In 2014, the Civil Action Practice handled 9,000 legal matters, benefiting more than 15,500 people. The practice’s major achievements for that same period include preventing the evictions of more than 300 clients and their families, resulting in over $11 million in shelter cost savings; securing access to stable, affordable housing for 48 families; preserving jobs or employment licenses for the breadwinners of 258 families; and connecting clients with cash and noncash benefits valued at over $2.5 million.
Meanwhile, Bronx Defenders immigration advocates provided advocacy to clients whose criminal court involvement might impact their immigration status and also advocated on behalf of individuals facing deportation in immigration court. In 2014, Bronx Defenders immigration attorneys and legal advocates prevented the deportation of 357 clients and obtained lawful immigration status for 29 clients. In addition to advising clients about the immigration consequences of their criminal or family court proceedings, The Bronx Defenders has, since 2014, represented detained immigrant clients facing deportation through the New York Immigrant Family Unity Project, the first universal representation program in the country for immigration court proceedings.
Since President Trump’s inauguration, immigration-related concerns have become of paramount importance to criminal-court-involved clients. One of several executive orders issued in early 2017 by the Trump administration prioritizes the removal of seven categories of immigrants, including those who have been convicted of a crime, those who have been charged with a crime but not yet convicted, and those who have “committed acts that constitute a criminal offense”—broad descriptions that encompass nearly all of The Bronx Defenders’ clients. As of spring 2017, New York City remains a sanctuary city, meaning that the New York City Police Department and the Department of Corrections will not automatically detain noncitizens for Immigration and Customs Enforcement. Between 2003 and 2015, Immigration and Customs Enforcement officials were stationed at Rikers Island, the largest of the city jails, to monitor and detain non-citizen inmates. Depending upon the Trump administration’s promise to withhold federal funding from sanctuary cities, it is possible that New York’s status as a sanctuary city could change, resulting in the arrest and detention of many more noncitizen residents and Bronx Defenders clients.
Bronx Defenders social workers frequently assist young clients with mental health needs or developmental disabilities, struggling with substance abuse and addiction, or facing serious charges (homicide, arson, and serious sex offenses trigger mandatory social work referrals). In contrast to clinical social workers, whose primary allegiance might be to the courts or to an outside agency, social workers at The Bronx Defenders are embedded in legal teams. This means that they are bound by attorney-client privilege and their primary goal is to advance clients’ interests as part of holistic legal strategies. Social workers perform assessments, engage in crisis interventions, secure placements for clients in treatment programs, testify in court, and compose prepleading and sentencing reports. Social workers are on call for arraignments and are thus able to promptly assist with interviewing clients and advocating for their release. Statistics from The Bronx Defenders’ Arraignment Checklist indicate that in 2014, more than six hundred clients were immediately referred for social work support following their first meetings with their criminal defense attorneys, while many more become involved with social workers as their cases progress, crises arise, referrals to community-based treatment or services are needed, or mitigation reports become essential.
Finally, The Bronx Defenders pursues systemic reforms that more broadly seek to restrict gateways to incarceration. The office maintains a robust Impact Litigation Practice, which has co-counseled cases such as Ligon v. New York, a major class action that established the unconstitutionality of the New York City Police Department’s Operation Clean Halls program, whereby officers would stop, frisk, and often arrest people inside or near apartment buildings. The Bronx Defenders Organizing Project was active in the campaign against stop-and-frisk and continues to advocate for systemic change in the New York City criminal justice system. Additionally, as previously mentioned, Bronx Defenders staff members regularly conduct Know Your Rights workshops for members of the community so that individuals are empowered to safely and respectfully assert their legal rights when interacting with the police. In 2014 alone, Bronx Defenders organizers and advocates reached more than nine hundred people through twenty-eight workshops. These organizing projects have the potential to be a very powerful tool in combating mass incarceration through primary intervention—when community members are knowledgeable about their legal rights, they are less likely to be swept up into the criminal justice system to begin with, and they become active participants in the political process that so often tries to silence their voices.
