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| Emily Galvin-Almanza |
Although this is a seemingly small step in the right direction, in a country where 70% of people who are incarcerated are rearrested within five years[2] — compared to just 20% in Norway[3] — any progress toward reducing American recidivism is, in fact, a very big deal.
There is a direct link between higher recidivism rates and worsened public safety outcomes.[4] Bail reform efforts such as the one described above offer one starting point, and this is why advocates are currently fighting so hard to prevent New York Gov. Kathy Hochul from rolling back a key public safety advancement.
But as a former public defender, I have seen firsthand how good public defense can be a critical factor in lowering recidivism in the U.S.
Public defenders' upstream position in the criminal legal system, intimate knowledge of the details of their clients' lives, and their understanding of clients' needs uniquely position them to connect their clients with essential services. These often range from affordable housing to health care to opportunities to engage with their communities and beyond.
These services also happen to be the exact mechanisms that have also been proven to address the root drivers of crime and, consequently, recidivism.
To be clear, bringing down the country's recidivism rates is not the core duty of public defenders, nor can they single-handedly achieve it. This broad-scale change will take concerted efforts from a host of stakeholders. But thanks to the special vantage point of the public defender, communities can reap incredibly high public safety dividends by strengthening their public defense offerings.
Take, for example, the link between housing and safety in the U.S. Being targeted by the legal system makes it harder to hold onto housing[5] — between court costs, missed work and a rap sheet, getting arrested can cause people to be evicted and excluded from housing opportunities, and can rapidly render people housing-unstable.[6]
Once a person is without housing, there is a higher chance that they will encounter police; break small ordinances associated with living unhoused, such as loitering and trespassing laws; or experience other stressors that increase the chances of, in some cases, engaging in forms of activity that can place the safety of others in the community at risk.
In short, our system broadens the path to incarceration and closes off the path to success.
What brings about success? It's not mysterious. A 2021 study from economist Elior Cohen found that helping unhoused people secure housing reduced the number of days they spent in jail within 18 months by 130%, and reduced their probability of committing a crime by 80%.[7]
Taking care of people makes them safer. It's common sense.
Prioritizing housing for people is not only crucial for public health and economic mobility — it's also a vital public safety intervention. And public defenders are situated perfectly in the criminal legal system to connect folks with affordable housing interventions before immeasurable damage has already been done.
In our hypothetical example above, a person's arrest led to their unhousing — but imagine if they had a well-resourced defender by their side, with the capacity to do interdisciplinary work beyond the criminal case.
Defenders can assign them an advocate who can seek rental assistance for them, connect them with food stamps so that the cost of feeding their family is better supported, navigate a rent extension with their landlord, or, in a worst-case scenario, seek emergency alternate housing.
They might be better able to connect with counsel if they are facing eviction. Without this intervention, up to 75% of unrepresented tenants are estimated to lose their eviction case in court. In comparison, a 2022 study from the ACLU found that "those with access to full legal representation were nearly twice as likely to retain possession of their homes and nearly four times less likely to use homeless shelters."[8]
If there are other barriers to stability — for example, a substance dependence issue that is disrupting employment — the confidential relationship with counsel makes it safe for folks to tell their defender what's really going on, making the defender better positioned than others to help provide the client with options for help.
And importantly, when a defender and their nonattorney team — e.g., social workers, peer navigators or client advocates — can work deeply with a client across the multiple challenges the client is facing, the defender can pour that work into more powerful mitigation in court, lessening the length and likelihood of incarceration.
We also know that barriers to accessing treatment and support for substance use issues and mental health challenges also make our communities less safe.[9]
In fact, having poor access to these services has been shown to be a better predictor of jail population size in certain locales than actual violent crime rates.[10]
In over a decade working in public defense, I actually cannot count the number of times I have had a client get arrested because they were experiencing symptoms of mental illness or substance dependence — older men arrested for sharing methadone bottles, young men arrested for buying drugs, a woman arrested because she tried to end her life by suicide in her car, another woman arrested for fighting with another resident of her long-term care facility. These stories are not unique.
In some communities, improving access to mental health treatment has reduced recidivism among youth by 63 arrests per 100 kids.[11]
Our nation continues to treat these health matters as criminal misconduct, and the result is that the Los Angeles County Jail, Chicago's Cook County Jail, and New York's Rikers Island each hold more people with mental illness than any psychiatric hospital in the U.S.[12]
While increasing the availability and affordability of treatment services is foundational, public defenders also play an essential role in ending the cycle of jailing and unwellness when they advocate for care instead of punishment.
A judge with stranger after stranger appearing in front of them may not be well equipped to be able to decide whether that person might benefit from inpatient treatment, more gainful employment or a family therapist. But when clients have the advantage of a defender with the resources to explore the client's goals and options, and present something truly well tailored to the court, the judge is more able to confidently offer alternatives.
Another key to reducing crime is fostering, rather than breaking, community connection.[13] Personal relationships — with family or romantic partners — professional networks, religious communities, and even civic participation like voting have all been shown to lower recidivism and increase safety.
And of course, linking people with meaningful opportunities for education[14] and employment[15] have been shown to do wonders for reducing the odds they will engage in illegal acts in the future.
