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October 15, 2005

Defender's Dilemma: Is it ever better for your client to be in jail?

My first ever client was arrested for the third time last week—thanks to me. I'm really starting to wonder if I'm really helping this guy at all.

Long story short: When he was first arrested on a minor misdemeanor, I was assigned to his case and I argued for his release on his own recognizance while we prepared for trial. He was released with conditions to stay away from a designated area of the city. The next day, he was arrested in that stay-away area and held for 5 days, after which I again went to court and argued for his release on his own recognizance. He was released and we set a date for a status hearing in both cases for about two weeks later. Two weeks later, he failed to appear in court and the judge issued a warrant for his arrest. Thus, last week he was picked up on that warrant and hauled back into jail; luckily, he didn't get any new charges, but the failure to appear is the most serious charge of the three—it carries a minimum of 90 days in jail if he's convicted and as far as I can tell we don't have much of a defense for that. Bringing the story up to date, we went to court last week and argued for his release once more. To my own (and my supervisor's) suprise, the judge let him go on his own recognizance to await trial. We set a trial date for about three weeks out.

After our appearance, I set an appointment with my client to meet the following day to talk about what we were going to do and to impress upon him once again the importance of staying in touch with me and making his court dates. The next day, he didn't show. This is basically what has happened the last two times he was released: I set an appointment, he misses it, and then I don't hear from him again until the next time he's arrested. He's homeless and will not tell me where I can find him on the street (even though I know many homeless people tend to hang in relatively small areas with which they are familiar). I have looked for him in the neighborhoods where he's been arrested but I have never been able to locate him on my own.

Hence, my dilemma: Am I doing this guy any favors by continuing to get him out of jail? Of course, he never wants to be in jail, so he's always happy to be released. However, he's now facing about six times the potential jail time he could have even been eligible for if we would have just pleaded guilty on day one, and honestly, I kind of feel responsible for that. I mean, I've been doing what he wants—getting him out of jail. However, in doing so, I've helped make his situation much, much worse.

So what do you think? And this is a question especially for the public defender types out there: Is it ever better for your client to remain in jail? And does this sound like one of those times? If my client fails to appear for trial in a couple of weeks, I probably won't be able to argue him out of jail a fourth time; I think that will be the end of the line for him. But should I have argued for his release the second time? The third? Is there a limit here, or should you always do what your client wants you to do in this type of situation?

Posted October 15, 2005 01:13 PM | 3L crimlaw

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I'm not a public-defender-type, but I am a personal-freedom type. His life is his responsibility, not yours. You, as a lawyer, are there to help him do what he wants. When you want to start deciding what's best for people against their wishes, run for office. Or move to Russia.

Posted by: jgt at October 15, 2005 08:06 PM

Respectfully, I disagree with jgt. When I did the criminal defense clinic there were many times that I counseled my client about the pros/cons of staying in jail. We would volunteer to do jail chains and there were quite a few people who I felt would be better served by staying in jail for a couple more weeks (then their time would be served).

Where I agree with jgt is that it is the clients decision. If there is a way to keep them out of jail and they want out -- you do it. There might be times when it's best to keep them in jail against their wishes but I can't think of it.

I know that my public defender friends who do death penalty cases will often get the client put into solitary confinement against their wishes because it's for their own good.

It's a difficult ethical question, but I think if you're dealing with simple misdemeanors or felonies that aren't too big a deal you should present the pros and cons to the client and let the client decide.

Posted by: Curtis at October 15, 2005 08:44 PM

Some things are your call, some things are your client's call. Assuming your client wants to go home, I think it is always your responsibility to argue for him to go home.

Jail is not a nice place, even compared to life on the streets. Imagine if you didn't argue for his release and he got killed in jail... Don't think it doesn't happen. You don't know jail, and you can't know if it's better for your client to be there.

That said, are their times when my job is made easier by the fact that my client is kept in jail? Certainly. Just like your situation, I had a client rearrested a bunch of times, I could never find her between court dates, and she always got rearrested. Eventually (the 4th time), the judge set bail (which she'll never make). It's great for me - I can meet with her ten times a week now if I want. (This is the client with the annoyoing housing court lawyer.)

But if I could get her released today, I would. My job isn't for me to make her case easier for me, or for me to protect my clients from themselves. My primary job is to get my clients their freedom, whether I think it's best or not.

Posted by: blondie at October 16, 2005 12:46 AM

Echoing what other posters have said, this isn't your call. You aren't his mother/father, you are his lawyer. You do what he wants you to do.

