Justice delayed and dollars wasted

President Biden recently made history by commuting over 1,550 sentences in a single day. Each commutation surely came as a huge relief to those who received them. But they did nothing to address the hundreds of thousands of people facing death-in-prison sentences. Doing that will require both major policy changes and legal representation to make those policies a reality. Neither will work without the other.

My former client, who I'll call Victor, was sentenced to 160 years in prison for his first-ever offense, an assault on his adult drug dealer, which he committed when he was only fifteen years old. A 2010 Supreme Court decision rendered his sentence plainly unconstitutional. The law was on his side. But it wasn't until our organization represented him that he obtained relief, some six years after that decision.

Even worse, within minutes of our first interview with him, which we conducted in Spanish, Victor told us of a problem that should have resulted in reversing his conviction even long before the 2010 decision that prompted our efforts: he did not understand a word spoken during the proceedings. He wasn't given a translator. We confirmed the same, and, after months of legal wrangling, we were able to obtain his release. 

Victor languished in prison from age fifteen to forty because the post-conviction system in his state failed to live up to the promises of the Constitution. We spent several hundred hours securing his release but were only paid $2,000, the cap for payment on any non-capital post-conviction case in that county in Arizona at the time.

The state of post-conviction representation (i.e., lawyers for persons who have already been convicted) is not much better elsewhere. But it is a critical safety net in our legal system. Half of all death sentences are reversed in post-conviction. Less than 1% of non-capital sentences are. The difference: the right to counsel applies in capital post-conviction cases.

Take California. It is a state that has recently enacted many sweeping reforms targeted at reducing mass incarceration, including by allowing sentencing reductions in post-conviction. In the California counties with public defender offices, scores of people have been released after California applied one of its reforms to existing sentences. But in the 25 counties without such an office, no attorneys are reviewing old cases to see if anyone qualifies for relief.

Reform is possible - and it could save taxpayers money along the way. A payment structure that rewards attorneys for results would more than pay for itself. In California, a single year of incarceration costs $133,110 per inmate. Offering to pay attorneys a fraction of the total California would have spent incarcerating someone but for that attorney's efforts would attract enterprising lawyers to an otherwise unfunded space and would result in both the aspired outcome related to recent reforms and a reduction in the cost of incarceration.

Providing funding for counsel to implement reforms is critical to making them a reality. And doing nothing would mean that as a society we will have to bear the economic and moral burden of unlawfully and unnecessarily incarcerating our citizens.