Justice by Attrition

This is an excerpt from Matt Taibbi's latest book, The Divide: American Injustice in the Age of the Wealth Gap The book examines inequalities in the American justice system. Taibbi juxtaposes the soft pursuit.. or non-prosecution.. of wealthy criminals, particularly the megabanks responsible for the 2008 financial crisis with the absurdly harsh treatment of poor people accused of everyday petty crimes.

In this chapter, he observes the humiliating process defendants go through answering charges in a New York City courtroom.

Bail. In criminal cases big and small, it's the whole thing. Everything comes down to bail.

Lawyers in this courthouse have yet another saying: "If you go in, you stay in. If you get out, you stay out." If you get arrested for a B misdemeanor in New York City - let's say it's prostitution - you might face a punishment of fifteen to ninety days. But if you don't make bail, you'll almost automatically spend at least that long in jail waiting for trial.

The state knows this, so essentially, charging a person who can't make bail with a B misdemeanor is the same as convicting that person. You file the charge, the judge sets high bail, you go back inside, and then you eventually plead to time served because, well, why not? You've already done the time.

The only difference is, you've got a conviction now, which means the next time you get arrested, the denial of bail - or a punishingly high bail - will be even more automatic. Additionally, every misdemeanor conviction in New York carries a two-hundred-dollar surcharge, plus you have to have a DNA sample taken if it's your first. And that's true for a violation of every single penal law in New York State, excepting traffic violations. So your DNA is on file forever, and giving the sample costs fifty dollars, a testing procedure that, of course, you pay for yourself.

So if you're a prostitute with no fixed address and a long criminal history hauled in during the wee hours of a Tuesday morning for accepting some undercover cop's sting offer of twenty bucks for a sex act outside a park, you're pretty much automatically looking at two weeks to three months in jail, plus a two-hundred-dollar fine ("That's like ten blowjobs," comments one public defender righteously) from the moment the city decides to file the charge.  And in the relatively rare instance where God smiles upon you and sends an undercover officer who doesn't know how to make a legal arrest, you will still plead guilty and pay the violation for loitering.

You're paying the fine not for what you did, mind you, but simply out of recognition that you'd be paying a lot more if the state decided to be difficult and proceed with its messed-up case.

This is the essence of Justice by Attrition. It's like a poker game where after arrest, the accused sits down at the table with one chip. But the other player, the state, has a stack of chips fifty feet high.  Will you play, or will you fold?

Most everybody folds.

I thought about this part of Taibbi's book this morning when I read this Katy Reckdahl article about the Justice by Attrition meted out to defendants in New Orleans. Unsurprisingly, Sheriff Gusman's jail plays a big part in that.

In Orleans, as elsewhere, most indigent defendants remain in jail until trial because they can’t afford bail. Altogether, Orleans defenders make 4,500 jail visits a year, which eat up so much work time that the caseload measure becomes almost meaningless. “You can blow three hours trying to talk to your client for 15 minutes,” said Chief Public Defender Derwyn Bunton, who described the jail as “one of our most disruptive inefficiencies right now.”

When Orleans Public Defenders go into court on Thursday, they will tell a state civil-court judge that Sheriff Gusman is violating both state and federal laws that govern a defendant’s right to counsel. They’ll show their log documenting inconsistent wait times and non-private conditions: rooms where they must discuss delicate case matters within earshot of other inmates and exchange paperwork through deputies, who may or may not deliver it.

The worst thing here is Gusman has no incentive to be helpful.  His budgetary fiefdom actually depends on the state's willingness to put people in jail and keep them there. 

Aside from its size, OPP is unique in other ways. Under the terms of a lawsuit over prison conditions filed in 1969, the jail's budget is based on a per-diem paid by the city for every inmate in prison. The more people locked in OPP, the higher the funding Sheriff Gusman has at his disposal. "Our current funding structure is creating a perverse incentive to lock more people up," explains Dana Kaplan, the director of Juvenile Justice Project of Louisiana, a criminal justice advocacy organization and member of the OPP Reform Coalition.

The institution of OPP is also exceptional in that it is a county jail and a state prison combined into one entity. About 2,700 people in the jail are mostly pre-trial detainees - the majority being held for drug possession, traffic violations, public drunkenness, or other nonviolent offenses - and are legally innocent. An additional eight hundred people are state prisoners who have been convicted in court, who may spend years or even decades at OPP.

That story was published four years ago in 2010.  The following year in 2011, City Councilmember Susan Guidry took up the per-diem issue with the Landrieu administration during a budget hearing.

“I’m surprised that the administration has had a year to do this and we still don’t have a fixed budget,” (Councilwoman Susan) Guidry said. “This is a perverse incentive to keep people in jail. It’s wrong, it’s not a healthy thing to do and we have had a whole year since the last budget. I don’t want another year to go by without us dealing with this.”

Guidry’s criticism prompted Landrieu’s budget director, Cary Grant, to say that a fixed payment system for Gusman is still “a goal of the Landrieu administration.”

So, Guidry asked him, how many people did he have working on the issue today?

“Today we probably have fewer people working on that than we should,” Grant admitted.

Then.. by last year... still nothing happening.

Now that the Justice Department is insisting that the city share responsibility with the sheriff for the unconstitutional conditions there, Mayor Landrieu would like us to believe that his hands have been tied since he has no control over Gusman or OPP. But the Landrieu administration has dragged its feet on changing the funding of the jail from a per diem structure that incentivizes filling beds at the jail to one that would increase transparency and accountability. When Laura Coon of the Department of Justice asked Kopplin if the city had done anything to increase the city's oversight over the jail, for example, ordering a forensic audit,  Kopplin admitted that although this was something within the city's power, they hadn't ever looked into it.

Meanwhile, the sheriff keeps pushing to build more and bigger jails at greater and greater expense to the city.  Which is one reason this issue always comes up at budget time. Because no one seems capable of getting per-diem reform going. And because the legislature is not the most progressive body on earth when it comes to sentencing reform, a lot of people look at halting jail construction as at least a way to throw a stick between the spokes of this big wheel. At the District B Community Budget Meeting last night, Mayor Landrieu seemed to be on board with this thinking.

An easy choice, for Landrieu at least, involves the jail. The Sheriff’s Office will soon open a 1,438-bed building that will replace most of the jail’s current facilities. But it won’t accommodate certain inmates with medical and mental health needs, meaning it’s out of compliance with the consent decree. Sheriff Marlin Gusman favors building yet another facility to house that group, and provide additional beds to meet the city’s jail population needs. The building would go on a plot of land — once said to be intended for “green space,” between the 1,438-bed jail and Gusman’s new Kitchen/Warehouse facility. Landrieu, who initially seemed to be open to the additional building, is now pushing for renovations to the Phase II building to meet medical and mental health needs.

“Do you want to build more jail cells or do you want a better NORD [New Orleans Recreation Department]?” Landrieu said at the meeting. “I don’t think we have to build a bigger prison. That’s my personal opinion.”

Today the Metropolitan Crime Commission actually recommended building even more jail than Gusman is currently asking for.  The city council has passed a resolution siding with the mayor.
 If the city and the sherriff can't come to an agreement, the size of the jail could ultimately be decided by a federal judge through the consent decree process. 

As for criminal justice reform overall, that will come about even more slowly.. as if by attrition.