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Public Defenders as Prosecutors: Unanswered Questions


governorcuomo chief judge difiore remarks

(photo: the governor's office)


The recognition that prosecutors were a primary cause of mass incarceration has spawned a movement for progressive prosecutors. While exactly what it means to be a progressive prosecutor is far from clear, at a minimum it reflects a change in the way prosecutors approached their work over the past several decades.

Common features of a progressive prosecutor include emphasizing diversion over prosecution for minor crimes; declining to prosecute marijuana arrests in certain circumstances; and reducing or eliminating calls for money bail. While to many these adjustments seem more like correctives than anything particularly progressive, they do signal important changes to the prosecutorial status quo.

As surprising as it is to witness the number of District Attorney candidates running as criminal justice reformers, it is even more remarkable that many of these candidates are current or former Public Defenders campaigning to be the prosecutor in the very court in which they have been defending their clients. To devotees of the progressive prosecutor movement, this development is like manna from heaven; every Public Defender is seen as uniquely qualified by virtue of having been a Public Defender. 

In the years since the Supreme Court ruled that anyone facing incarceration is entitled to an attorney, there have been countless reports about the crisis in indigent defense and the effectiveness of government appointed lawyers. Often, the crisis centers around resources; Public Defenders have too many clients and too little funding. Yet there is also the reality that not all Public Defenders are vigorous, dedicated and indefatigably zealous advocates for their clients. 

Before anointing any Public Defenders as righteous District Attorneys, it is imperative to discern what kind of Public Defender they were. Did they pound the pavement looking for witnesses? Did they spend hours researching the law and writing novel arguments to expand the law and protect their clients’ rights? Did they visit their clients whether in jail, prison, or at home? Did they regularly push back against prosecutors and fight in court with judges who ran roughshod over their clients? 

The paradox is that most, if not all, of the fierce and tireless Public Defenders who meet the “test” spelled out above are the very ones who likely could not imagine prosecuting their clients in any way shape or form. And after all the cases are diverted from court, and all the low-level offenses are dismissed, that is what Public Defenders turned District Attorneys will do -- prosecute their former clients. That prosecution will be kinder, gentler, and more attuned to race and poverty, but thousands and thousands of people will still be prosecuted, and many of them will end up enduring the brutality, despair, and violence of years lived in prison cells. 

The progressive prosecutor won’t ask for money bail very often, or maybe not at all, but will ask that any number of people be held without bail or subject to all kinds of surveillance and restraints on their liberty.

The progressive prosecutor won’t seek incarceration except as necessary, or even only as a last resort, but will find that last resort with respect to thousands of people.

The progressive prosecutor won’t ask for the maximum sentence all the time, and maybe only in some cases, but will still often ask for jail or prison sentences.

These truths make most committed Public Defenders shudder at the thought of being the elected prosecutor and having people incarcerated, even for a day, in their name.

Public Defenders daily witness all manner of damage, indignity and violence inflicted on clients, their families, and their communities. They argue every day that the criminal legal system is unjust from biased and unconstitutional stops, arrests, interrogations. and line-ups, to rubber stamp Grand Juries, and through plea bargaining and trial processes that promote efficiency and punishment over fairness and decency.

They are called to stand, literally and figuratively, between the awesome power of the government and their clients. Public Defenders as prosecutors will now face their former clients, level accusations against them, and frequently argue against the assertion, let alone expansion, of their constitutional rights. Suddenly, warrants are not always required, the Grand Jury isn’t so bad, and police interrogations are a valuable societal tool.

When I was a fledgling Public Defender, I was assigned to assist a supervisor representing a man charged with a particularly brutal crime. Several lawyers from the assigned counsel panel had already declined to take the case, the prosecutor was seeking a maximum sentence, the judge didn’t even try to hide his contempt for our client, and the media coverage was dehumanizing.

In his audiotaped confession, our client recounted in graphic detail what he did and why he did it. I asked my supervisor how he felt about representing this client. He responded by saying that it was exactly clients like this, who just about everyone wants to throw away, that most desperately needed a committed Public Defender.

Ironically, this is the very man the progressive prosecutor will prosecute, albeit with greater awareness and sensitivity. His case will not be dismissed or diverted out of court. He will not be released without bail. And the progressive prosecutor will seek a prison sentence. 

Accepting for now the current system, the question is not so much whether that man should be prosecuted but who should, or could, do the prosecuting. A consummate Public Defender couldn’t be the person standing in court saying that this person, this man standing five feet from me, must, in my name and my role as prosecutor, go to state prison. Maybe the Public Defender who could do that made the right move in becoming a prosecutor. Maybe they didn’t have the right stuff to be a Public Defender in the first place.

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Steven Zeidman is a professor of law at CUNY School of Law. On Twitter @SteveZeidman.

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Banning Fur is Not an Issue of Race


furban race

(photo: @theanimalvoters)


The world around us is changing. People are making more ethical choices concerning the environment and the welfare of other species. We’re starting to use less plastic because of the impact it has on our oceans and ocean life. More and more people are choosing vegan milks and meats as they come to understand the ill effects that factory farming has on the planet.

A ban on fur in New York City would be a step in the same ethical direction.

