Mara Dolan, a public defender in Massachusetts, wants to shake that up. Attorneys who have represented indigent defendants, she says, bring a critical perspective to the court system since they’ve experienced the ways it fails people, and the ways it compounds social inequalities. Had she lived in some other states, Dolan could have run for the bench herself. But Massachusetts does not elect its judges and justices. Instead, they’re nominated by the governor and then confirmed by an obscure eight-person elected body, the Massachusetts Governor’s Council.

So Dolan ran for a seat on the governor’s council, and last week she prevailed, ousting a 25-year incumbent, Marilyn P. Devaney. 

Dolan won 52 to 48 percent over Devaney in the Democratic primary in the state’s third district, which covers parts of the Boston region. After narrowly losing in a first run in 2022, Dolan piled up endorsements this year in her rematch against Devaney, who has courted controversy and tense relationships with her colleagues since joining the council in 1999. 

There is no other candidate running in the general election, so Dolan is now virtually guaranteed to win in November.

I talked to Dolan on Wednesday about why she is pushing for more professional diversity on the bench, and what she thinks she can do as a councilor. She stressed that Massachusetts judges have discretion over a broad swath of decisions—how long a sentence to impose, whether to incarcerate people with addiction issues who relapse, whether to discipline prosecutors who break the rules. And she made the case that judges too often make decisions that focus on punishment and exacerbate the state’s high racial disparities in incarceration. 

Dolan will be just one of eight councilors but she hopes to use her leverage to change these mores. “The governor’s council is the gateway to the entire judicial branch,” she said. 

The council has several other roles, including confirming parole board members and reviewing pardons and commutations. Dolan says she wants to use her new bully pulpit to push Governor Maura Healey, a first-term Democrat, to commute more sentences, and advocate for reforms in the legislature such as increasing the size of the parole board to process more applications. 

As an institution, the governor’s council has long been decried for a lack of transparency. It has met with judicial nominees behind closed doors, and resisted streaming its meetings online, a change that Devaney pushed for. Dolan says she’s in favor of open meetings and online streaming.

The council has also drawn criticism for failing to apply any real scrutiny to nominees. During Republican Governor Charlie Baker’s eight-year tenure, the governor’s council was controlled by Democrats, yet it confirmed all but one of Baker’s 350 nominees, according to research published in The Shoestring. 

In a Q&A with Bolts, Dolan said that she wants the state judiciary to offer a strong counterpoint to the staunch conservatism of federal courts, a goal that’s become common in progressive legal circles. “In a time when our federal courts are taking away our rights,” she said, “we have to make sure that our state courts uphold them.” 

Your campaign centered on the case that the governor’s council needs a public defender. That’s not a common campaign slogan. Why was this an important message for you?

In Massachusetts, we do not elect our judges, but we elect the people who approve them: That’s the governor’s council. The governor’s council is the gateway to the entire judicial branch. 

And we have never had a public defender in the governor’s council. That’s a perspective that is badly needed and badly overdue, particularly in light of the fact that the ratio of former prosecutors to former public defenders who are judges in our trial courts is two to one. We really need a public defender being part of the approval process for judges in order to help bring more balance.

What is it about the background of a public defender that you think should be at the table in this context?

As a public defender, my clients are among our most vulnerable, and therefore the most impacted by the decisions of the governor’s council. Because I’m a public defender, I’m on the front lines. I see what’s happening in our criminal courts every day. 

I know that judges are incarcerating people for relapse all the time. I see it all the time, and whether it’s my client or somebody else’s client, it’s heartbreaking every time. The science is clear that addiction is a chronic, recurring disorder of the brain that does not respond to negative consequences. Yet that’s what we do to people in relapse. That’s what judges are doing in courts in Massachusetts and, I assume, all across the country. 

Science is also very clear that incarcerating someone for a relapse is the most harmful thing that we can do. It isolates them. It takes them away from their homes, their families, their communities, jobs and homes that they’ve worked very hard to get. It takes them away from existing treatment that they’re getting. We also know that people are most likely to overdose after they’ve been released from prison, so we are doing the single most harmful thing that we could do for someone in relapse. We’ve simply got to stop doing this. Instead of punishing people for relapse, we need to figure out where there was a break in their lines of defense, against their addiction, against their substance use disorder, and make it stronger.

You mentioned the disparity between prosecutors and public defenders among criminal court trial judges. Another recent report found an even larger gap looking at superior and appellate court judges in the state. What do you think the effects of this are?

If you are a prosecutor, you never have a conversation with a defendant. You have no way of understanding who they are, what their lives are like, what their circumstances are. As a defense attorney, I have those conversations with my clients, so I have a really good understanding of where they’re coming from. That’s why, I think, you see a very punitive attitude.

We often see sentences that are overly harsh. There are certainly instances where people need to be sent to jail; there are people who pose a danger and they should be behind bars. But we often see folks who are given overly harsh sentences which cause more problems than they solve. Someone who has been a public defender understands that in a way that a prosecutor or corporate attorney never can.

I do want to say that there are prosecutors who become wonderful judges. So I’m not anti-prosecutor. I’m simply saying that someone has to have cultural competencies, someone has to understand the issues that the people who appear before them are dealing with. We need to make sure that our judiciary really understands people, and that it really is about justice and not just about punishment. 

Incarceration in Massachusetts has one of the highest racial disparities in the nation. What responsibility do you think Massachusetts judges bear in this?

Judges play an enormous role. When people see racial disparities in our courts, they say, “Oh, look at that systemic racism, it’s terrible.” It’s like this abstract concept, systemic racism. But except for the decision on what crime someone is charged with, which is a decision that’s made by district attorneys, every other decision that contributes to our racial disparities is made by judges. It’s bail, whether someone is held on bail, whether they’re released on personal recognizance, whether there are conditions associated with their release. It’s sentencing, it’s terms of probation, it’s whether they’re found in violation. 

