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Public Defenseless
491 | The Hidden Punishments in Pre-Trial Detention That Disproportionately Impact LGBTQ People w/Deborah Lolai
01:01:18
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- [00:00]
A
Foreign. Welcome back to Public Defenseless with Hunter Parnell as we explore the rot in the criminal justice system and what we can do about it. Hey there, everybody. Welcome back to another fantastic episode. Today I was joined by Professor Deborah Laloy. Deborah is a clinical instructor and lecturer at Harvard Law, and she is soon to be clinical professor of law at Fordham Law. And what are we talking about today? Well, folks, today's episode is in many ways related to what we discussed yesterday. On yesterday's episode with our friends at the Civil Rights Corps, we discussed the amazing victory that they were able to secure for radical changes to bring pretrial release in the state of California. And on that episode, we discussed the California Supreme Court case of Humphrey. This was supposed to be the watershed moment. This was supposed to be a time when the way pretrial release worked in California changed. But it didn't. And yesterday we discussed why that happened. I encourage you to go back and listen, if you haven't already, for the full in depth discussion. But the 30,000 foot view of it is that there was still such a prevalent culture that favored pretrial detention that no matter what the law said, judges and prosecutors, and, yeah, sometimes even defenders, they weren't fully grappling with how the law was demanding that our culture change. And today, we are in many ways talking about a similar situation. We are talking about a law review article Professor Laloy published titled out of the Closet in On Bail to discuss the ways in which bail arguments, pretrial release determinations that the very structure that we have created replicate and reinforce the biases and prejudices that LGBTQ folk face throughout their lives. And the connecting point between these two discussions is that no matter what we do to change the law, no matter how we shape and reform and alter how proceedings and processes work, our culture matters quite a bit. The culture of so many pre trial determinations is one of speed. We have to go quickly. We have to move quickly. We have a docket of 30, 40, 50, 60, 100 people that we need to get through before lunch is over so we can do the afternoon docket where we have another 30, 40, 50, 60, 100 people that we need to get through. And because the culture is so focused on speed, we lose humanity, we lose individualized concern. Judges start looking at what they're supposed to be looking for. It's just a simple checkbox, checkbox, checkbox. They move on. Public defenders only have a couple minutes to speak with these individuals and can't really dig in to the reality of this person's experience, prosecutors indifferent to it all are thinking about how can I avoid the bad headline of oh, this person was released pretrial and committed another offense. So all they're thinking about is how do I keep as many people in as possible? That culture deprives the people who are going through this system the dignity and humanity they deserve. And that is the story of today's episode, folks. How can public defenders inject the humanity? How can we slow down the machinery of pretrial incarceration so that our client, whether they are members of the LGBTQ community or otherwise, are given the individualized consideration that they need to hopefully avoid pre trial detention? As always folks, if you're liking the show, like subscribe five star rating, five star review. Feel free to reach out to me on Twitter, Instagram, via email or on Blue Sky. If you are liking what you're hearing and you would like to contribute to the ongoing cost of production for the Public Defenseless Podcast, you can go down below in the show notes to PayPal, Patreon or Stripe or where you can contribute for as little as $5 a month or as much as you feel you can afford to give. As a reminder folks, I take no sponsorship money. I do no advertising reads, this show is funded predominantly from the generous contributions of listeners like yourself and out of my own pockets. So if you are liking what you're hearing and you would like to contribute to the cost of the show, maybe show me some support while I'm studying for the bar, go below and subscribe on Patreon today. If you do so, you will gain access to the episodes a day early. You will get the video versions of the show and that means you will get to see my adorable miniature Datsun puppy, Beans, who surprisingly folks, is not all that sleepy. You see, Beans is ready to go on his morning walk. You've actually caught him pre walk, so he's a little more amped up, a little more engaged in, a little more wondering when we're going to be done recording things. So folks, if you want to show support for Beans and the trials and tribulations he engages with as he sits here to be a prop on his father's show, I encourage you to go below and subscribe on Patreon today. Now, without anything more from me, let's get to the episode. Debra, welcome to the Public Defenseless podcast. How are you doing today?
- [05:09]
B
Thank you so much Hunter. Thanks for having me. I'm doing well. How are you?
- [05:13]
A
Bar prep starts tomorrow, so I'm doing as good as one can on the eve of the end of your life for a couple months. So excited to talk with you. I think this is a really important topic for multiple reasons, but every single time we get, let's say, a major victory like we just got out of California on pre trial confinement, I think we always need to be mindful of the ways that pretrial confinement is used, how it is used to target certain individuals, and how we can improve our practices to represent the unique, the various groups of people that we represent. Because not all approaches are going to work for absolutely everybody. So let's get rolling right into it. Before we get into this article, before we get into some of your work that you have doing at Harvard and soon to be Fordham, let's talk a little bit about you. Tell us who you are, why did you want to do public defense? And then I know from your experience as a public defender that shaped a lot of the work you've done in academia. So tell us about that transition as well.