New York has long been considered a fashion Mecca. We have always set the pace for others to follow, but on the issue of fur, we’re falling behind while everyone else is moving ahead.

Fur farms all over the world are already closing. Cities like Los Angeles, San Francisco, and West Hollywood have already banned sales of new fur items. Famous designers including Prada, Versace, Michael Kors, Armani, Gucci, and so many others are saying “no” to fur. New York is behind the curve. In 2019, wearing the skin of other sentient beings is simply unacceptable.

Two years ago, my daughter asked me for a Canada Goose coat. I told her, “Taj, you know I’d do anything for you, but you’re not getting that coat. You have a choice. Animals don’t.” I explained to her how coyotes are caught in steel traps and left in pain, struggling and crying, until a trapper finally arrives to shoot them or beat them to death—just so their fur can be used for the trim on a jacket hood. After I explained this to her, she didn’t want the coat anymore, and she asked me, “Daddy, why don’t they just use fake fur?”

That’s a question I want everyone reading this to think about. Why are we not using faux fur, especially when sustainable, vegan materials, such as faux fur made from hemp or recycled plastic bottles, are kinder to animals and the environment? Why are we putting profit over ethics?

Animals are not “things” to be used for our own ends any more than people of color are “things” to be used by whites.

I say this as a descendant of African slaves, who were brought to this country and used as a commodity. It disturbs me greatly to see other fellow sentient beings have their freedom and lives taken from them and be used as commodities for human gain.

Why would a people with a history of violated human rights approve of the unfair treatment of others? We should be speaking up for the most vulnerable among us.

To those in the African-American community who say that a fur ban is “racist” and a form of discrimination, please remember that you are not the victim. The victims are the millions of animals killed every year for what is rightfully theirs—their very skin and fur.

And to those in the African-American community who believe that a fur ban is an attack on our culture, you’re disregarding our own history of oppression. If you speak of freedom, but it’s only in regard to others who happen to look like you, is it really freedom? Shouldn’t we want freedom for all sentient life?

Banning fur is not an issue of race. It is an issue of rights. As humans, our morals can be judged by how we treat those who are the most vulnerable. That’s why I encourage everyone in the city to stand on the right side of justice and support the proposed fur ban. Oppression is oppression regardless of who it is happening to, and when we have the opportunity to end one form of injustice, we must seize it.

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Stewart Mitchell is a leader in the animal rights movement in Brooklyn, author, and father.

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Lives on the Line: Legislature Must Reform Solitary Confinement Before Session's End


Cuomo solitary confinement prison

(photo: Governor's Office)


Thousands of people are subjected to long-term solitary confinement in New York. The United Nations calls it torture. New York’s jails and prisons call it business as usual.

Our state’s laws permit 23-hour confinement for months and even years at a time in jails and prisons across the state. This despite the fact that long-term solitary confinement creates severe and irreparable mental and physical trauma. Its effects can be deadly. The death this month of Layleen Polanco in a solitary cell at Rikers is just the latest example.

In 2015, the state and the New York Civil Liberties Union reached a settlement that required critical changes to the use of solitary confinement in state prisons. Although the state has made important efforts to reform solitary confinement for people in prisons, we need the legislature to pass more comprehensive changes to ensure that individuals held in both prisons and jails are no longer subjected to solitary confinement in state prisons and local jails that lasts longer than 15 consecutive days.

People in solitary confinement are seven times more likely to hurt or kill themselves. We cannot afford to wait on reform. Thousands of people are in danger and there is a bill in the state legislature that could help them.  

The Humane Alternatives to Long-Term Solitary Confinement (HALT) Act would make several important changes to the way our state currently uses solitary. First, it would prohibit long-term solitary confinement by limiting the time spent in confinement to no more than 15 consecutive days or 20 days total in any 60-day period.

The HALT Act would ban the solitary confinement of especially vulnerable people, including those 21 years or younger, 55 years or older, and people with certain disabilities. The government would also be barred from locking up in solitary anyone who is pregnant or in post-partum recovery or anyone who is a new mother or caring for a child while incarcerated.

Critically, the legislation would prohibit solitary for all but a small set of serious offenses. And HALT would provide rehabilitative programming that would help keep jails and prisons safer for everyone, including staff. To that end, it mandates that all people in solitary receive at least six hours of out-of-cell rehabilitative programming, plus one hour of out-of-cell recreation per day.

In settling the NYCLU’s lawsuit, Governor Cuomo has acknowledged that the state needs to reduce its reliance on solitary confinement. The settlement was critical to reducing the state’s reliance on isolated confinement. But we need his leadership to push for more comprehensive reform that protects the health of everyone in our jails and prisons by ending prolonged solitary confinement.

No one should be subject to torture.

Speaker Carl Heastie and Majority Leader Andrea Stewart-Cousins must act now and bring HALT to a vote. In 2018, New Yorkers voted to end the gridlock in Albany that kept progressive legislation like HALT from passing. By voting for this bill, lawmakers will help show that this legislative session is different and that the status quo of Albany inaction is over.

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Donna Lieberman is the Executive Director of the New York Civil Liberties Union. On Twitter @JustAskDonna & @NYCLU.

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