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As citizens, we know that for the good of everyone we should simply stay home until the coronavirus is under control. For me, a public defender in Baltimore, and my colleagues, it’s not that easy.
Public defenders and most other Maryland state employees have been instructed by Gov. Larry Hogan to telework. Based on my personal situation, I have been able to comply. Understand, though—asking public defenders to work remotely is like asking an NFL team to train in a swimming pool. Our work, by its nature, necessitates contact. Contact with clients or witnesses who are both on the street and in jails. Contact with colleagues with whom we hash out trial scenarios, jointly review evidence, seek advice, and commiserate about injustices. And, most importantly, contact with courts, where we perform the main functions of our jobs in representing clients. Through remote lawyering, we can prepare most of our cases, sure. But we cannot fully advocate for clients, especially under the limited and ever-shrinking capacity in which Maryland courts are now operating. Basically, under the current regime, defendants can plead guilty, but if a client wants to profess his innocence, the case is postponed (likely without a hearing). In an environment where sitting in jail could, in itself, result in serious illness or death, a system that was already heavily weighted toward guilty pleas has only become more so when, in some cases, clients have options of going home on probation or languishing indefinitely in jail awaiting trial.
Until last week, we had the option to appear with incarcerated clients in court—with no one else present—to secure a deal that might send them home. In Baltimore, “court” normally occurs in inadequate, close quarters in an outdated, tiny room in an ancient courthouse in need of repair. Court has since shifted to a surreal, call-in basis only. We can still seek bail reviews for certain reasons, including for people vulnerable to the virus like the elderly or those with underlying illnesses.
Public defenders needed to be in courtrooms advocating to get people out until restrictions were imposed. And we continue to have to go to court to file motions in person, since the courts have no electronic option. We are pushing prosecutors to do the right thing and possibly agree to release, drop cases and recharge them later, or offer plea deals that don’t involve further incarceration—things that prosecutors could take leadership on and do without requiring defenders to file motions or have parties gather in court. We are identifying nonviolent individuals—which often has a much narrower definition for the state—and virus-vulnerable populations for release. Of course, we also have to represent newly arrested individuals on a daily basis at initial bail hearings, which are also now done by phone too. Our lawyers are selflessly stepping up amid a health emergency. One lawyer rushed to the jail just to translate effectively to a client before a bail hearing. Social distancing sometimes gets thrown out the window, but the job demands it.
Part of the arguments against release that we face from judges, prosecutors, and even the governor is that jails are “safer” for our clients than the community. Medical professionals do not agree. Essentially, the basic premise of prisons is to house individuals in small, tightly confined spaces near one another. How is that safe? It’s ironic that prosecutors and judges have been praised in the media for releasing older prisoners and dropping low-level cases, despite being the ones responsible for these often questionable incarcerations in the first place.
Meanwhile, public defenders will continue to fight for everyone’s constitutional rights even with limited courts—it’s what we do in Baltimore and across the nation. First responders, medical professionals, and even grocery store staffs are clearly the most susceptible workers to the dangers of contagion. But public defenders, unheralded backbones of the justice system, are also essential workers. We must—and will—continue to stand up for our voiceless fellow citizens in jail before those people are forgotten.