Last Thursday, a bipartisan group of Senate lawmakers unveiled a revised version of a criminal justice reform plan that was approved by the Senate Judiciary Committee earlier this year. Although lawmakers and media sources have referred to this document as a general criminal justice reform bill, the proposed legislation, especially after being amended to appeal to Republican senators, is far too narrow in its scope and does not go far enough to address the discriminatory practices of the justice system that disproportionately impacts men of color in this country.
Currently, the proposed legislation grants judges the discretion to give lesser sentences than the federally-mandated minimums. This bill will also eliminate mandatory life sentences for three-time, nonviolent drug offenders while creating programs to help prisoners successfully reenter society. Of course, further amendments to sway Republican senators could be passed before the bill is approved.
While a step in the right direction, the proposed new law fails to fully revise racially discriminatory mandatory minimums like the 18-to-1 disparity between the amount of crack cocaine and powder cocaine needed to trigger certain federal criminal penalties. Giving judges more discretion does not guarantee that such laws won’t continue to put black offenders behind bars far longer than their white counterparts. The bill would certainly eliminate de jure mandatory minimums, but there will still exist de facto minimums, especially when laws such as the Fair Sentencing Act of 2010 continue to validate such disparities.
The bill also seeks to create programs to “help prisoners reenter society” without addressing the root causes for post-prison disenfranchisement. When former prisoners are released from jail, their criminal record relegates them to second-class citizens, allowing legal discrimination against them in employment, access to education and public benefits. Criminal records strip former inmates of their right to vote in some states. Individuals put behind bars for minor drug offences become ineligible for public housing and food stamps. For these so-called felons, there is little hope for reintegration into mainstream society because of all the stigma that the “felon” label carries. A rehabilitation program does not help them — what we need is legal reform at both the state and federal level.
Perhaps the biggest failure of the bill is that it looks at criminal justice reform in terms of sentencing and rehabilitation, or the start and the end of one’s experience with the criminal justice system. The problems in our criminal justice system are more far-reaching. For instance, we are currently facing a serious crisis in our public defender system at both the federal and state level. The proposed law does not consider an individual’s journey through the justice system, which includes important factors such as the waiting period for or access to representation.
Although some states, like New Hampshire, have functioning public defenders’ offices thanks to the efforts private lobbyists and councils, most states are not so lucky. A staggering number of defendants will be arrested, sentenced and then sent to prison or put on parole without legal representation. Approximately 80 percent of criminal defendants are indigent and unable to hire a lawyer; thus, they are forced to rely on overburdened public defenders who are unable to provide meaningful representation to their clients.
Often juggling hundreds of clients, public defenders find themselves in a miserable situation, which is shockingly apparent in New Orleans. There, funding shortages and staff attrition have forced the public defender’s office to place new clients on a waiting list. Usually poor, often of color and facing severe sentences, these waitlisted clients will be forced to navigate the legal system on their own. The American Bar Association has found that individuals lacking counsel all too often plead guilty when they are in fact innocent, simply because they don’t understand their legal rights and the legal process.
Louisiana is not alone in its failure to provide proper funding for indigent defense; countless states from New York to Florida have faced severe public defender crises in recent years due to deficient funding and legislative neglect in securing more funding. Underfunding has created a system riddled with hidden costs such as application fees for public defenders, fees that are often too high for indigent defendants.
Louisiana is unique, however, in that its solution to the funding problem was to make indigent defendants a primary source of funding. In Louisiana, public defenders are only guaranteed their salaries when defendants found guilty are forced to pay legal fees, creating a direct conflict of interest.
This crisis extends to the federal level at which cuts to the federal judiciary’s budget have crippled the public defenders’ system. Cuts in 2014 led to court delays, staff reductions reaching up to 50 percent at federal public defenders’ offices, a lack of funding for expert witnesses and cuts to travel budgets. The federal budgets for 2015 and 2016 increased the budget only modestly.
At both the state and federal level, we need to spend more money on our public defenders and write out legal loopholes that place the monetary burden on indigent individuals. Our constitution promises legal representation, but has failed to make good on the promise for our most vulnerable populations: poor Americans of color who end up spending more time in our prisons than they deserve to.
