ANOTHER AREA TO CONSIDER: access to a decent defense. Problems in public defender systems are obvious to those who spend time in courtrooms. Jeff Ware, now 58, learned in 2007 the difference a good attorney can make. Louisiana authorities charged him with child endangerment when he spanked a nephew under his care. He spent $4,000 to hire an attorney and, while waiting for his hearing, Ware saw three benches full of defendants waiting to see a public defender.

A judge eventually dismissed the case against Ware, but not before prosecutors had offered a plea deal of three years in jail. Having a good attorney was critical to avoiding jail time: “I was thankful I could pay the $4,000.”

Many of those charged with crimes can’t afford that. They look for a public defender, but in Louisiana a defendant must pay a $40 application fee and then compete for representation from a small pool of public defenders. A 2017 study found Louisiana needs 1,400 more public defenders, but the state doesn’t have the funds to pay them. To meet Louisiana’s own standards, the Louisiana Public Defender Board needs a minimum of $125 million, compared with the $34 million allocated for 2017.

In New Orleans, overworked public defenders spend an average of seven minutes with their clients before trial, according to the ACLU. New Orleans’ 50 public defenders manage over 22,000 cases per year. The situation has grown so dire that Derwyn Bunton, the city’s chief public defender, says the office is now refusing to represent felony cases: “A poorly resourced lawyer can do irreparable harm.”

One reason Louisiana is so understaffed: It funds its public defender system through a “user fee.” When a court finds a defendant guilty, even if it’s the result of a plea bargain, his court fee includes a $45 charge sent to the local public defender’s office. But the funding is not enough, and opponents of the system say it brings in too little revenue and rewards public defenders for losing cases.

District attorneys receive funding directly from the state, and some say public defenders should be on a level playing field with them, but that’s not a popular position. Meanwhile, New Orleans’ public defenders maintain a donation page to help keep the office open.

One proposal: In Comal County, Texas, officials are testing a program to allow defendants to choose their own public defenders. Proponents say allowing lower-income defendants to be more involved with their own process could lead to a better defense. But that still doesn’t get at the issue of the supply of public defenders. In some locales, judges resort to directing reluctant local attorneys to represent poor defendants.

One hope: Organizations like Gideon’s Promise in Atlanta are seeking to attract more law students to serving the poor. The organization has partnerships with top law schools, such as Harvard and the University of Chicago, with the goal of attracting graduates who have a passion to serve the poor. The schools financially support their graduates during their first year as a public defender. Last summer, Gideon’s Promise trained and launched the careers of 17 new public defenders through this program.

IN LOUISIANA, expensive bail is another hurdle awaiting poor defendants. A judge set bail for two homeless men arrested for panhandling—$200 maximum fine—at $1,000. In March, attorneys for the men filed a suit alleging that judges set bail high based only on the misdemeanor, without considering whether the men would appear or if they are a risk to the community. “Money bail should be a last resort,” said Katie Schwartzmann, attorney for the men.

Bail reform is also an issue in Texas, where the state Judicial Committee reports that 3 of every 4 jail inmates are awaiting trial. For those with a previous record, bail fees can quickly escalate. Texas Chief Justice Nathan Hecht recounted the case of Angela Jessie, 49, who had previously pleaded guilty to shoplifting and was arrested again for shoplifting $105 worth of clothing for her grandchildren: She “sat in jail for almost two months because bail was set at $150,000. Was she a threat to society? No.”

That certainly taught her a lesson—but was it right for her bail to be set at the same level as that of child sex offenders? Hecht sees the current system as punishing the poor before conviction. “These are people who would go back home, try to hold on to their jobs, try to hold on to their families, come back for their court appearance, try hopefully to get their lives straightened out. But they wouldn’t be a burden on society and on the taxpayers.”
With the backing of the chief justice, the Texas Legislature is currently considering a bill to overhaul the existing system. If the court determined a defendant to be a low risk, nonviolent offender, the court would release him on a personal recognizance bond—a promise that he will appear in court on a specified date.

The proposed bill requires the use of a risk-analysis system to determine whether the defendant is a threat to others and what his probability of appearing on his court date is. Judges and magistrates would use a checklist that considers negative factors such as a defendant’s criminal record, but also positive ones such as employment history and whether the defendant is a primary caregiver to a child. By state law, bail is assigned to ensure the defendant returns to court and to protect the community. In most Texas jurisdictions, bail is calculated on a set schedule based only upon the offense and previous convictions.

So far, studies in four states show the risk-analysis approach seems to be working. A 2013 study of Colorado’s bail systems found defendants on unsecured bonds appeared at trial at the same rate as those who paid to make bail.