All of those decisions are made by judges, and in Massachusetts, in all of those instances, if you are a person of color, you anticipate a worse outcome. We’ve got to make sure that we have judges who are ready, willing and able to tackle systemic racism with every tool that the law allows. (Editor’s note: A study commissioned by the state supreme court in 2020 showed that white defendants receive shorter prison sentences in Massachusetts; other studies have shown disparities at other stages of the system, such as gaps in the rates at which white applicants and Black applicants receive medical parole.)

What is your response to people who might say this is not what judges are supposed to be thinking about, that they’re only meant to call balls and strikes?

The ‘balls and strikes’ line was famously coined by Supreme Court Chief Justice John Roberts, who turned out to do something very different from what he said that he would do. It is important for judges to follow the law, but judges interpret the law, and the interpretation of the law comes from who they are and what their values are. 

For example, we’ve got to make sure that we have judges who have a reasonable interpretation of the Second Amendment so that we can enact, uphold and enforce sensible gun safety laws. Someone can say, it’s just going to be balls and strikes and I’m just going to follow the law, but at some point, they are going to have to make a decision based on their values. 

Their values will impact how they interpret the law, and their experience, or their lack of experience, will have a profound impact on their ability to understand the person who appears before them and how insightful they are. This is critically important.

I’d like to turn to the role of the governor’s council specifically: The body does not have the power to choose judges; it can only review the governor’s nominations, and it does that on an individual basis. What authority does that give you to push this agenda? 

It has to do with the conversation that you have with nominees and what they say on the record during their confirmation hearings. Governor’s councilors don’t just vote yes or no. They also talk with nominees. So I can share with them what I know and, because the hearings are public, get the nominees on the record as to these positions and then hold them accountable if they fail to uphold the standard that they said they would.

For example, I’m very concerned about the failure of prosecutors to disclose potentially exculpatory evidence. There was just a big decision handed down by the Massachusetts Supreme Judicial Court, Graham, which found that the Hampton County DA breached its duty to disclose potentially exculpatory evidence to defendants. My question is, where were the judges while these breaches of duty were taking place? Why were judges not ordering prosecutors to turn over potentially exculpatory evidence?

Do you also think you could shape nominations before nominees get to the council?

Yes, I do. I think that when you raise standards, you are signaling to potential nominees that they need to reach that standard. And that does have a powerful influence.

In Massachusetts, the governor appoints a judicial nominating commission to review applications, and this commission then recommends people to the governor. By the time they get to the governor’s council, the vetting process has been pretty thorough. So it’s about making sure that those nominees are upholding the high standards that the people of my district want them to.

We’ve talked a lot about the governor council’s role in reviewing judicial nominees. One other important role is that it reviews pardons and commutations issued by the governor. Those have been rare in Massachusetts. Are you hoping to see or push for shifts on how these matters are handled?

Governor Healy has recommended more people for pardons than any governor in the modern era, and is to be commended for that. But in the last 14 years, we’ve had a total of four commutations, only four, and we haven’t seen any recommendations for commutation from the current governor. I would absolutely push for more commutations: Commutations can correct an unduly harsh sentence. There may be someone who has already served a number of years, is rehabilitated, does not pose a danger, is ready and willing and able to be released and to lead a good life. 

This interview has been edited for length and clarity.

The post The Public Defender Who Just Won Power Over Confirming Massachusetts Judges appeared first on Bolts.

State Public Defender Rémy Starns holds a monthly virtual gathering with the lawyers in charge of Louisiana’s 42 public defender offices. “Coffee with Rémy,” as he calls these meetings, has become more tense in recent months as Starns rolls out pay cuts.

Louisiana passed legislation in March giving Governor Jeff Landry, a Republican who took office in January, more command over the state’s public defense system. Starns quickly told district defenders in charge of indigent defense across the state to start bracing for cuts to their pay—a reversal of raises the state had issued for defenders with basement-level salaries just a year ago. 

During Starns’ first meeting with public defenders under the new law, which gives him more control over the state public defense budget, he warned of the cuts on the horizon—to the point of even encouraging district defenders to open private practices to supplement their income, as the Louisiana Illuminator first reported last month. The axe finally fell during Starns’ meeting with district defenders last week, when he announced salary cuts of up to 51 percent and a new scheme for paying district defenders. 

In his meeting with district defenders, Starns insisted that he’s simply redistributing the state’s public defense budget “with goals of getting the most money, the most resources in the courtroom.” But public defenders and experts in indigent defense say Starns has provided few details on how he will accomplish that. Instead, his new plan stretches an already-underfunded system, and could jeopardize the quality of representation for the 146,000 people in Louisiana who need legal aid each year, they say. 

Starns’ plan removes prohibitions on private practice for district defenders and boosts their pay if they take on their own cases in addition to managing their regional public defense offices. The plan also ties district defender pay to fees that clients must pay their office whenever they’re convicted, which critics say provides an incentive for offices to encourage quick convictions. 

“When you have a system that incentivizes lawyers to lose, that’s a problem,” said Will Snowden, a Loyola University New Orleans law professor and former public defender. “How can any poor person reasonably believe that their public defender has their best interests at heart?”

Louisiana has long struggled with providing adequate representation for the roughly 85 percent of people accused of a crime who are too poor to afford a lawyer. Making the problem more dire, the state has the highest rate of incarceration in the U.S., and Black people are locked up at a much higher rate than white people. But public defenders, experts, and a member of the former board that oversaw legal aid told Bolts that problems across the system were consequences of a lack of reliable funding, not the people who oversaw it. 

Landry, who in his first months as governor has pushed for and enacted dozens of bills that will increase traffic into Louisiana’s criminal legal system, also championed the law giving himself more say over indigent defense in the state. The legislation disbanded the previous 11-member board that decided the state public defense budget. In its place, it gave more control over that funding to Landry and created a new nine-member oversight board with less power over how the state spends its public defense dollars.

The legislation also cut money to programs that defend people against capital punishment; Landry, a death penalty supporter, has already signed legislation to resume executions in the state. 