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B
Sure. So I did not go into law school thinking I was going to be a public defender. I went into law school thinking I was going to do LGBTQ impact litigation. And I did a. My. My 1L internship was at a big impact litigation organization. And I enjoyed it very much and found it meaningful, but it didn't fulfill that need that I felt, that I wanted, that I went to law school for. Right. It didn't fulfill that feeling of wanting to make a difference that I could feel, right, A tangible difference in people's lives. And my criminal law professor, Richard Klein, who was phenomenal and continued to be a mentor for me today, convinced me to try out a public defense internship. And so my 2L summer, I interned at Federal Defenders of New York in the Eastern District of New York. And I didn't turn back after that. I knew immediately that that was what I was meant to do. So fast forward to law school graduation. I ended up at the Bronx Defenders as my first job straight out of law school as a line staff attorney in their criminal defense practice. And it was fantastic. Everything I imagined it would be. But coming into that work with an LGBTQ lens allowed me to see a lot that I think others were either not seeing or ignoring or not addressing adequately. And what I'm referring to is the ways in which queer and trans people are forced to navigate these systems uniquely right and experiencing different kinds of harms than their straight and cisgender counterparts. And that eventually led me to begin a project at the Bronx Defenders called the LGBTQ Defense Project, where I ended up representing the majority of our queer and trans clients in criminal cases and related legal matters, which was a dream job, frankly. It felt like exactly what I needed to be doing. And at some point, I started to feel extremely burnt out. And this was around the 10 year mark of being a public defender. And as I was thinking about what I wanted to do next, the only thing that I could think of that I thought would bring me as much meaning and joy as my former job did was teaching. I had already been adjuncting for several years and started to think about how I can do this full time. How can I work with students full time? How can I bring in my experience in teaching students and share my knowledge through scholarship as well? And that's how I ended up at Harvard. And now I'm teaching at Harvard Law School's LGBTQ Advocacy Clinic. And as of the summer, I will be launching a new clinic at Fordham Law School called the LGBTQ Litigation.
- [09:31]
A
Fantastic. Well, I do want to talk to you about. We're going to talk, you know, specifics about bail and the way the system treats people, but I think your description of what public defenders were missing, either intentionally or unintentionally, begs the question of what were the things you were seeing? Because I know, obviously, if that's happening in the Bronx Defenders unit, one of the most. One of the best holistic offices that seems to have a subcategory for just about every type of law you could imagine. If they're missing things, well, offices around the country are going to be missing things, too. So tell us, what were people missing, either intentionally or unintentionally?
- [10:09]
B
Yes. And just to be clear, it wasn't sort of the actions or inactions of my colleagues exclusively that I was referring to. I was referring to what I was seeing in the courthouse every day. Right. What I was hearing from my clients, what I was hearing from prosecutors, the way that I was witnessing judges interact with folks in the courtroom, the way I was witnessing court officers interact with folks in the courtroom. So it wasn't exclusively about my colleagues, but some of you know, I'll give you a few examples. Right. Almost every queer and trans person I met was struggling with so many different areas in their lives that are, I think, to most people would be considered not related to their criminal case, but it was so obviously connected to. To what brought them into the criminal legal system. From my perspective, Right. Again, coming into this work, having that prior experience you would walk into, we had a. In a lot of. Now courthouses and jurisdictions are doing this now they have special court parts for survivors of human trafficking. And a lot of the prostitution related cases would be directed to that court part, which met once a week. You'd walk into that court part on the day of the week that it was meeting, and you'd see the majority of people waiting for their cases to be called were black and brown trans women. Right. And so you have to wonder what's happening here. Right. I would hear defense attorneys, I would see them watch them misgender their clients on the record after being able to hear their clients asking them to use different names or pronouns. Right. I would hear prosecutors on the record weaponizing trans people's identities in order to ask for bail to be set or ask for longer sentences. So those are the kinds of things that, you know, or interactions that I was witnessing that really had me begin thinking about what are the ways in which we can create change in the system in a broader way, both for individual LGBTQ folks who are going through the system, but also, like, what are the systematic things that we are seeing? And a lot of that work that I did through the project was policy work and advocacy work when we started to notice patterns that we needed to address.