Posted by: krepsm at October 16, 2005 10:01 AM

Blondie always has the right answers. But I like the issue you've touched upon (an issue I know I have and will continue to wrestle with)- which is our desire to help improve the quality of life for our clients. You want to do what's best for your client, and a few days in jail looks better than 90 days in jail, and it's certainly better than pissing off the judge. I think that what's in our client's best interests is a far narrower concept from the perspective of a public defender than from many other roles. First, we have to let clients make their own decisions, even in cases like this where the client decided not to show up repeatedly; otherwise we're doing the prosecution's job. Second, while we have to be cognizant of all of our clients' needs and circumstances, our biggest responsibility is: get 'em out today. Unless the client wants otherwise, which is rare.

I'm glad to see that you have a bigger view of what's going on with your clients, and I like to see that you really want to make things better for your client overall - not just today. All advocacy comes with different limits, I suppose.

Posted by: womanofthelaw at October 16, 2005 10:18 AM

p.s. what the hell did you argue the second and third times around? I'm taking notes.

Posted by: womanofthelaw at October 16, 2005 10:20 AM

Thanks everyone for all the responses to this. I wonder if any of you would have a different response if I told you that I really don't think this client "chose" not to show up for his court date. Hypothetically speaking, what if the client appears to not really be living in the same world as we are, say, someone who hears voices and talks to people who aren't really there? What if the client sometimes seemed to understand what you were saying and to respond intelligently to your questions, and other times just mumbled at you like he was talking to someone else, perhaps someone from Mars?

I suspect most of you will stick to your "do what the client wants" answer, and I agree that you're right about that. But after just two summers of interning at PD offices I've already seen far too many cases where what really seemed genuinely best for the client's long term liberty, health, and well-being interests was to get counselling, therapy, and/or drugs to even out his mental state. I've even heard clients ask for something like this, but the PD doesn't really know where to go with it. And in some of the same cases, what the client seemed to need (and sometimes want) most was simply someone -- anyone -- to care about and care for him. How "the system" provides that, I just don't know.

No, I'm neither a doctor nor a parent, so it is not my responsibility or place to tell my clients what they should want or do, but it really can be sad and heartbreaking and frustrating when you suddenly seem to be their only friend in the world and the only thing you can do is try to get them out of jail and hope they'll make the best of it from there. I've heard of some PD offices (e.g. Montgomery County, MD) are starting to offer more than just basic criminal defense services -- adding, for example, mental health treatment to their offerings. Perhaps this demonstrates a more expansive idea of criminal defense work -- they're helping to defend the rights of some clients just by helping them to live in the world a little better and stay out of trouble in the first place.

Posted by: ambimb at October 16, 2005 12:13 PM

Oh, and I'm not making any brilliant arguments to get this guy out of jail. I think it's just another case of the judge not wanting to shoot the puppy (see #8). In fact, in this most recent time in court, there were a couple of lawyers sitting in the courtroom who started grumbling to each other when the judge said she was going to release my guy on PR. The judge actually scolded them for talking in court. I didn't hear what they were saying but I had a feeling it was something like "punk kid is getting away with murder here just because he's in law school."

Posted by: ambimb at October 16, 2005 12:48 PM

I don't think "the system" provides those services, period, and even if it did, I would have grave reservations about the system's ability to provide and/or administer those services well. Many PD offices have social workers, or specialized mental health or drug units, which is a step in the right direction, and it might be the best we can do as members of the very system to which we object. As a former social worker, it's a difficult limit for me to accept, but it's a bit of a relief to know that the well-being of each of the clients on my caseload isn't solely my responsibility. Because that is a LOT to take on.

Posted by: womanofthelaw at October 16, 2005 02:47 PM

Maybe not wanting to shoot the puppy... maybe just giving your client the rope with which to hang himself. Who knows... it is a rough situation to be in, from your perspective.

But as others have said, your role is to respect his wishes and offer the best advice you can. If you adequately warned him of the consequences of his actions, you can't be held responsible for his poor choices.

That certainly doesn't make the job easier, but really, he is creating his own circumstance.

Posted by: Dave! at October 16, 2005 04:12 PM

I'm not sure if this sheds light on anything, but on Law & Order: Criminal Intent last night they convinced a kid to testify against his mother because she would be better off in jail (then she could get rehab, where otherwise she wouldn't be able to afford adequate psychological services). So, maybe if you have someone on their second or third meth offense, they might be better off spending a long time in jail.

Posted by: Kelly at October 16, 2005 11:57 PM

I didn't always think this way, but I strongly disagree with anyone who says someone is better off in jail. Like Blondie said above, people die in jail. And get raped, by inmates or guards. People get HIV or TB. That's what the system gives them. People do NOT get rehabilitative services, no matter how many times the court orders it. And even on the outside chance that they did, that's not worth potentially losing a family for, right? Or losing housing. Or getting a criminal record (or a more extensive criminal record). The criminal system is just NOT the place that should be providing these services. The criminal system can't even handle trials. Who wants a judge whose goal is to dispose of 50 cases a day to be the one making your rehabilitative decisions? You want a corrections officer deciding what's best for you? It's truly a myth that the "system" is better for people because it provides services people wouldn't otherwise get.

