Warped Incentives: Five Disturbing Things About Our 'Justice' System, Explained by a Public Defender
Drug policy reform and broader criminal justice reform don’t just require that we change laws. We also need to change the systemic flaws and inbuilt biases that frequently lead to laws being executed in the most vindictive ways imaginable.
We wanted someone on the inside to tell us frankly about the realities of a system in which, all too often, the real villains are prosecutors and judges. A public defender in New York City agreed to speak with The Influence on condition of anonymity. The descriptions below are his—and it sounds even worse than we thought.
1. The Prosecutors Are Vindictive Largely Due to a Process of Self-Selection.
Each New York borough has a different elected district attorney; the people under them do all the prosecuting, acting as the attorneys for the state government and deciding on whether or not to bring charges. “They’re kind of like the good guys on CSI,” our source says. “It’s their job to ‘put away the bad guys.'”
I asked him how and why people become state prosecutors, and how these circumstances affect the way they do their jobs.
“Some people who do it, for them it’s a job like any other. They want to get trial experience, or they think of themselves as good people locking up the bad guys. Some people do it because it runs in their family … They’re not paid that much. The salary is roughly comparable to public defender.”
“But keep in mind, state-level DA’s offices are not particularly prestigious. They have a certain power, but people don’t generally go to these offices from top-tier law schools. Maybe a quarter come from top-tier law schools. That’s not a bad ratio, but the point is that a lot of people who do this just needed a job.”
“A lot of people go into it unaware of how shitty the day-to-day experience is unless you’re passionate about the cause. They’re overworked and hazed in the first couple of years, and not doing much cool stuff. The attrition rate is really, really high. The problem is that the people who survive to go onto felonies are extremely gung-ho—they’re the ones who have self-selected. They really have ambition or drive or passion for it. And those people tend to be very dangerous.”
I asked the public defender if he could remember any specific incidents of the vindictive behavior that results.
“There’s all sorts of things. It is completely common for prosecutors to withhold information that could help the defense—information that they’re obligated to turn over. In one case, the only reason we got the favorable information [that turned the case] was that the case was reassigned to another DA right before trial. She looked over the file—fortunately she was very ethical—and she said, ‘By the way, did you know this big thing?'”
“Without going into specifics, it was a real game-changer. We talked to the jury afterwards—they said ‘you had no chance of losing because of that.’ Prior to that, we were basically hopeless [that our client would get acquitted].”
“They’re trained to behave with the mentality of win at all costs, even though they have an obligation to do the right thing [the Supreme Court ruled in 1963 that prosecutors must share any exculpatory evidence with the defense]. They do try doing the right thing, but the problem is, once they’ve convinced themselves that the client’s guilty or a piece of shit or whatever, then they think right thing is winning.”
“Obviously it’s not true of every single one, but its pretty pervasive, not only in New York but throughout the country. [One] 9th circuit judge—one of the most respected conservative jurists in the country—called it ‘an epidemic of prosecutorial misconduct.’ And it goes unchecked, and there’s rarely any consequence to it.”
2. Judges Are Largely Motivated by Career Anxiety.
Our source’s description of his experience with judges was no more reassuring than his assessment of prosecutors. “The judges are pretty much across the board dedicated to railroading defendants’ rights and keeping the convictions going.”
“Most judges are former prosecutors, and most have aspirations of moving up to more prestigious positions. Very, very rarely does a judge get in trouble for slamming a defendant. With the exception of the defense attorney, everybody in the system’s incentive is to cover their ass. And you cover your ass by not letting somebody go, or by not being lenient in sentencing.”
“You see what happened in the Brock Turner case—a judge actually exercises some lenience, and everybody loses their shit. He had to recuse himself from a similar case because of the public controversy. If he had just given [Turner] 10 years, that would have benefitted him [in terms of his career].”