- [13:09]
A
And it really shouldn't surprise us when you describe it like that, because we know that this system was not designed to actually give people individual considerations, whether whoever the party is, the public defender, the prosecutor, the judge, the. Even the court staff, because there is such a volume of cases, people often are just treated in an assembly line, and none of the actors take the time to actually look at the person in front of them and treat them like an individual. They are just case number, so on and so forth, and then, all right, next case number, next case number. Especially when we're doing bail, which is often the largest volume docket that we're trying to clear out the quickest. That is an area of law where, you know, in theory, if you look at the letter of the law, we should be doing the most individualized concern, but we're doing often the least in those situations. And that, you know, if that's the person's first interaction with the legal system, with that judge, with the prosecutor, with the public defender, that's a terrible first impression. Will they come back? And I know we'll talk about failure to appear here in a second, but tell us why you wanted to focus on bail specifically.
- [14:20]
B
You know, as many scholars do. I maintain a list of ideas for future articles that I would like to write. And all of those ideas come directly from my practice and Experience as a public defender and practitioner. As I was thinking about the first article I wanted to write, I felt compelled to do this one initially because of the impact of being detained pretrial. Right. And how much that contributes to the outcome of a person's case. And so all of my research and scholarship focuses on the intersection of the criminal legal system and LGBTQ communities. But this particular issue is so important because, as you know, and I'm sure many of your listeners know, whether somebody is detained pretrial is the number one determinant of the outcome of their criminal. Criminal case. It completely changes the trajectory of a criminal case. Right. Because if. Because of our coercive plea bargaining system. Right. And because of the horrors that people experience while they are incarcerated. And that is compounded by the fact that queer and trans people, especially trans people. And I want to highlight that this isn't. While there is a lot of attention on the experiences of incarcerated trans people right now, this is not a new issue, and it is not an issue that has been Created by Trump 2.0. Right. This has been an issue that has been a problem throughout history. And trans people face extreme abuse, harassment, discrimination, and mistreatment during their incarceration. There are various unique issues that they have to navigate and deal with. One of those issues happens to be sexual abuse. There's an extremely high percentage of trans people who are incarcerated who experience sexual abuse. And I mention that because it's relevant to sort of the trajectory of a case. Right. When people are incarcerated pretrial, they are much more likely to plead guilty to crimes that they may not be guilty of in order to get out of jail faster. Right. And so I want folks to really understand what that means for queer and trans people. It means that oftentimes. And we'll get into this, I'm sure, later, queer and trans people's identities and experiences of discrimination lead them into the criminal legal system. Right. Result in them being criminalized. And then once they're in the criminal legal system, my entire paper is about the ways in which our bail statutes across this country disproportionately impact them. Impact queer and trans people, and result in them being detained pretrial. Right. So they end up being more likely to be detained pretrial, and then once they're detained pretrial, they're even more likely than their CIS and straight counterparts to plead guilty to crimes they are not guilty of because of the horrific treatment they face while incarcerated.
- [18:05]
A
Yeah. And there's a lot of people, when they hear, I think, advocates like us point out the fact that, like, hey, why would somebody ever plead guilty to a thing they didn't do? I wouldn't plead guilty to a thing that I didn't do. They don't understand that. People understand what will happen to them when they go into jail in prison. And they understand that, you know, if at that first bail hearing, I meet a public defender who gives me two minutes and then I don't talk to him again, what faith do I have that this person is going to be working hard on my case to focus on me and get me out? It becomes a perfectly rational decision to say, hey, I got arrested. I did an overnight, I'm doing my first appearance. The plea offer is credit time served. Close out. Yeah, it just makes perfect sense to just get this over with, because I might be sitting in custody for even longer than I could be incarcerated if I'm found guilty. Like, I should just do this. Especially in the context of New York, where people are being held pretrial on Rikers Island. You know, I think people need to grapple with the conditions they are sending to and how that can make a perfectly rational actor who knows they are not guilty plead guilty. Nonetheless. Let's talk about some of the specifics and how a bail determination works for people who have never done a bail determination. It can often feel in a courtroom that is going very fast, like everybody has a checklist and they're just going, checkbox one, checkbox two, checkbox three. Okay, we have addressed all the checklists, and now I'm going to put this into a little formula that I have here. The formula is going to spit out a number, and based on that number, that's the decision I'm going to make. It feels very odd relative to how some other legal proceedings will do. It's so much more formulaic and wrote. Let's start off with one that I think is really easy not to consider. But see, that stood out to me. Arguably the most amongst the list you put out to. And that's familiar. Familial relationships and community ties. These two things are not the same. Explain to us how they are not the same and how when we are not considering the actual lives of the lives of many LGBTQ folk, this category can be especially problematic.