“This is the wild west now, and it’s never really been tame,” Jean Faria, Louisiana’s state public defender from 2008 to 2013, told Bolts of Landry’s newfound authority.

Landry and Starns did not respond to requests for comment or questions for this story.

During the debates over the bill, Landry insisted the changes were needed to improve indigent defense. “The Louisiana Public Defender system lacks accountability and has strayed from providing defense and moving criminal cases,” he said of the bill at the opening of the legislative session. “We propose to increase transparency and refocus the mission of providing defenders and support personnel for much needed efficiency.”

But experts in indigent defense told Bolts that the new law comes with few safeguards to protect against Landry or future governors abusing the public defense budget. They say the legislation removed a firewall of oversight that shielded the public defense system from the governor’s influence. One lawyer worried public defenders in charge of legal aid offices throughout the state will either quit or be forced to provide subpar representation because of salary reductions. Others say the legislation doesn’t fix existing problems with how Louisiana administers legal aid. 

“I don’t see how there’s a way to look at this bill with honesty and in good faith and see that it will actually do anything to improve indigent defender services in the state,” Susan Meyers, a senior staff attorney with the Southern Poverty Law Center who worked on a 2017 lawsuit over Louisiana’s representation of poor people, told Bolts.

Just over a decade ago, Hurricane Katrina devastated Louisiana’s indigent defense system. 

Louisiana is the only state in the country to primarily depend on money from court fees and traffic tickets to finance legal aid, including a $45 fee their clients have to pay if they’re convicted. When the money disappeared in the wake of Katrina, so did New Orleans’ public defenders. Prior to the storm, the office had 42 attorneys and six investigators. Afterwards, those numbers shrunk to six attorneys and a single investigator. Thousands of people jailed in the Orleans Parish Prison when the storm hit remained locked up for more than a year without talking to a defense lawyer. 

As it became clear that the state didn’t have the infrastructure to ensure that people were guaranteed their constitutional right to a lawyer, the legislature in 2007 passed a law aimed at bolstering public defense. The bill, known as the Louisiana Public Defender Act, created a state fund to supplement money coming in from tickets and court fees. The bill also established an 11-member board to oversee public defenders and administer that new pot of money. This board, called the Louisiana Public Defender Board (LPDB), consisted of law professors, advocates, retired judges, and lawyers from across the state who were appointed by a variety of entities. It additionally created a scheme to make sure that people facing the death penalty received qualified lawyers with specialized training in handling those complicated cases.  

Experts lauded the changes. “They recognized they had a problem, they addressed it, they fixed it and that’s something I just think is great,” David Carroll, who at the time worked at the National Legal Aid and Defender Association, told NPR in 2007. (Caroll now leads the Sixth Amendment Center, a nonprofit working on improving indigent defense.) 

When the original plan to assign lawyers to capital murder cases didn’t work out, the LPBD instead decided to contract with specialized nonprofits to perform death penalty work from trial to post-conviction appeals. “It made all the difference in the world,” said Faria, the former chief public defender, who later served on the LPBD coordinating capital defense.  

Fewer people were unfairly sent to death row in a state where four out of five death sentences have been overturned, contributing to the highest reversal rate and number exonerations per capita in the country.

While the 2007 legislation created a blueprint for the successful administration of public defense, it failed to solve the funding problem. Law enforcement agencies continued to receive outsized funding compared to lawyers representing people who couldn’t afford a lawyer. In 2015, for example, New Orleans taxpayers paid $355 per capita to the New Orleans Police Department, $17 per capita to the district attorney, and $2.40 per capita for public defense, wrote former Chief Defender Derwyn Bunton in an op-ed. 

By 2016, 33 of 42 public defender offices across the state were forced to restrict services at some level, with many offices placing people on months-long waitlists because funding deficits had made them unable to take on new clients. 

“I think it’s fair to say everyone thinks there was problems. No one thinks the system was perfect by any stretch of the imagination,” Carroll told Bolts last month. “I’m a firm believer that it’s mostly rooted in the lack of funding and the over reliance on traffic tickets.”

A class action lawsuit filed by the Southern Poverty Law Center (SPLC) the following year alleged the “poor in Louisiana are denied access to effective and meaningful attorney representation when facing criminal charges.” The complaint, which has since been dismissed, included accounts showing how people facing charges received poor representation. One man had such minimal contact with his lawyer that the lawyer allowed a judge to issue a bench warrant to arrest him, even though he was still incarcerated. Another, who was facing up to 30 years in prison, was represented by a lawyer who worked as a prosecutor in another parish. He’d spoken to his lawyer for just five minutes over the course of more than six months.

Landry’s seizure of public defense happened during a nine-day special legislative session on crime, when the Republican-controlled legislature passed all 39 bills put before them—including laws to automatically place 17-year-olds in the adult system, limit post-conviction relief, and resume executions through new methods and increased secrecy.  

Starns, the state public defender, and State Senator Mike Reese, the bill’s sponsor, were the only two people to testify in favor of the bill restructuring the state public defense system during a House committee hearing on it in February, while dozens of people testified in opposition. Critics raised concerns about giving Landry more control over public defense as he ratchets up punishment in the state, a move that will create the need for increased legal aid. “The statute as written risks creating further instability and backlogs in a criminal legal system that is about to face enormous and perhaps unprecedented changes,” testified Pamela Metzger, a Southern Methodist University law professor who represented prisoners who couldn’t afford an attorney in the wake of Hurricane Katrina. 

The previous board also worked within the governor’s office but its power was spread among 11 people instead of a single governor’s appointee. Though the state public defender will now have the ultimate authority over legal aid, their appointment will be subject to approval by the senate and the new nine-member oversight board, which will be responsible for approving contracts over $250,000. 

This new board met for the first time last month. The governor selects four of the board’s nine members, and he also gets to choose a fifth out of a list submitted by the Louisiana Association of Criminal Defense Lawyers and Public Defenders Association of Louisiana. The remaining members are named by the Louisiana Supreme Court and the leaders of the two legislative chambers.