In other words, fostering social ties is a critical way to create safety.[16] This can look like restoring voting rights to those previously convicted of felonies.[17] Or ensuring those detained behind bars have access to mail and packages[18] from loved ones back home. Or making sure those entangled in the criminal legal system are provided with free means for calling loved ones back home.[19]
And by keeping more people home in the community and bringing on staff who can help with forms of networking related to therapeutic engagement, peer support groups, professional mentoring, community organizing, and even after-school activities for young clients, public defenders are quite capable of moving the needle on social integration and healthy opportunities.
Under our current punishment system, the mechanisms of harm are myriad and complex — but empowered public defenders can be instrumental in this fight, increasing the rate at which people come home, getting better legal outcomes to preserve future opportunities,[20] expunging old convictions, and advocating to keep families together.
But there is one significant caveat: Public defenders can only help bring about these myriad positive, pro-safety social changes when they are given the tools to do so. And unfortunately, the reality is that today, our public defenders are grossly underfunded and underresourced.
Across the U.S., state and county governments spend over $200 billion annually on criminal legal measures, but just $2.3 billion of this funding goes to public defense — barely more than 1%.[21]
Without proper government-appropriated funds, public defenders' offices are chronically understaffed and overworked — a state that robs them of the bandwidth needed to connect clients with social services and strains their ability to offer their clients the legal services they are owed by the U.S. Constitution's Sixth Amendment right to counsel.
It's the kind of business-as-usual policymaking that creates the optics of safety without the reality of it, and lawmakers who underfund public defense are missing a key opportunity to help their constituents thrive.
Again, I am not arguing that public defenders should be tasked with single-handedly reducing crime, or that crime reduction should be a metric for evaluating their effectiveness — they are key guardians of our constitutional rights, and nothing is more important than their role as liberty's champions.
But it's important to recognize that the services they can take on when they are well-resourced happen to be the very same things research tells us lower crime. We should sit up and take note.
When we as communities support our public defenders, we give them the opportunity to connect the most vulnerable individuals affected by the criminal legal system with the affordable housing, health care, and other services and opportunities that have been proven to truly address the root drivers of crime, reduce recidivism and promote public safety.
We just need to make sure that our elected officials and governing bodies are granting them adequate resources to bring about this sort of real change.
Emily Galvin-Almanza is the executive director and co-founder of Partners for Justice. She previously served as an attorney with the LA County Public Defender, Santa Clara County Public Defender and Bronx Defenders.
"Perspectives" is a regular feature written by guest authors on access to justice issues. To pitch article ideas, email expertanalysis@law360.com.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of their employer, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
[1] https://www.newsday.com/news/region-state/state-bail-law-nyc-recidivism-john-jay-college-study-i36f4n0f, https://gothamist.com/news/study-shows-those-released-under-nys-bail-reform-laws-are-less-likely-to-get-rearrested.
[2] https://bjs.ojp.gov/library/publications/recidivism-prisoners-released-34-states-2012-5-year-follow-period-2012-2017.
[3] https://salve.edu/sites/default/files/filesfield/documents/Incarceration_and_Recidivism.pdf.
[4] https://www.brookings.edu/blog/fixgov/2016/05/25/reducing-recidivism-is-a-public-safety-imperative/.
[5] https://www.partnersforjustice.org/evidence/the-vicious-cycles-of-incarceration-and-housing-loss.
[6] https://www.partnersforjustice.org/evidence/impact-of-the-carceral-system-on-economic-stability-and-mobility.
[7] https://www.anderson.ucla.edu/sites/default/files/document/2021-08/2021-14WP.pdf.
[8] https://www.aclu.org/news/womens-rights/new-report-illustrates-how-right-to-counsel-prevents-evictions-and-their-discriminatory-impacts-on-communities, https://www.americanprogress.org/article/right-counsel-right-fighting-chance/.
[9] https://www.partnersforjustice.org/evidence/the-carceral-system-and-mental-health-substance-use-disorders.
[10] https://bmchealthservres.biomedcentral.com/articles/10.1186/s12913-022-08306-6.
[11] https://pubmed.ncbi.nlm.nih.gov/16465707/.
[12] https://www.treatmentadvocacycenter.org/storage/documents/backgrounders/smi-in-jails-and-prisons.pdf.
[13] https://www.partnersforjustice.org/evidence/strong-social-ties-increase-safety.
[14] https://www.partnersforjustice.org/evidence/access-to-education-creates-safety.
[15] https://www.partnersforjustice.org/topics/economic-mobility.
[16] https://uploads-ssl.webflow.com/6082d94f16ba7348d54d034d/63e81994c21faa7ab3b827c3_
Community%20and%20Social%20Ties%20in%20the%20Criminal%20Legal%20System.pdf.
[17] https://lawcat.berkeley.edu/record/1125056?ln=en.
[18] https://www.brennancenter.org/our-work/research-reports/why-mail-service-so-important-people-prison.
[19] https://www.partnersforjustice.org/evidence/empowering-public-defenders-transforms-the-legal-system.
[21] https://www.vera.org/state-of-justice-reform/2017/the-state-of-public-defense.