“No one’s trying to be releasing a guy who then goes and kills someone, or give three years to somebody because even though the action was reprehensible, the person had no priors and mental health issues. That doesn’t play as well in the New York Post.”
“Some of the judges are very decent—and some are mentally ill…at least one [that I know] definitely is.”
“An example [to illustrate the tendencies of the judges]: There was a private attorney at the courthouse asking how to file an emergency writ. A writ is a challenge to bail—a claim that bail is excessive and needs to be reduced or that the client needs to be released. The judge sets bail at arraignment. It’s a pretty early process, when there has not been any real investigation, no time to explore. It’s just basically based on a formula and the nature of the charges. There’s a process where you can appeal later, but you’re only allowed to file the writ once—you have one shot at it.”
“The attorney was asking what that procedure is. I was telling him: ‘You actually have to get this in today, because the judge who’s hearing these writs is one of the good judges and he’s only hearing them today and tomorrow.'”
“He said, ‘I’m not sure I have time—this is not super-urgent. So for next week, who are the judges that are good, who are the judges that are bad?'”
“I listed two ‘good’ judges, and 13 ‘bad’ judges. I define bad as: Will never even consider reducing bail. That’s a good example of how the system is staffed right now.”
3. The Vast Majority of “Guilty” Cases Are Never Brought to Trial (Often for Surprising Reasons).
You think most people who are convicted of crimes receive a trial? Think again. Plea bargains are much more common—and often offered in terms that give the defendant, whether guilty or not, little realistic choice. But whether or not your case is brought to trial can depend on some astonishingly arbitrary factors.
“The vast majority of cases plea out. In the context of misdemeanors, almost all of them plea out, but it’s especially dependent on the borough [in New York]. In Manhattan, there are more trials because there are more trial court rooms. In Queens, there’s only one courtroom for misdemeanors, and usually they don’t even have court personnel to fully staff it. Last year—and keep in mind Queens is like a major city unto itself—there were only about 13 misdemeanor trials.”
“[Whether a case goes to trial] depends how good plea offers are. In a borough like the Bronx, where the average jury hates cops and hates prosecutors, cases go to trial less often because prosecutors know they can’t play hard ball.”
“In Manhattan offices, jury pools tend to be made up of gentrifiers, people who are more privileged and don’t have experience with cops, so they’re more likely to convict. So more trials happen there.”
“Even the more aggressive [felony] litigators in our office maybe do four-to-five trials a year.”
4. Drug Courts Are a Case Study in How Incentives Undercut Reform Attempts.
Drug courts are rightly regarded as a highly controversial alternative to prison, though they do at least represent one example of an attempt at reform. But our source illustrates how such attempts are often doomed by the incentives that apply to everyone involved.
Defendants in misdemeanor cases are often incentivized to opt for short-term incarceration rather than risk drug court.
“Everyone talks about treatment court, and how we should give these people counseling and programs. The way the drug treatment courts are administered is: You plead guilty, take a program, and if you complete it “successfully”, the case is dismissed. But if “you mess it up,” you get nine months in jail. The problem with the way it’s structured is that most people with drug addictions know that theres a good chance of relapse and fucking up. ”
“So [the problem with drug courts in misdemeanor cases is that] if you’re a drug addict being offered 10, 20 days in jail, you’re not normally gonna turn that down for a program where if you mess it up, even a little, you could get nine months in jail. So we have these misdemeanor treatment courts which basically get under-utilized because the whole incentive structure is messed up.”
And judges and DAs are also incentivized not to use drug courts.
“The DA’s office has been extremely unwilling to recognize the fact that society is shifting toward recognizing addiction as a [health] issue rather than as a public safety issue. The New York state legislature passed a drug reform act in 2009: The idea was that judges [could opt for a drug treatment program instead of prison] without prosecutors’ consent. But the problem is once again incentive structures.”