There’s no longer a requirement that the board reflect the racial and gender makeup of the state, spurring concerns about whether it’s built to provide the necessary oversight. No one on the board even appears to have a background in public defense. 

“It’s just frustrating that we don’t have the kind of experiential knowledge represented on this board,” Snowden told Bolts. “I think that’s certainly going to have negative effects on what public defense looks like in the state.” 

Malia Brink, a senior policy attorney at Southern Methodist University’s Deason Criminal Justice Reform Center, warned the House committee in February of the possibility that the governor could act through the chief public defender to devalue public defense. “If you have someone appointed by the governor, then the governor doesn’t have to say anything,” Brink said during her testimony to the committee. “If you know where the governor stands, you may be influenced or pressured to act accordingly.”

She continued, “No person, not even a governor, can be both prosecutor and defender.”

The dual powers will be especially relevant in death penalty cases, the majority of which are represented by public defenders. The governor is in charge of signing death warrants and deciding whether to spare someone’s life by granting a clemency petition. As attorney general, Landry sued to block clemency hearings for 55 death row prisoners who filed petitions in hopes they’d be spared by outgoing Governor John Bel Edwards, a Democrat, before he left office. 

Under the new law, Landry’s appointee now has more control over a shrinking pot of funding for defending poor people who face execution; as part of the legislation, lawmakers also cut funding to programs representing capital defendants from 35 percent to 25 percent of the public defense office’s budget. 

Tony Clayton, the DA of West Baton Rouge, Iberville, and Pointe Coupee parishes who led the Landry transition team that pushed for restructuring public defense, told nola.com in February that the goal of the legislation was to spend less on death penalty defense organizations. “The constitution says they’re entitled to a defense, but they sure as hell aren’t entitled to a Cadillac defense,” he said. 

Louisiana hasn’t executed anyone since 2010 but lawmakers passed a bill last session that will make it easier to restart executions even in the face of lethal drug shortages. The legislation authorized nitrogen and electrocution as alternative execution methods to lethal injection and made it easier to secure drugs by shielding suppliers from public disclosure.  

“We all believe that Landry is going to have a heavy hand in making sure people get executed,” said Nick Trenticosta, a Louisiana death penalty lawyer. He estimated that five people of the 62 people on death row have exhausted their appeals and are eligible for execution. 

Starns could elect to cut all funding to the seven death penalty programs that get state funding for capital defense, or he could still fund those programs but mandate they move into district public defender offices and perform other work. Starns hasn’t yet announced his budget, but several sources told Bolts that he’s been meeting with the death penalty organizations to hammer out a new plan. 

“If there is not a concerted effort to insulate and isolate each of those units from the budgetary and caseload issues associated with already overburdened public defenders, then you will see a significant uptick in death penalty prosecutions and convictions and sentences,” said Faria, the former state public defender. “You will see a continued retention problem in the offices themselves and an erosion in the Sixth Amendment right to counsel.”

Louisiana’s Public Defender Board first appointed Starns to be the state’s head public defender in 2020. Prior to taking over, he was a prosecutor in Avoyelles Parish and a founding member of the LPDB. He had no experience himself working in the trenches as a line public defender, although he had done some criminal defense work in private practice. 

In private practice, Starns also defended the state against the 2017 SPLC lawsuit alleging that its representation of poor people was deficient. The lawsuit, he wrote in a filing, was filled with “loud howls regarding a lack of funding.” 

Starns, whom Landry reappointed to the newly empowered role last month, has maintained that he wants to create a more stable system with better paid public defenders, but his critics say he’s not experienced enough in public defense to handle the job. Several people told Bolts that Starns does not believe in caseload standards, a tool the American Bar Association recommends to determine how many cases defense lawyers should handle at a time to ensure their clients receive effective representation. 

The standards are also used by policymakers to decide funding by looking at how many lawyers are needed to handle an office’s caseload. Instead, Starns measures how much money each district receives by examining how many people it represents, a figure that public defense experts say doesn’t accurately reflect the workload of each office because some people may have several cases and those cases can vary in severity. “Now I have real concerns that he is going to just develop these fantastical imaginary guidelines to fund those officers at a bare bones level,” said Flozell Daniels, who served on the LPDB for nearly 11 years until 2023.

Though parishes still rely on traffic tickets and court fees to partially fund indigent defense, the legislature under Edwards had increased state funding for public defense in recent years. Last year, it allocated more than $50 million, nearly $20 million more than in 2015. Despite those increases, district defenders still have trouble attracting and retaining line defenders—who are not state employees and do not receive state benefits such as health insurance and retirement, although some district offices pay for line defenders to buy private insurance plans.

“Excessive workloads, depleted staff and attrition continue to be the biggest obstacles regarding our representation,” wrote Danny Engelberg, the Orleans Parish district defender, in the 2023 LPDB annual report. 

The pay raises last year were a bid to improve these staff and retention issues, said Daniels, who sat on the board when it approved the raises. “I see no reason why we shouldn’t have competitive salaries to ensure that we can attract the best talent because that’s what’s going to really create some high functioning public defenders,” he said.

Daniels said Starns was clearly angered by their decision. During his virtual coffee hour with district defenders last month, Starns called the raises an “abomination” and an “irresponsible obscenity.” 

And his decision to reverse the pay raises was one of his first moves in his newly empowered role. Prior to the raises, defenders made between $50,000 to $155,000 per year, according to the Louisiana Illuminator. After the raises, they made between $95,000 to $160,000. Their compensation was based on several factors, including a $20,000 bonus for defenders who solely worked in public defense and did not work in private practice. 

Under the new scheme, according to a slideshow detailing the plan obtained by Bolts, district defenders will make between $60,000 and $180,000. 

The state hasn’t yet passed this year’s budget so it’s not clear how much Starns will have at his disposal, but he says his plan to change how district defenders are paid will result in better paid line defenders. Still, two district defenders told Bolts that even marginally better pay won’t make those jobs easier to fill. They said they regularly give their line defenders raises but still struggle to retain them because it’s difficult to compete with private law firms that can pay much more and offer a more comfortable schedule and benefits.