- [20:24]
B
So familial ties are referring to, you know, the relationships you have with your family members. Right? Relationships you have that support you, provide you with guidance, show up for you in various contexts. Right. You know, the. Your family members who are there for you when you need help. I Think many of us in society can, you know, understand what that means. And the rationale of including this factor and the determination is that. But if you have family members in your life who are supporting you, who are providing you with stability and guidance. Right. Those are people who can serve as supporters for you as you navigate this case and help you make sure that you come to your court dates. Right. It's also important in this context because I think the understanding is that if you have family members who you have close bonds with who are local, you're less likely to leave them to sort of evade prosecution because you have family ties that are important to you. Community ties are a little different, though. They are related to family ties. Community ties refers to what are the relationships and activities you do in your community that. That connect you to the community you're in. Right. And there are some similar rationales here, right? If you have community members who are supporting you, if you have responsibilities to the community that you're unlikely to abandon, those are reasons for you to remain where you are and come to court when you need to come to court. The relevance to LGBTQ people here is that a huge percentage of LGBTQ youth have very strained relationships with their families of origin. And this is a direct result of them not being the family members, not being supportive of their sexual orientation or gender identity. And these. These sort of toxic relationships will often result in either the family members, usually parents or other guardians, kicking out the queer trans young person of their home. Right. Because of the rejection of who they are, or making the conditions in the home so hostile and toxic and dangerous that it forces the young person to leave their home. Right. Voluntarily, or some might say that's not voluntary. And so the majority of youth I represented, and I'm thinking about the youth specifically, who were 15, 16, 17 years old before the raise the age law passed in New York, who were queer or trans, didn't have parents who we can call into the courtroom to support them during the bail hearing. So that was what made them. What made their experience stand out from the experiences of the straight cisgender youth who we were representing. There was usually a parent or guardian who was willing to drop everything and come to court when they got the phone call from us that their child was arrested, that wasn't the case. And I also want to point out the power of having family members in the courtroom when you're being arraigned. I see you nodding your head. And so, you know, when you're an attorney making a bail argument, right. Arguing for the release of your client. It's extremely powerful to be able to say, you know, your honor, my client has so much support at home. In fact, her parents are sitting right here in the courtroom. I've spoken to them. They're willing ensure that she comes back to court on every single court date. Here are the things they're going to do to ensure she comes back to court. That's powerful and persuasive. When you don't have the ability to say something like that to a judge during a bail hearing, it's a problem. Right. And I will say the judges who were arraigning young people in New York often would tell us, I'm not releasing this person until a guardian is in this courtroom that I can release them to. What do we do then? Those are the considerations that I'm hoping readers of my article can really understand when determining the impact of this particular bail factor on queer and trans people.
- [25:31]
A
Yeah. And there's a couple points I want to build on there. Number one, the other thing that is missing here is that familial relations, what does that mean? Many people, not just LGBTQ folks, but many people in general have non traditional familial ties. I know. I just compare, like a really basic comparison. My wife is British. I have a very large Chicano family. And what she defines as a cousin and what I define as a cousin are two very different things. Just because of how we grew up and what we consider and who we consider family and how we relate to people, we have a lot of people who might as well be family, who are very much not legally, technically, my family, who would fall into that category. And depending upon the judge in front of you, their understanding of who might count as a family member that is worthy of consideration also has to come into play here, because if you are having those strange familial relationships, while unfortunately, many, many people aren't able to. To develop the kind of family ties they want, a lot of people do. They create what now becomes their family, but might not fit the legal definition of it and just not being able. Right. The real. You know, there's a bunch of stuff down here. We're going to talk about just getting rid of a lot of pretrial detention, which I think is the actual answer. But knowing that there is always going to be some people involved in this system at some point in time, unless abolitionists 100% get their way, which I don't think is going to happen anytime soon, Judges just need to take a beat. What we're Asking for is to just take a second. Your docket clearing it is not that important. Getting to lunch 30 minutes sooner is not that important. Just take a second to actually hear what people are saying to you and listen to you and actually think, what is the purpose of familial relationship and community ties? Oh, it's to show that if this person gets out and maybe they are struggling with housing or something else, there's somebody they can rely on. So I think we can get caught up oftentimes in these boxes and say, oh, familial relationships have to look like this and community ties have to look like this. I know in the community ties section, oftentimes it's religious organizations. Those are the ones they're looking for. Which I think this should go without saying, might be a bit of a challenge for people in LGBTQ communities to find religious organizations that are okay with them. So both of these boxes, we just need to get to the root of why do these boxes exist? What is it that they are looking for? It's not that they are looking for familial relations for the sake of familial relations. It's not that they are looking for community ties just for the sake of it. It's because they're showing that, oh, this person has people that they could rely on if they needed something that could help them. So I would love to see these two things just be like, hey, do you have people who are around to help you? And that now all of a sudden broadens it. That all of a sudden allows us to be more flexible than these more rigid definitions. I think the next three really go together. So residence, employment. I'm going to jump ahead to criminal record because I think that. To the story that you started with, especially when it comes to people giving a new legal name, trans people, especially non binary people, especially who either go by formal or informal name name changes, they run into a lot of problems with police officers. And I know you talk about a couple stories here in your article. I want you to tell me a little bit about specifically how these criminal record issues can manifest differently or in unique ways for LGBTQ folk as we are going through the bail process.