Holistic Defense and Tertiary Intervention
Joel is a Bronx resident who came into Community Intake seeking help obtaining food stamps for himself and his children. The Human Resources Administration had denied his application for food stamps because his children’s mother was collecting benefits on their behalf, even though the children lived with him. With help from The Bronx Defenders’ Community Intake team, Joel successfully obtained food stamps and was able to get five months of retroactive benefits. While awaiting the outcome of his appeal, Joel was able to use The Bronx Defenders’ food pantry and community-wide Thanksgiving meal to provide for his kids. The Bronx Defenders had previously represented Joel in two criminal cases, so Joel knew that he could again seek help from the advocates there.
By providing clients with seamless access to a variety of services, The Bronx Defenders creates a legal home: a single destination that people can visit when they require assistance with legal matters or related issues. Bronx Defenders clients know that they can return to the office long after the formal conclusion of their cases to receive quality support and advocacy.
People who have come into contact with the criminal justice system—particularly people who have experienced incarceration—often have limited resources available to navigate the obstacles they face and little knowledge of which organizations might be able to help them. To make matters worse, many enmeshed penalties affect the issues most critical for people to achieve stable lives: housing, public assistance, employment, and family unity.
For formerly incarcerated people who are on parole, and therefore still under the control of the criminal justice system, having access to community and social services is particularly crucial. People released to parole are generally subjected to a number of onerous conditions, including but not limited to having frequent meetings with a parole officer, finding stable employment and housing, submitting to drug testing, and avoiding police contact.23 Unsurprisingly, given the enmeshed penalties that accompany criminal justice involvement, many people are unable to meet the conditions of their parole and are therefore reincarcerated for parole violations. In 2009, 35 percent of prison admissions were for technical parole violations such as failure to report to a parole officer, rather than as the result of a new criminal conviction.24 When public defender offices can function as clients’ legal homes, they are able to provide needed advice and support long after the formal conclusion of their cases, in addition to providing social services and facilitating tertiary interventions for people struggling with the chronic effects of incarceration and court involvement.
At The Bronx Defenders, much of the office’s status as a legal home comes about informally through clients’ ongoing relationships with their teams of advocates. However, staff members also take deliberate steps to make the office a place where clients feel comfortable returning in the future. The Bronx Defenders’ Organizing Project serves not only as a vehicle for pursuing systemic change but also as a setting for discussions about experiences with the criminal justice system. Meanwhile, social workers and parent advocates organize initiatives such as Focus on Fathers, a discussion and support group for fathers involved with the court system, and Healthy Mothers Hea
lthy Babies, a program that, as previously mentioned, connects pregnant clients with resources that help them give birth to healthy children and maintain unity of their families. Each year, The Bronx Defenders also hosts a community block party, a Thanksgiving meal, and a Celebration of Families for clients and community members, which provide opportunities for Bronx residents to get to know The Bronx Defenders and access resources as needed. Additionally, the physical space of the community reception area—with comfortable couches, bright and cheerful decorations, a client library, and toys for small children—sends a clear and inviting message to visitors.25 Clients and community members are welcome to visit The Bronx Defenders’ office on weekdays between 9:00 a.m. and 6:00 p.m., with or without appointments. Outside of those hours, Bronx Defenders attorneys staff a twenty-four-hour legal emergency hotline.
In 2015, more than three thousand people arrived at the doors of the Bronx Defenders’ community reception space seeking assistance. Approximately 21 percent of visitors met with Bronx Defenders advocates beyond the Community Intake Team, roughly 19 percent received referrals to outside organizations, and over half received brief advice, general legal information, or one-time services. Two-thirds of visitors who met with members of the intake team sought assistance related to civil penalties, which often present significant obstacles to reentry following incarceration.