John Lindner, head defender of the 22nd Judicial District, which covers St. Tammany and Washington parishes, told Bolts he hadn’t asked for a raise in his 12 years on the job, largely because his office was facing financial issues. Last year’s raise, he calculated, amounted to a 2.5 percent increase for each year he’s worked. “In the grand scheme of things, you know, it wasn’t a big, big thing. It was something we should have gotten anyway.” 

The new plan promises bigger bonuses for districts that collect more in conviction and user fees. A district defender overseeing a district that collects $1 million in those fees will get a $20,000 bonus, while a defender whose district collects less than $250,000 will receive nothing. 

Defenders receive a 25 percent bonus for taking on their own caseload, a factor that some took issue with. “In a district my size that’s almost impossible,” said one district defender. “So I have no opportunity to get that additional [money] because I’m not able to take a caseload because I’m presently managing my district?”

Starns also announced that there will be no restrictions on district defenders working in private practice, dissolving the previous limitations on the extra work. The move contradicts ABA standards, which say that lawyers working at defense organizations should work full-time and not engage in private practice work.

Prior to Starns’ announcement about salary reductions, some worried that the cuts will force talented district defenders to quit. 

“Is everybody going to quit at once? I don’t know,” a district defender who asked not to be named out of fear of retaliation told Bolts. “I mean, you know, my biggest fear is that people won’t quit. And they’ll keep it part time because of the insurance. And then like, things will just run into the ground.”

After the meeting, Lindner said he was focused on changes that will improve indigent defense for clients. 

“What I want to see as an end game, is I want to see a public defender system that provides the best possible representation for poor people. And I want them properly trained, and I want them, you know, compensated fairly,” he said. “And I think it’s, you know, we still have a long way to go with that.”

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When Christy Craig started working at the public defender’s office in Clark County, Nevada, in 1998, she didn’t plan to ever run for judge. “I knew that was my gig,” Craig said. “I couldn’t have been happier to be there.” Since then, Craig has represented thousands of defendants and scored landmark wins in suits against the State on issues of correctional mental health and cash bail. 

But soon Craig will be leaving the public defender’s office to become a judge on the Eighth Judicial District Court, the criminal and civil court of Clark County, which includes the Las Vegas metro area. 

It was a colleague who gave her the idea to seek election last January. “I was sitting in my office and I was complaining about the bench,” Craig said. Suddenly Belinda Harris, a public defender who had already announced her candidacy for a judgeship, shouted from her office: “Well, shut up and run!” 

So Craig entered the race and won on Nov. 3—alongside Harris and five other public defenders.

These seven public defenders, all women, many women of color, are now set to become judges in January. Harris is heading to the North Las Vegas Justice Court; the others were elected to the Eighth Judicial District Court, despite many being significantly outraised by their opponents. 

The results will alter Clark County’s political landscape, strengthening the hand of those who want to change practices that fuel mass incarceration. Several of the public defenders described their candidacies as an effort to “balance” the courts, as judgeships in Clark County have historically been dominated by former prosecutors, as is often the case nationwide. 

Organizers interested in criminal justice reform pushed similar efforts to “flip the bench” this year in other parts of the country, including New Orleans and Hamilton County (Cincinnati), Ohio, where public defenders and others with experience representing marginalized people successfully sought judicial seats.

“I hope that it means that we are able to make the system more fair,” said public defender and judge-elect Erika Ballou, who was endorsed by Senator Bernie Sanders. “I understand that a lot of times people who are in the system have done something wrong, but that shouldn’t ruin their life. It shouldn’t define everything.”

Judges have immense power over defendants’ lives and over the direction of the criminal legal system as a whole. From setting bail amounts to meting out sentences, judges make the choices that either maintain the status quo or chart alternatives to locking people up.

But judges depend on collaboration with prosecutors, and the public defenders are already facing backlash before even taking the bench. Clark County District Attorney Steve Wolfson, who in the past has resisted reform proposals to end cash bail and the death penalty, called for Nevada to move to replace judicial elections with appointments in late November. Wolfson raised the issue in direct response to the public defenders winning judicial elections. 

Still, local advocates hope that the elections will be part of a growing momentum for criminal justice reform that has been building in Nevada.

—

Over the last two years, Nevada has seen numerous changes to its criminal legal system. In 2019, the state legislature passed laws shortening sentences for many nonviolent offenses, increasing access to diversion programs, re-enfranchising formerly incarcerated individuals, providing monetary compensation for the wrongly incarcerated, and banning private prisons. In September 2019, Craig was part of a team that brought Valdez-Jimenez v. Eighth Judicial District Court before the Nevada Supreme Court. The court’s decision in April of this year flipped cash bail on its head, placing the burden on prosecutors to prove that a defendant should be held on bail, rather than asking defendants to prove that they should be released. 

The Valdez-Jimenez ruling “basically says that the standard way of doing cash bail in Nevada for decades is blatantly unconstitutional,” said Alec Karakatsanis, executive director of Civil Rights Corps, which worked with the public defender’s office on the case. “If the state wants to jail someone prior to trial because it believes that the person poses some kind of a danger, they actually have to put on evidence in a rigorous legal proceeding.”

Yet the discretion of individual judges remains extremely important. “Even under those standards, judges can just say, ‘I’m looking at the evidence and I find that the person is a danger to the community,’ and they can just repeat those words without genuinely exercising real thought,” Karakatsanis added.

Newly elected judge Belinda Harris said she plans to treat the Valdez-Jimenez standards seriously, though she added she would set bail if she deemed it absolutely necessary. “I don’t think that people’s freedoms should be tied to whether they can make bail or not,” Harris said. 

Harris was elected judge of the Justice Court of North Las Vegas, where the initial stages of a criminal proceeding take place, including the decision on whether to set bail in the vast majority of criminal cases. That decision will be fully within Harris’s discretion.

