juvenile crime rates; there was a 28% decline in the delinquency rate from 2006 to 2011. The state may also very well be making productive efforts when it comes to prevention and intervention, as it claims. The report has received attention in North Carolina, but the data has not been presented with necessary context.

What are the actual conditions in facilities for juveniles who remain incarcerated?

Currently, North Carolina has four juvenile prisons – called Youth Development Centers (YDCs) – located in Butner, Siler City, Kinston, and Concord. Three years ago, there were seven YDCs, but in 2011, the state closed the Samarkand and Swannanoa YDCs, and in 2012, it closed the Edgecombe YDC. In 2011, juveniles ranging from age 12 to age 20 were incarcerated in YDCs. Commitments to YDCs last indefinitely and for at least six months.

North Carolina has a long history of problems with YDCs. In 2002, the Asheville Citizen-Times published a series of articles revealing sex abuse allegations at the Swannanoa YDC, as well as claims that youth were “hog-tied” to their beds and “left alone for hours and not allowed to go to the bathroom.” In 2003, North Carolina’s State Auditor released a report finding “unsafe conditions” throughout the state’s youth corrections facilities. The Auditor’s report documented a high volume of abuse complaints, many of them substantiated, along with a failure in most facilities to properly document and investigate abuse claims. In 2010, the U.S. Department of Justice revealed in a survey that youth in North Carolina’s YDCs reported sexual victimization while incarcerated in the state’s juvenile facilities. Abuse and unsafe conditions in North Carolina’s YDC may very well be an on-going problem.

Why are juveniles still being incarcerated?

Too many youth are locked up for minor offenses, including status offenses. A status offense is an act, such as truancy and running away, that would not, under the law, be a crime if committed by an adult. Status offenses are more effectively handled with community-based services, such as family therapy and mentoring, and do not warrant confinement. According to a March 2012 presentation by the North Carolina Department of Juvenile Justice and Delinquency Prevention (now called the Division of Juvenile Justice): a) “NC averages more than 5 days in detention for status offenses”; b) “NC detains as many low-risk youth as it does high-risk youth”; c) “More medium risk youth are detained than high risk youth”. North Carolina had been out of compliance with the federal Juvenile Justice and Delinquency Prevention Act (JJDPA), which requires that youth charged with status offenses not be placed in secure detention or correctional facilities. This violation costs the state $320,000 per year in federal funding. Fortunately, North Carolina’s Juvenile Code was revised in 2012 to preclude detention for status offenders (“undisciplined juveniles”).

Who is still being incarcerated?

Black youth are disproportionately locked up in North Carolina. In 2011, black youth were approximately 26% of the total juvenile population but were 61% of youth admitted to detention centers and 72% of youth committed to YDCs.

How much is the state still spending to incarcerate juveniles?

North Carolina still spends too much money on locking up youth. During the 2010-11 fiscal year, the Division of Juvenile Justice spent $11,327,783 on detention and $39,884,674 on YDCs. Millions more is spent on throwing 16- and 17-year-olds in jails, prisons and mental health institutions. Taxpayer money could be better spent on prevention, early intervention and community-based alternatives to confinement.

How many juveniles are confined in adult facilities and mental health institutions, and therefore, not included in the Casey Foundation’s data?

North Carolina is the only state that treats all 16- and 17-year-olds as adults when they are charged with criminal offenses and then denies them the ability to appeal for return to the juvenile system. The decline in juvenile incarceration rates doesn’t include the unknown number of 16- and 17-year-olds in North Carolina’s adult jails and prisons. It also doesn’t include youth ages 13, 14, and 15 who are in adult facilities after being transferred to and convicted in adult criminal court.

For years, North Carolina has been out of compliance with the JJDPA, which requires “sight and sound separation” (i.e., that juveniles not be detained or confined in any institution in which they have sight or sound contact with adult inmates) and “adult jail and lockup removal” (i.e., that juveniles not be detained or confined in an adult jail or lockup). The violations cost the state $640,000 per year in federal funding.

Moreover, juveniles who may otherwise be incarcerated could instead be ending up in psychiatric residential treatment facilities (PRTFs), which are locked, in-patient facilities for children and youth with mental illness and/or substance abuse issues. Some parents and/or juveniles, like Elijah and his mother, are being forced to choose between going to a PRTF or some other seemingly worse fate (e.g., charges being filed, being committed to a YDC, etc.). When they choose placement in a PRTF, Medicaid, the juvenile’s health insurance provider, or the parent is responsible for payment; consequently, the juvenile system is off the hook for footing the bill to incarcerate. Youth in PRTFs are often denied quality services and aftercare supports.

Moreover, juveniles are often held in detention for long periods of time while waiting for a PRTF bed to become available, despite the fact that detention centers are intended to be short-term facilities and are ill-equipped for long-term treatment and education services. Juveniles in PRTFs aren’t accounted for in juvenile incarceration rates. There are now 486 in-state PRTF beds, with many more kids being sent to out-of-state facilities. The number of PRTF beds in North Carolina has quadrupled since 2005.

How many juveniles are still involved in the juvenile system, which increases their likelihood of involvement in the adult criminal system and future incarceration?

Too many young people age 15 and younger are still involved the juvenile system, which lacks the resources necessary to adequately supervise, treat and rehabilitate all of the youth it serves. Public records show that during 2010, there were over 10,000 juveniles on probation, nearly 3,500 youth on some type of supervision, 744 youth committed, and over 7,700 youth on a diversion plan or contract for one day or more. In 2011, there were 6,380 admissions into juvenile jails – called detention centers.