Many of the one-time services provided by the Community Intake Team are simple but effective measures that ease the burden of enmeshed penalties. For example, members of the Community Intake Team are able to review criminal records for errors and help people submit corrections so that erroneous or sealed information does not become an obstacle to obtaining employment and housing. Intake advocates are also able to screen clients to determine whether they are eligible for public benefits (including food stamps, Supplemental Security Income, and unemployment) and can help clients obtain certificates of good conduct or rehabilitation, documents that are necessary for obtaining employment in certain professions following periods of incarceration. Bronx Defenders staff members also host legal clinics in the community reception area on matters such as tax preparation or how to file a notice of claim, which preserves an individual’s right to sue government officials and agencies for damages. Drawing upon its experience providing these types of services and counseling people with past court involvement, The Bronx Defenders created ReentryNet.net, an online clearing house for information related to enmeshed penalties and reentry following incarceration, and publishes a guide for attorneys and advocates on the civil legal collateral consequences of arrests and convictions.
Approximately 27 percent of people who met with the Community Intake Team in 2014 had previously been represented by The Bronx Defenders in separate matters and returned to the office for help with new issues. This figure demonstrates not only that former Bronx Defenders clients feel that the office is their legal home and are comfortable returning for help, but also that thousands of community members in the South Bronx with no prior interactions with The Bronx Defenders feel the same way about the office. Both insights establish that when public defenders broaden the scope of their advocacy and serve as legal homes, they are able to reach vulnerable populations that might not otherwise receive assistance.
Conclusion
Public defenders play a crucial role in reducing mass incarceration through their zealous representation of individual clients. By advocating thoroughly and effectively on behalf of clients whose liberty may be at stake, public defenders help clients minimize or avoid incarceration, thus reducing inflow into the prison or jail system.
But holistic defenders are even better equipped to combat the complex causes and consequences of criminal justice involvement because they are able to look beyond the narrow confines of a criminal case. Practicing holistic, interdisciplinary advocacy compels defenders to consider not only the enmeshed penalties that accompany criminal justice involvement, but also the larger systemic issues driving entire communities—particularly poor communities of color—into the justice system. Armed with a broader understanding of these forces, as well as robust community support, holistic defenders can be the most effective advocates for individual clients while simultaneously pursuing systemic changes at the policy level.
As we consider a more hopeful future—one in which mass incarceration is no longer a defining feature of the American criminal justice system—we must seek to better support public defense by fully funding state and local defender systems and by encouraging defenders to adopt the holistic model. We now have clear evidence that holistic advocacy enhances public defenders’ work and can play a critical role in facilitating effective primary and tertiary interventions against the systemic injustices of mass incarceration.
Notes
1. The names Renée and Joel used in this chapter’s examples are pseudonyms.
2. Robin Steinberg, “Heeding Gideon’s Call in the Twenty-First Century: Holistic Defense and the New Public Defense Paradigm,” Washington and Lee Law Review 70 (2013): 968; Sarah R. Berson, “Beyond the Sentence—Understanding Collateral Consequences,” National Institute of Justice Journal 272 (September 2013): 25.
3. While the labels “enmeshed penalties” and “collateral consequences” are interchangeable, we use the former term in this chapter to emphasize how closely these punishments are intertwined with criminal sanctions. McGregor Smyth, “‘Collateral’ No More: The Practical Imperative for Holistic Defense in a Post-Padilla World . . . Or, How to Achieve Consistently Better Results for Clients,” St. Louis University Public Law Review 31 (2011): 147–48.
4. Jeremy Travis, “Invisible Punishment: An Instrument of Social Exclusion,” in Invisible Punishment: The Collateral Consequences of Mass Imprisonment, ed. Marc Mauer and Meda Chesney-Lind (New York: The New Press, 2002), 17–25.
5. American Bar Association, “National Inventory of the Collateral Consequences of Conviction,” http://www.abacollateralconsequences.org (last visited April 14, 2015).
6. Lauren E. Glaze and Danielle Kaeble, “Correctional Populations in the United States, 2013,” Bureau of Justice Statistics, Department of Justice, 2014.