Harris was also the first Black judge elected without first being appointed in North Las Vegas, which has a large Black population compared to the rest of Clark County. “I think there’s something to be said that most of the clients that are being serviced look like me,” Harris said. “We’re diversifying the bench.” Most of the public defenders recently elected as judges—Harris, Ballou, Monica Trujillo, Jasmin Lilly-Spells, and Dee Butler—are women of color, a historically underrepresented group on the Nevada bench.

Ballou said that she hopes the newly elected judges will be able to move the Clark County justice system toward a rehabilitative model of criminal justice. That could entail finding alternatives to incarceration.

“Maybe we’ll be able to get people the help they need rather than sending them to prison, which just warehouses them, and doesn’t help them in any way to come out and not do this again,” she said. “Do they need drug help? Is it unresolved trauma? Can we give people some mental health counseling? Can we do something so that this cycle does not continue? That’s what I hope.”

Scott Coffee, a public defender, emphasized that beyond specific policy changes, the new judges’ experience as public defenders could translate into more compassion in court proceedings. “Because a lot of these new candidates have dealt with people accused of crimes one on one, they know they’re human beings,” he said. 

“They understand the difficulties,” Coffee added. “It’s easy for me to get to the courthouse, but if you’re homeless, living eight miles from the courthouse, making an 8 o’clock court appearance isn’t always the easiest thing to do.” 

“The biggest change that you’ll see come to the bench is that there’s going to be more empathy for the struggles that people face, particularly when they’re poor,” Coffee said.

—

Without big fundraising hauls, the candidates relied on grassroots organizing to educate and turn out voters. Organizations working in communities affected by poverty and the criminal legal system played a significant role in pushing the public defenders to victory. 

Most of the candidates were outraised by their opponents several times over. Special Public Defender Monica Trujillo was victorious despite raising only $77,000 to her opponent’s more than $400,000, including $75,000 of his own money, the Las Vegas Review-Journal reported. Craig was outraised by more than a factor of 25, raising only $14,000 to her opponent’s $360,000. Ballou raised no money at all. One of the candidates did receive significant outside help; Carli Kierny was supported by radio ads paid for by a PAC largely funded by megadonors Sheldon and Miriam Adelson, which mostly supported conservative-leaning candidates.

The candidates attributed their victories in the face of such fundraising gaps to their longtime presence in the communities they serve. “I’ve been doing things in the community for the 17 years that I’ve lived here,” Ballou said, noting her work with organizations including community theaters and Planned Parenthood. “I know a lot of people, people know who I am.”

Harris also said that her roots and longtime presence in North Las Vegas were helpful. “It was really a grassroots, community effort,” she said of her campaign. “I’m down on the ground, you know? I’m at the cookout, I’m at the neighborhood barbecue.”

Harris said she received support from her clients at the public defender’s office. “There would be times that I would meet a new client, and they’d say ‘You’re running for judge, my whole family is gonna vote for you!’” 

The candidates also benefited from the work of local grassroots organizations such as Mi Familia Vota Nevada and the anti-incarceration network Mass Liberation Nevada. MLN mobilized dozens of volunteers for phone banks and canvasses that reached thousands of voters, held video forums to educate voters and introduce them to the judicial candidates, and organized with incarcerated individuals to get them to encourage family members to vote. 

Leslie Turner, an MLN organizer and formerly incarcerated person, said the group’s efforts were particularly important because of the effect that the criminal legal system has on the group’s core constituency. 

“We have a higher chance of actually being in court in front of some of these judges, so it’s important that we’re putting people on the bench that understand our perspective, understand why we’re saying Black Lives Matter … and all of the factors that come into play when somebody might end up in the courtroom,” Turner said.

Much of MLN’s organizing centered on reaching out to formerly incarcerated people. In 2019, Nevada adopted a law restoring the voting rights of tens of thousands of people with felony convictions; all citizens who are not in prison can now vote. 

“That garnered a whole new base of voters,” said Jagada Chambers, an organizing fellow with MLN who is formerly incarcerated.

Many formerly incarcerated people were initially unaware that they had become able to vote, making grassroots outreach—some of which stalled under the COVID-19 pandemic—essential. 

“I literally had to pull out the bill, the paperwork, and go over it, and be like ‘You actually can vote, for real,’” Turner said. “It was really empowering.”

The fact that many of the candidates were participants or legal observers at Black Lives Matter protests over the summer was helpful in mobilizing volunteers. A frequent recruitment pitch was that “these are the same lawyers that are out in the streets supporting us and this movement, so we need to support them,” Turner said. 

—

Since the Nov. 3 elections, DA Wolfson has taken issue with the incoming wave of judges.

“In past elections, there was a greater correlation between how much effort a candidate put into the campaign and the result—a more direct relationship between efforts and results of fundraising and who won,” Wolfson said, according to the Las Vegas Review-Journal. He also raised doubts about some of the winning candidates’ qualifications.

Some public defenders criticized Wolfson’s comments. “That guy lives in a totally different world than 90 percent of our community,” said public defender John Piro. “It’s a crowd that’s not taking time to recognize that there’s systemic issues here with both poverty and racism that have affected our system.”

Wolfson’s office did not respond to multiple requests for further comment.

Fifteen political organizations also signed on to a statement from Nevada Attorneys for Criminal Justice (NACJ) denouncing Wolfson’s comments, including the Clark County Democratic Party, the Las Vegas NAACP, Mi Familia Vota Nevada, and the Las Vegas Democratic Socialists of America. The letter claimed that Wolfson’s commentary “ignores the greater value in a democracy of earned community reputations over access to finances,” and also, “denies the extensive professional qualifications of our newly elected judges.”

NACJ president Sarah Hawkins told The Appeal: Political Report that Wolfson’s remarks on fundraising “devalue members of historically marginalized communities, who cannot contribute financially to campaigns, who only have their votes.” 

“He didn’t complain [about electing judges] when prosecutors with law enforcement endorsements repeatedly ascended the bench over the past decade,” Hawkins added.