“The judges are not going to go out on a limb with prosecutors saying to them, ‘Judge, this person is a threat to public safety.’ Drug treatment courts do get utilized, but there’s been a city-wide pushback from the DA’s office from day one. They’ve just cried bloody murder about it.”
“There’s a specialty drug court that assesses whether or not someone is eligible for treatment and whether that would be an appropriate thing. But before you even go to that, there is an all-purpose courtroom where people go. There’s one judge who sits there, and you’re asking a judge who doesn’t specialize in drug treatment to see if the person is even eligible to go get assessed. All we’re asking for is an assessment. Thats a crazy thing—for a judge who doesn’t specialize in drug treatment to have ultimate discretion over who even gets a crack at being assessed to get treatment. The judge in my bureau is very inconsistent—sometimes he will say yes, sometimes he won’t.”
“There’s this culture of timidity; a culture of not rocking the boat, not taking any risks, and it really has undercut a lot of what the legislature thought it would be doing with the reform act.”
“As an example, I have a client with a prior felony for minor property crime. Now he has a couple allegations of trying to snatch wallets out of people’s hands. He is doing this out of poverty, and [to buy drugs due to] addiction. I asked the judge, ‘can we get him assessed for drug treatment court?’ And the judge said no. So now he’s not eligible for treatment unless the DA consents. And the DA knows [my client] has a prior drug conviction, so they say, ‘We can’t agree because of his prior felony, it’s just such a bad look.'”
“The legislature thought maybe this kind of thing could get diverted, but based on the DA not wanting to take a risk and a temperamental judge…my client is now looking at a minimum sentence of 1.5-to-three years.”
5. Sentencing Is Almost Like Setting a Salary for a New Employee—”Just Give Them a Little More Than They Got Last Time.”
When someone is convicted of a misdemeanor, there is often very little thought put into determining how long to incarcerate them, according to our source.
“Normally the plea offer [for a misdemeanor] looks like this: They look at your rap sheet, and offer you what you got last time or more. Obviously that’s insane—that’s just deferring what’s the right thing to do to someone in the past. It also leads to escalating, spiraling punishments.”
“Everyone’s doing the math: ‘What’s a reasonable time to give?’ So [when] they get picked up, the judge says, ‘Oh, well he’s already got [10 days last time], I’m gonna give him 20 days. Next judge says, I’m gonna give him 30.”
“A judge might show lenience to someone who presents as a total hopeless crackhead—if the only thing they found was a small bag of heroin, or a crack pipe, he might say, “I’ll give him a week.” And by the way, it’s crazy that that is the lenient option, like ‘Out of the goodness of my heart, because you’re so addicted, I’m gonna give you a week in jail, instead of the standard assumption that I’m going to give you more than last time.'”
“Here’s what a lot of people don’t realize: Drug charges on misdemeanor counts are treated by the DAs as a numbers game. In misdemeanor world, everybody knows that no one takes a plea to get a criminal record [you’d rather risk serving whatever small amount of jail time than get a criminal record]. But DAs love to talk about their high conviction rates.”
“So when you have someone chemically addicted with multiple convictions already, it’s easy pickings. Because how are you going to defend yourself in a drug case? If your constitutional rights were violated in an unlawful search, cops are just going to lie and the judge will believe them. Then once they come up with the lab report, you’re screwed. Your only defense is hoping they forget the lab reports. And this whole time, you’re in jail, trying to fight your case.”
“This definitely comes up with petit larceny. If you shoplift some baking soda to cut some drugs with, or you shoplift some stuff because you’re broke because of your addiction, or you shoplift to sell stuff so you can beat your eviction—the judge doesn’t look at this as a ‘drug crime’ or about poverty.”
“[They’ll say:] ‘I don’t care that this person’s poor, this is a theft.’ And theft, they really care about. Judges really, really care about the middle class, and businesses. They’re not trying to cause any trouble. It’s normally gonna happen that you get more and more punishment on petit larceny, even if the driving force behind it is drug-related.”