In Texas, reformers note that the state’s taxpayers paid $900 million last year to hold individuals awaiting trial. Reformers argue that releasing low-risk, nonviolent offenders and increasing pretrial supervision would save taxpayers $190 million annually. But bail bonds are a lucrative business—bondsmen charge a nonrefundable 10 percent fee to post bond—and misdemeanor offenses represent a majority of a bondsman’s work.

It’s not surprising that professional bail bondsmen are leading the opposition to reform: “The whole industry will be out of business,” warned Harris County bail bondsman Rodney Vannerson. He and others contend the system already provides a fix. Michael Whitlock of the bond agency American Surety says “every state grants a judge the authority to release those individuals [who cannot afford bail] on their own recognizance.”

Equipping judges and magistrates to use this authority wisely is the central point of the new legislation. Studies show that using a tested risk assessment checklist helps judges make a better decision about whether a defendant is a high or low risk. The current system does not require a risk assessment, only that the courts make bail available. Texas state Sen. James Whitmire, D-Houston, says risk assessment would be safer for the community: Currently, he says, defendants with resources can simply post bond and return to criminal activity. “So there’s no risk assessment or no public safety factor in the issuing of a financial bond.”

FOR FORMER INMATES like McCary, issues such as bond and bail are far behind him, but his youthful record still haunts him. He’s found help from friends at Reclamation Church, a church that reaches out to people with particularly difficult—and often overlooked—needs. He says he’s worked hard to stay straight for the two decades since his crime, but isn’t sure it will ever be behind him. “What is acknowledged, what is accomplished when you are released from jail?” he asks. “I’ve now strived for virtue for years—where is the acknowledgment of that?”

–Read more stories on criminal justice reform in this issue of WORLD: "Insider injustices" / "New convictions"

Forensics debate

Commission closes even as concerns grow about courtroom science

Back in 1982, a jury convicted Navy sailor Keith Harward, 26, of murdering Jesse Perron and raping Perron’s wife. The case largely rested on the testimony of two forensic scientists who said that bite marks on the rape victim matched Harward’s dental records to a “medical certainty.” Harward narrowly escaped the death penalty and received a sentence of life in prison. Studies have recently undermined the reliability of bite-mark analysis, saying it is difficult to tell whether a bite even comes from a human or not. But in many courts in the United States, prosecutors still use bite-mark analysis as if it is scientifically reliable. Last year, after 33 years in prison, Harward was exonerated based on new DNA evidence from the rape kit in the case. The assailant was actually Jerry Crotty, a fellow sailor who had died in prison in 2006. “When you use bad science to convict somebody, the perpetrator continues to commit crimes,” said Harward at an April meeting of the National Commission on Forensic Science. “So what good are you doing?”

The commission where the newly freed Harward spoke began four years ago, an effort from the Department of Justice (DOJ) in conjunction with the National Institutes of Standards and Technology to set new standards for forensic science. The commission was made up of state and local forensic scientists, academics, attorneys, and judges.

In April, new Attorney General Jeff Sessions announced he was disbanding the commission, whose charter was up for renewal. In its place will be an in-house forensics adviser at the DOJ. Criminal justice reform advocates like the Innocence Project protested, while the National District Attorneys Association gave Sessions plaudits.

In announcing the decision to end the commission, Sessions noted that “the vast majority of forensic science is practiced by state and local forensic laboratories and is used by state and local prosecutors.” This follows a theme of Sessions’ announcements so far, removing the DOJ from matters he considers local concerns and undoing some of the criminal justice reforms the Obama Justice Department sought to initiate. He made similar comments about deferring to local oversight in April, when he ordered a review of all DOJ consent decrees—reform agreements with police departments where the DOJ finds patterns of constitutional violations.

Most wrongful convictions that are later overturned through DNA evidence come as a result of bad witness or victim identification, according to the Innocence Project, but in second place is the “misapplication of forensic science.” Most recently scientists have questioned aspects of bite-mark analysis, fingerprint identification, and the way crime labs process evidence.

“For those of us who are pro-life and believe that human beings are created in the image of God, we should want to make sure that any criminal conviction that denies a person their life and liberty is accurate and correct,” said Craig DeRoche, who leads the criminal justice reform arm of Prison Fellowship. DeRoche didn’t have a position on the continuation of the commission, but agreed on the importance of raising national forensic standards.

Over its short tenure the forensics commission ordered research on the effectiveness of some of the most common forensic tools. And federal labs adopted the commission’s recommendations, but those recommendations hadn’t filtered down to state and local labs. The forensics commission had its final meeting in April, just after Sessions’ announcement. Harward, with his Southern drawl, spoke.

“There should be some way that experts have to meet a very high bar,” he said about forensic scientists. “Because you end up ruining people’s lives. And in my case, I’m not the only one that was ruined.” Harward began to cry. “The most important victims of this were my parents. The only other time I saw my father cry was when he was on that stand begging for my life. And nobody should have to go through that, ever.” —Emily Belz