Am I the only one on this rant here? I figured there'd be more experienced criminal law people jumping on this issue more eloquently than I.

Posted by: womanofthelaw at October 17, 2005 06:22 PM

AI, it seems you are a little caught on the picket fence between your idealism (wanting to do what is objectively 'best' for the client) and the reality of being a PD in a judicial system whose rules & remedies are necessarily limited.

As a PD you can only accept responsibility to the extent of your authority, which is circumscribed by these limitations. If you find them "sad and heartbreaking and frustrating" your career there will be short. If you insist on viewing your cases in a context beyond the extent of your authority, you will reduce your effectiveness in working inside those limits.

Seeing yourself as a client's "only friend in the world" is a recipe for disappointment, and maybe not an ethically supportable place to locate yourself.

Posted by: MB at October 17, 2005 06:41 PM

I'm a little late here, but I think your responsibility is to get him bail if he wants it. If after getting released, he goes out and screws up, it's on him, not you.

That being said, there are some advantages to remaining in jail - such as not getting into further trouble, collecting jail credit and so on, but the final decision always is that of the client.

Posted by: Gideon at October 18, 2005 03:55 PM

The problem is, everyone who has commented here is right!

Most of the time you'll want to err on the side of enchancing your client's freedom and autonomy. However, I can cite individual clients of mine, like Ambimb's client, who haven't been capable of exercising free and autonomous decisions even when they were on the outs, due to their addiction, mental illness, or both. You're trying to get favorable outcomes for your clients' lives at all times. Sometimes it's immediate freedom, sometimes it's freedom deferred. There will be times - arguably - when staying in with reduced access to street drugs and marginally better health care is preferrable for an individual than being on a runner on the street.

For instance, I had a client who self-initiated entrance into an intensive 1-year-plus residential inpatient program, post-plea but pre-sentence. He was furloughed to attend, and the jail let him out the door at the appointed time. The van from the rehab center showed up five minutes late. By then, Client was gone. Sure, jail sucks; the prospect of OD'ing by the side of the road sucks too. Of course it's not your choice to make, but you owe your client your concern and your reasoned advice.

I really admire the p.d. offices which are trying to connect clients with mental health and substance abuse services. It's true that we may not be our client's only friend in the world, but most days we're the only one in the courtroom. Ambimb, it's good to follow you working through this issue - it shows professionalism and compassion. Just wait you're a drug court p.d. one day, though, then you'll really feel the strain of irreconcilable duties! Good luck out there.

Posted by: Skelly at October 20, 2005 02:13 AM

*crickets chirping* AI - where'd ya go?

Posted by: WomanOfTheLaw at October 20, 2005 08:00 AM

Sorry, I fell a little behind on the comments here, but since I just made a link to this post, I'll add one more comment, mostly in support of WOTL's request that someone more senior jump in.

Jail is a nasty place. Put it this way... ever donate blood? If you do, you'll see that on the form, one of the questions is, "Have you ever spent 72 hours in jail?" Just 72 hours, and they're precluding your blood from donation. Amazing, isn't it.

You want to help? You bring the client back to your office immediately after court, and sit them down with a social worker. If your office doesn't have that, you find the lawyer or the person you know with the most connections (the person who knows the shelters, the programs, and the hospitals) and you get him or her to come to court with you to talk to the client. You offer them your services and your referrals, but at the end of the day, your job is to do what your client wants you to do. Which, in this case, is to keep you out of jail.

Now, let us know when client picks up arrest #4. Sooner or later, the judge will set bail over your objection. It'll be interesting to see, at that point, whether you think jail "helps" the client at all. I expect that you'll find he'll be worse off - he may become depressed and whither away, or any latent mental illness will become much more pronounced. Keep us updated, inquiring minds want to know.

Posted by: blondie at October 20, 2005 10:46 PM

Here's another reason to keep people out of jail: D.C. Inmates Tortured, Mothers Say.

This client has trial tomorrow. If he shows up, then I'll feel a lot better about the whole thing, obviously. If he doesn't show, well, you're all correct that it's his life, not mine. That's a hard thing to accept, but it's true.

This past summer I observed three public defenders argue for about three hours about similar issues related to the extent of their responsibility and how much they should work to influence client decisions for what they felt was the client's own good. The conversation was amiable but heated, and there was no clear conclusion -- a little like on this thread. ;-)

Posted by: ambimb at November 2, 2005 08:50 AM

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