But Harris was unperturbed by Wolfson’s comments. “I just don’t pay him any mind, because as a judge, I’m just gonna look at what’s before me, and not his thoughts or opinions,” Harris said. “I ran my race. I had some DA colleagues … tell me I was gonna lose, but here I am.”

The post How Public Defenders Rocked Las Vegas Judge Elections appeared first on Bolts.

In New Orleans, two public defenders were elected to become judges, marking a significant opportunity for criminal justice reform.

On Nov. 3, Angel Harris upset incumbent Franz Zibilich to win a seat as a judge on Orleans Criminal District Court. No judge on the criminal court has lost a bid for re-election in over 40 years.

Nandi Campbell also won a seat on the criminal court, beating her opponent, Lionel Burns, in a landslide.

In a victory speech, Harris said her win shows that voters believe “it is time to reimagine our criminal court system. We aren’t going to stand by and allow our communities to be treated with disrespect.”

Harris and Campbell were part of a slate of seven current and former public defenders running for judicial offices across the criminal, municipal, and juvenile courts in Orleans Parish. Their platforms included challenging the cash bail system and seeking alternatives to incarceration in a state often called the “incarceration capital” of the United States. 

Though five of the candidates lost their races, their campaigns—and the victories of Harris and Campbell—are remarkable because, across the country, there’s a lack of judges with experience representing marginalized communities. In federal and state courts, judges are far more likely to have worked as prosecutors than public defenders. 

In an October interview with The Appeal: Political Report, Harris talked about the challenge she faced.

“I am absolutely going up against the political machine,” Harris said. “I’m talking about bucking a system, so, of course, the establishment folks aren’t going to jump on board with me.” 

Money was a key struggle for first-time candidates like Harris. As of their September filings, Zibilich had over $150,000 in campaign funds. Harris had under $14,000. Zibilich was endorsed by powerful local political groups like the Black Organization for Leadership Development (BOLD) and the Algiers Political Action Committee (APAC), which have endorsed and supported establishment figures within the criminal justice system.

Harris’s resume includes working as a public defender in both Orleans and Calcasieu parishes, a staff attorney with the Capital Punishment Project at the ACLU, and an attorney at the NAACP Legal Defense and Educational Fund. (Harris also used to work for The Justice Collaborative, of which The Appeal is a project.)

Like others who made up the public defender slate of judicial candidates, Harris ran on a platform critiquing the cash bail system and advocating for criminal justice reform. 

Zibilich, who has served as a criminal court judge for nearly nine years, touted his efficiency in addressing the cases in his docket. Though Zibilich has earned awards for efficiency, he has been accused of disproportionately favoring prosecution at the expense of defendants. Zibilich has also faced criticism for comments he made during a 2016 sexual battery case. After a jury acquitted a 35-year-old man of rape but convicted him of stalking and illegally entering the home of a former girlfriend, Zibilich said he was considering vacating the conviction entirely because he thought the victim had sent “mixed messages” to the defendant.

Unlike some of the other progressive public defender candidates, Campbell managed to earn the endorsements of powerful political organizations like BOLD, the Community Organization of Urban Politics, and Voters Organized to Educate (VOTE), some of which endorsed candidates running against the other public defender candidates. 

Campbell joined the Orleans Public Defenders office in 2008 and, the following year, she launched her own firm and worked as counsel with a leading criminal defense firm. She is an associate professor at Tulane Law School while still working as a contract public defender. 

Burns, who has been both a prosecutor and a criminal defense attorney, previously ran for district attorney in 2014 against incumbent Leon Cannizzaro, but was disqualified.

These elections could serve to transform the local criminal legal system because judges exercise considerable discretion. In earlier elections this year, New Orleans advocates put the spotlight on judges’ roles in overseeing evictions. Advocates emphasize that there are many other ways a different type of judge could challenge the status quo in New Orleans. Judges could be more aggressive in challenging evidence presented by police officers, or in holding prosecutors accountable if they fail to disclose favorable evidence to the defense team, as they are constitutionally required to do. Judges could also choose not to impose high bail amounts or long sentences.

NOLA Defenders for Equal Justice, a group of former and current public defenders, came together earlier this year to advocate for the progressive slate of judge candidates. Jared Miller, a member of the group and a staff attorney at Orleans Public Defenders, told the Political Report in October that “people accused of crime who are Black or brown are people who the [criminal legal] system treats with a lot less humanity. … But these candidates have the experience of knowing these clients at a personal level.”

“To have these candidates who stand for our values come together and try to make change is really uplifting,” Miller said.

The post Two New Orleans Public Defenders Elected Judge in a Push to “Flip the Bench” appeared first on Bolts.

In July, during a three-day period when candidates for elected office in Orleans Parish had to file their paperwork, court clerk Arthur Morrell set up a Facebook Live video feed in his office.

As each candidate ambled in, masked and holding documents, Morrell greeted them, “Hello, you are on Facebook Live, can you please introduce yourself?”

Familiar faces appeared, like an incumbent judge who was filing for re-election and an ambitious New Orleans City Council member who was running to be district attorney.

But then, a series of unexpected candidate hopefuls showed up: seven current and former public defenders who were seeking election as judges, including Derwyn Bunton, chief of the Orleans Public Defenders. 

Jared Miller, a staff attorney at Orleans Public Defenders, told The Appeal: Political Report that some of his colleagues were stationed at the courthouse to watch the filings and send text updates to a group of other public defenders.

“There was huge excitement about what was going on,” Miller said.

Their candidacies stood out because, across the country, there’s a startling lack of judges with experience representing marginalized communities. In federal and state courts, judges are far more likely to have worked as prosecutors than public defenders. Graham Bosworth told the Political Report that in Orleans Parish’s last regular judicial election six years ago, he was the only person with experience as a public defender who ran for a seat at the courthouse. 

Bosworth is running again this year, along with Bunton, Teneé Felix, Angel Harris, Meg Garvey, Steve Singer, and Nandi Campbell. Most have worked at the Orleans Parish defender’s office, while others have contracted as legal aid attorneys for indigent defendants. 