7. Gary Fields and John R. Emshwiller, “As Arrest Records Rise, Americans Find Consequences Can Last a Lifetime,” Wall Street Journal, August 18, 2014.
8. Michael Pinard and Anthony C. Thompson, “Offender Reentry and the Collateral Consequences of Criminal Convictions: An Introduction,” NYU Review of Law and Social Change 30 (2006); Gwen Rubinstein and Debbie Mukamal, “Welfare and Housing—Denial of Benefits to Drug Offenders,” in Invisible Punishment: The Collateral Consequences of Mass Imprisonment, ed. Marc Mauer and Meda Chesney-Lind (New York: The New Press, 2002), 40–46.
9. Steinberg, “Heeding Gideon’s Call”; Smyth, “‘Collateral’ No More.” The Supreme Court affirmed the responsibility of defense attorneys to address enmeshed penalties in Padilla v. Kentucky, 559 U.S. 356 (2010).
10. For a more in-depth history of the Bronx Defenders and holistic defense, see Steinberg, “Heeding Gideon’s Call.”
11. Bronx Defenders, “The Center for Holistic Defense Training and Technical Sites,” December 18, 2015, http://www.bronxdefenders.org/the-center-for-holistic-defense-technical-and-training-sites.
12. Sentencing Project, “Fact Sheet: Incarcerated Women and Girls,” April 26, 2017, http://www.sentencingproject.org/wp-content/uploads/2016/02/Incarcerated-Women-and-Girls.pdf.
13. William Glaberson, “Justice Denied,” New York Times, April 30, 2013.
14. Bronx Defenders, “No Day in Court,” 2013, http://www.bronxdefenders.org/wp-content/uploads/2013/05/No-Day-in-Court-A-Report-by-The-Bronx-Defenders-May-2013.pdf.
15. New York City Criminal Justice Agency, “Annual Report 2013,” available via the New York City Criminal Justice Agency online publications library at: http://www.nycja.org/library.php.
16. Office of the Chief Clerk of New York City Criminal Court, “Criminal Court of the City of New York: Annual Report 2013,
” available at http://www.courts.state.ny.us/COURTS/nyc/criminal/2013%20Annual%20Report%20FINAL%2072214.pdf; New York State Division of Criminal Justice Services, “Adult Arrests: 2005–2014 (Bronx),” available at http://www.criminaljustice.ny.gov/crimnet/ojsa/arrests/Bronx.pdf.
17. Lindsay Devers, Bureau of Justice Assistance, “Plea and Charge Bargaining: Research Summary,” 2011, available at https://www.bja.gov/Publications/PleaBargainingResearchSummary.pdf.
18. The Bronx Freedom Fund, Second Annual Report, 2015, 2–4, available at http://static1.squarespace.com/static/54e106e1e4b05fac69f108cf/t/5681561eb204d52319b86854/1451316766890/2015+Annual+Report.pdf.
19. Ibid., 4.
20. Robin Steinberg and David Feige, “The Problem with NYC’s Bail Reform,” Marshall Project, July 9, 2015, available at https://www.themarshallproject.org/2015/07/09/the-problem-with-nyc-s-bail-reform#.pcTOR7hLE (last visited January 30, 2016).
21. Bronx Defenders, Arraignment Checklist, http://www.bronxdefenders.org/programs/checklist-project.
22. While a small number of the office’s Criminal Defense Practice clients come to the Bronx Defenders through community intake, the vast majority of clients are assigned to their attorneys at arraignment. The office is contracted by the City of New York to staff arraignments in the Bronx Criminal Court on certain days of the week and represents every individual arraigned during its shifts who cannot afford to pay for an attorney and for whom the office has no conflict of interest.
23. Christine S. Scott-Hayward, “The Failure of Parole: Rethinking the Role of the State in Reentry,” New Mexico Law Review 41 (2011): 421.
24. Ibid., 437.
25. Winnie Hu, “In South Bronx, Legal Aid and a Shoulder to Lean On,” New York Times, February 27, 2013.
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