"Where a white legal professional might see stats, I see people. Because, after all, the systemic issues that affect my clients have also affected me."
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In the mid-1990s, Jeffrey Clark and Garr Keith Hardin were wrongly accused of murder, and they were sentenced to life in prison. After 20 years spent behind bars for a crime they did not commit, they were exonerated. But rather than leaving these men to live out their lives in peace, it was announced that two prosecutors would try both men once again for murder, while adding a perjury charge for Clark due to the admission of guilt he was essentially mandated to make while seeking parole.
This is not an isolated case.
In 1991, Joseph Gordon was convicted for murdering his 16-year-old son’s abuser, despite ample good reason to believe Gordon did not commit the crime. Today, after having served more than his minimum 25-year sentence and demonstrating behavior that should make him a prime candidate for parole, he has been forced to remain incarcerated. The parole board’s rationale? His continued assertion of his innocence.
Many people – including myself – argue that our current form of incarceration (highly abusive human caging) is an outmoded, cruel and counterproductive response, even to very real wrongdoing. But in the case of wrongful conviction, there is even less room for debate: The egregious toll taken on tens of thousands of lives should shock every conscience and weigh on every American soul.
The stories of Clark, Hardin and Gordon also illustrate a second, more pernicious, injustice: Too many prosecutors (who hold critical positions of power in our criminal legal system) are more interested in using their power to win convictions than in delivering truth. The result? Wrongful convictions that disproportionately impact Black and Brown Americans.
I wish I could argue this constitutes a minority of prosecutors. But the truth is, while working as a public defender in California and later in the Bronx, I have found this win-at-all-costs prosecutorial attitude is a lot closer to the norm than anyone would like to admit.
Because of the appalling nature of wrongful convictions — and recent media attention tied to tragic cases such as Clark, Hardin and Gordon’s — policymakers from both sides of the political aisle have been grappling with how to reduce the number of wrongful convictions in this country. The leading options include expanding access to post-conviction DNA tests, barring testimony from jailhouse informants and finally creating accountability for dishonest prosecutors (who in almost all cases see no consequences for stealing the lives of their Black and Brown constituents) and police.
These solutions are sensible, necessary and urgent. But they don’t go far enough to help people who, right this minute, are entangled in our bureaucracy of punishment. Nor do they adequately address the complex circumstances leading to wrongful conviction.
This is, as renowned experts like The Innocence Project and the National Registry of Exonerations will tell you, because wrongful convictions are usually based on unique combinations of circumstances – a mix of racism, inadequate counsel, bad science, perjurious testimony, prosecutorial misconduct and police misconduct – making it difficult to create a single policy fix that can address all these root causes in one fell swoop.
There is one promising solution, however, that policymakers have largely forgotten in their laundry list of policy remedies, and that is increasing investment in public defense.
The people best situated to stand between ordinary folks and the nightmare of wrongful conviction are public defenders, who serve over 85 percent of accused people and have the confidential access needed to build an intimate understanding of their cases.
But the unfortunate reality is that public defenders are often so overburdened they cannot devote the time and attention needed to fully unravel the aforementioned combination of circumstances on a case-by-case basis. Deprived of resources, investigatory staff and more, they’ve been denied the tools they need to stand between wrongful prosecution and the ultimate horror of wrongful conviction.
There is hope, however.
The national conversation around how we allocate public safety dollars has created a watershed moment. For the first time, lawmakers are realizing that supportive, restorative resources, such as well-funded public defenders, are more effective at preventing harm than police and prosecutors will ever be in responding to it.
In my own work with Partners for Justice (PFJ), we are leveraging analysis that shows defending people across all the complex challenges they face (including employment, health, education and benefits work) diminishes the use of incarceration without any negative impact on public safety.
It is evident that when public defenders have adequate time and resources, they can bring their clients’ full humanity to bear and bring forth detailed arguments that force even the most hard-charging prosecutors to conduct a more thorough review of cases. This ultimately reduces incarceration and wrongful convictions.
Moreover, when public defenders have access to robust investigative support, they are also better able to put together the pieces to compellingly show their client’s innocence earlier so that people wrongly accused of serious crimes don’t spend months upon months confined in a cage. This legwork is, unfortunately, a necessary replacement for prosecution and police investigation which is all too often shoddy. On countless occasions, defense investigators on my team were able to find crucial exonerating video or eyewitness evidence police never even bothered to seek (or lied about seeking).
In other words, whether a bad prosecution is based on bad actors on the law-enforcement side, bad science, corrupt witnesses or incomplete investigation, the best person to prevent the ultimate harm of wrongful conviction is a strong defender. And, in all cases, a well-equipped defense agency with the capacity to work collaboratively across disciplines is not just a constitutionally mandated resource – it’s an engine of liberty, opportunity, economic mobility, equity and safety for the whole community.
This means that one solution – investing in and expanding public defense – can defeat some of the worst atrocities of our legal system, such as wrongful convictions, and also increase the greater public wellbeing.
On the ground, this looks like a public defender finding key evidence to ensure a wrongful conviction never takes place. It also looks like that same defender having the bandwidth to connect their client struggling with substance abuse to treatment programs. Or get their young client the documents, immunizations and advocacy they need to get back in school after a brush with the law. Or ensure that a client is able to find meaningful employment after an arrest has destroyed their livelihood.
So yes, investing in public defense will undeniably help reduce wrongful convictions. But it is also a scalable solution with public-safety benefits far beyond the bounds of the horror of wrongful conviction.
Every dollar spent on public defense ensures that the people most in need of complex, robust support – whether because they have truly caused harm in the community or because they are being unconscionably harmed by our machinery of punishment – receive the tailored solutions they need to keep their present and future intact.
If legislators, policymakers and philanthropists want to truly increase safety, dismantle mass incarceration and ensure that cries of innocence are heard, we must ensure that no one enters the courthouse without a lawyer who has been given the tools needed to fully protect their client – come what may.
Emily Galvin-Almanza is co-founder of the leading national nonprofit Partners for Justice (PFJ) and is an expert thought leader on the role of public defense in the criminal legal space.
Published on Dec. 18, 2021 at https://thehill.com/changing-america/opinion/586305-to-prevent-wrongful-convictions-invest-in-public-defense-solutions/