NOLA Defenders for Equal Justice, a group of former and current public defenders, including Miller, has formed to advocate for this slate of candidates, who are running for criminal, juvenile, and municipal courts. 

They say that electing judges with legal aid experience and progressive platforms could transform the city’s legal system, for instance by diminishing the reliance on cash bail. 

Judges exercise considerable discretion. In earlier elections this year, New Orleans advocates put the spotlight on their role in overseeing evictions. Advocates stress that there are many other ways a different type of judge could challenge the status quo in New Orleans. Judges could be more aggressive in challenging evidence presented by police officers, or in holding prosecutors accountable if they fail to disclose favorable evidence to the defense team, as they are constitutionally required to do. Judges could also choose not to impose high bail amounts or long sentences.

“Being a good judge is more than just knowing the law,” said Bosworth, who is running to be a criminal court judge. “It’s being willing to step in and do what is right when the system fails. And that’s where you’re not just calling balls and strikes, you are making sure that due process and equal protection actually occur.” 

This slate of candidates represents the latest success in the renaissance of the Orleans Public Defenders office. 

Before Hurricane Katrina in 2005, a robust public defenders office didn’t exist in New Orleans. There was only the Orleans Indigent Defenders program, started in the 1970s. It was chronically underfunded and did not have any full-time attorneys on staff. In the wake of Katrina, the program effectively collapsed. 

Judge Calvin Johnson, who was the first elected African American judge in the Orleans criminal court and chief judge at that time, enlisted attorneys to shape a new public defender’s office with the influx of recovery money coming into the city. They recruited recent graduates of top law schools across the country to join the office. 

Bunton, the chief public defender since 2009, told the Political Report he was inspired to run by watching younger attorneys he had mentored take the plunge.

“I was looking around and I’m like, how are they more courageous than me?” he said. “[Public defenders] come from a different pedigree than what we’re used to on the bench. Most of the [judges] come from prosecutorial backgrounds or law enforcement backgrounds.” Bunton is running to be a criminal court judge and is facing off against Rhonda Goode-Douglas, a trial attorney and former prosecutor.

Bunton said there are a handful of things that he can do as a judge to use the sensibility he honed as a public defender and enact procedural reforms. If elected, he wants to incorporate technology into the courtroom and make its workings more transparent. He also plans to schedule his dockets with consideration for the plaintiffs and defendants who may not be able to easily take time off work to be present for their case. 

Bunton and the other candidates have been particularly critical of the cash bail system. 

Bosworth told the Political Report that “there are far more effective ways to ensure people appear in court that don’t create disparities based on economic means.” His opponent, Kimya Holmes, a staff attorney for the Capital Defense Project of Southeast Louisiana, told Nola.com that the cash bail system shouldn’t be overhauled, it just needs “tweaking.”

Louisiana’s pretrial detention rates are the highest in the country. Studies show that money bail can reinforce social inequities as it forces low-income people to choose between taking on debt to get out of jail or staying locked up and risk losing their work and housing. 

Judges can use alternative pretrial services to compel court appearances like check-in calls and texts, as well as arranging for transportation. The City Council has passed an ordinance disallowing bail on most municipal charges. But Louisiana law mandates that a judge sets money bail for every charge a person faces. And judges have wide discretion over the amount; one New Orleans judge, Harry Cantrell, routinely set bond amounts so high—effectively trapping poor people in jail—that a federal court ruled his practices unconstitutional.

The bail system funds judges, sheriffs, prosecutors, and public defenders in New Orleans, while enriching bail bond agents who post bail for people who can’t afford it while charging exorbitant fees. In 2015, 97 percent of the people who posted bond in the Criminal District Court of Orleans Parish did so through a bail bond agent.

Agents like Blair Boutte wield political influence by helping recruit candidates for local campaigns, racking up financial contributions, and wrangling endorsements. Some say Boutte uses aggressive tactics against rivals. 

Angel Harris has come up against this opposition in her race against incumbent Franz Zibilich for a criminal court judgeship. She is the only public defender candidate running against an incumbent in criminal court. (Harris used to work for The Justice Collaborative, of which The Appeal is a project.)

“I am absolutely going up against the political machine,” Harris said. “I’m talking about bucking a system, so, of course, the establishment folks aren’t going to jump on board with me.” 

Money is a key struggle for first-time candidates like Harris. As of their September filings, Zibilich has over $150,000 in campaign funds. Harris has under $14,000.

“But to even start pushing back on how we are doing things and talking about bond and talking about bail reform and pointing out racial disparities, people are like, ‘Oh no,’” Harris said. “Voters need to really recognize the power that they have in this moment. … I want people to know that they have the power to determine who’s going to be sitting on that bench.” 

NOLA Defenders for Equal Justice has helped raise the profile of local judicial elections through social media and candidate forums that have tied into broader public conversations around criminal justice reform.

“These systems have operated over many decades to make sure that Black lives don’t matter,” Miller of Orleans Public Defenders said. “People accused of crime who are Black or brown are people who the system treats with a lot less humanity. … But these candidates have the experience of knowing these clients at a personal level.”

 Miller said this experience is what shapes the values that public defenders share.

“The thing about being a public defender is that it is a very hard job in which you’re dealing with a lot of pain and misery and trauma, to be honest, and you don’t often win,” Miller said. “To have these candidates who stand for our values come together and try to make change is really uplifting.”

He hopes that if the public defender candidates are elected, they will not only exercise meaningful discretion with individual cases in their own courtrooms, but also become role models and leaders in criminal justice reform citywide. 

Bunton agrees that judges can be powerfully influential.   

“There’s a lot of things that judges can do, there’s a lot of momentum they can create,” Bunton said. “Every big Supreme Court case we’ve ever had started with the little ol’ judge making a call.”

The post New Orleans Public Defenders Are Mobilizing to “Flip the Bench” appeared first on Bolts.