The school-to-prison pipeline contributes to the huge flow of young people, like Jamal, into the juvenile and criminal systems. For example, during 2011-12, North Carolina public school students missed 791,442 school days as a result of suspension, and thus, were more likely to engage in delinquent and criminal activity. In 2011, 43% of all delinquency complaints were school-based. Additionally, probation orders often contain boilerplate language requiring juveniles to attend school regularly; therefore, juveniles on probation who are suspended are found to have violated suspension and may be sent to detention.

North Carolina would be well-served to raise the age of juvenile court jurisdiction and limit transfers of juveniles to adult criminal court. For all of the juvenile systems flaws, it is still far better for young people than the adult criminal system, as well as better for public safety and more cost effective in the long-term.

Additionally, all states would benefit from adopting some of the Casey Foundation’s recommended best practices for reforming juvenile corrections:

  • Limit eligibility for correctional placements to youth who have committed serious offenses and posed a clear and demonstrable risk to public safety;
  • Invest in a broad continuum of high-quality services, supervision programs and dispositional options to supervise and treat youthful offenders in their home communities;
  • Adopt policies, practices and procedures to limit unnecessary commitments and reduce confinement populations (e.g., implement detention reform, reform school discipline policies, make better use of diversion, enhance legal representation and advocacy, reduce correctional placements resulting from violations of probation, and limit lengths of stay in correctional facilities and other residential placements); and
  • Improve data collection and publication, including data on recidivism, success after release and conditions of confinement.

Jason Langberg is a Staff Attorney and Director of the Push Out Prevention Project at Advocates for Children’s Services, a statewide project of Legal Aid of North Carolina. He can be contacted at

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Posted in Conditions of Confinement, Delinquency, Guest Blogger, Juveniles, North Carolina, Race, Class, Ethnicity, Reports, School to Prison Pipeline, State Laws | 4 Comments

Steubenville: The Names Change, but the Story Stays the Same

“My life is over. No one is going to want me now.”

These were the words of 16-year-old Ma’lik Richmond after a judge adjudicated him delinquent of rape earlier this week in juvenile court in Steubenville, Ohio.

Hyperbole? Perhaps. But it’s also an age-appropriate response to a well-worn scenario that’s continuing to play out in the media as well as in the homes of this Rust Belt city of 18,000.

The facts are familiar. A teenage girl—vulnerable and the object of ridicule—drinks too much. A group of boys, including one she believed would protect her, instead take advantage of her. She wakes up unclothed and has little memory of what occurred. The rumor mill kicks in. She is humiliated and blamed. There is evidence of a cover-up, talk of conspiracies and conflicts of interest. The young men, celebrated high school athletes with promising futures, are publicly tried, convicted and ultimately jailed. Months later, after the media circus ends, the teenagers and their families are left behind—far behind—to try to pick up the pieces.

We have been here before. Consider the nearly identical cases that befell the towns of Glen Ridge, New JerseyRichmond, California; and Cleveland, Texas.

The story has been updated to fit the times. Now there are text messages, social media, online video, and the sex offender registry. Technology has indeed advanced—almost beyond our powers of comprehension—but the narrative never changes. Why is it that our system of justice perpetually chews up and spits out rape victims, while our sons continue to be empowered through the abuse and defilement of their female peers?

As a society we chip away at the edges of these problems, but the pathology remains. We criminalize underage drinking. We demonize adolescent sexuality. We label defendants and assess culpability. Yet, who is served by such responses?

A girl is left profoundly damaged, not only by the crime itself but by the harsh scrutiny and ostracism of her community. As prosecutor Marianna Hemmeter said, “[The juveniles] treated her like a toy.” In a culture permeated by images that objectify women’s bodies and characterized by the commodification of sex, this is hardly surprising. We are a society that is still struggling to define the act of rape and to draw a clear line between sex and violence in ways that are commonly accepted and understood. Recent research from the Centers for Disease Control reveals that nearly twelve percent of high school girls have been sexually assaulted; over forty percent of female sexual assault victims were raped before age 18.

Meanwhile, boys are punished, put in cages and stigmatized, but what lessons do they learn? Spending a year or two warehoused in a juvenile prison is unlikely to help. Data out of Ohio shows that low-risk sex offenders who received community-based treatment, designed to provide more effective rehabilitation and save money, were less likely to recidivate than those who were incarcerated with a general population of high risk young offenders.

The narrative, however, remains the same. The victim’s mother contends that Ma’lik Richmond and Trent Mays, his 17-year-old codefendant, lack a moral code. Judge Thomas Lipps asserts that they will learn from this experience and change for the better. Ohio Attorney General Mike DeWine vows to continue the investigation, convene a grand jury, and hold others responsible—parents, coaches, and those who stood by and did nothing. It is likely that the victim must testify again, reliving the fear that she felt upon waking up naked in a strange house, not knowing what to think or what had happened.

It is, despite our best intentions, a tragedy. The lives of these young people may not be over, but their innocence has been forever extinguished. Today it is in Steubenville. Tomorrow is it in my town … or in yours.

This op-ed also appeared at The Good Men Project and the Juvenile Justice Information Exchange.  

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Posted in Delinquency, Education, Gender, Juvenile Court, Juveniles, Media, Sentencing | 1 Comment