- [29:04]
B
So, so the, the issue with names and, and gendering by law enforcement specifically happens when that initial interaction occurs right between an officer and a person that they're stopping. What I have seen over and over again is officers asking for trans people's names, asking for their IDs. And in an effort to be honest or to share all the names that they have or have had. People will often share multiple names or will just instinctually respond with the name that they currently use, regardless of whether they have legally changed their name or not. Oftentimes, officers use in New York, I saw it with the section of the penal law for false personation. But every jurisdiction has some kind of section of their penal code that's related to this. Right. And they will arrest the trans person and charge them with false personation. Now, with these kinds of charges, there needs to be an intent to evade law enforcement. Right. And that's not happening in these situations. What is happening is the person who's being questioned by the officer is just answering their question of what is your name? And this was actually, as I was doing my research in Layleen extravaganza Kubila Polanco's case for this piece, this was one of the most devastating things that I found. Layleen sort of became one of the faces of bail reform in New York because she died at Rikers island when she was incarcerated on $500 bail. There were tons and tons of media accounts. There were reports by official agencies, the Bronx District Attorney's office, the Board of Corrections, the Department of Corrections. So many different agencies investigated and published reports on what happened to her. Not one of those media accounts or official reports mentioned the fact that she was arrested in and charged with and convicted of false personation twice. And she did. In one of those cases, I think she. She was sentenced to 60 days in. In jail. Right. For literally answering the question, what is your name? So. So that's. That's how this manifests oftentimes with law enforcement. I think the issue with regard to names and pronouns is related to, but also distinct from the criminal record factor. The criminal record factor is thinking about why or not why, but the reality that most pretrial determination decision makers are considering whether somebody has a prior criminal record in determining whether bail will be set or whether they will be detained pretrial. Why this is important in this context is that queer and trans people are much more likely to have a criminal record than their CIS and straight counterparts. You know, a great book that very much informed the way that I look at this entire system, which I want to recommend is Queer Injustice by Andrea Richie, Joey Mogul, and Kay Whitlock. I think the full title is Queer the Criminalization of LGBTQ People. And I'm recommending this book because they talk about the history of how LGBTQ people have been criminalized for many, many years. Right. I think we often forget that it was only in 2003 that Lawrence v. Texas was decided. Right. What that means is that up until 2003, it was legal for states to charge, convict, and incarcerate people for having same sex sexual relations. Right? And there, there's so many other examples of the ways in which LGBTQ identity was literally and continues to be increasingly literally criminalized in sections of our penal codes throughout the country. And so that's one way that this is relevant, right, that queer and trans people are actually literally criminalized because of who they are, and they continue to be. There are currently four states, just as an example, which have made it criminal, which have made it a criminal activity to use a public restroom or a private restroom that's public facing, that is not aligned with your sex assigned at birth. So I want folks to just like think about that for a second. Right? There are things that we do that actually make existing as a queer or trans person, especially a trans person today, a crime. And then there are the more subtle ways in which queer and trans people are just more likely to have a criminal record. Right. This is very much related to this idea that is the foundation of my article, really. It's the discrimination to incarceration pipeline that was coined by lawyer and scholar Chinieri from the center for Constitutional Rights. What we're talking about here is the ways in which the experiences of discrimination are a pipeline into the criminal legal system. We already talked about the issue with family rejection. That's a great example of this. When kids are rejected by their families, when they're thrown out of their homes and they're homeless, they're on the streets, they may be forced to engage in criminalized activities, they're just much more likely to interact with law enforcement and end up being arrested out of a means of surviving. And once they're in the system, because of the things that I mentioned earlier, they're much more likely to plead guilty, then they're going to have a criminal record. And the next time they come through, which they will, they will now have a criminal record and a judge will be much more likely to detain them pretrial, sort of perpetuating the cycle of criminalization, incarceration.
- [36:40]
A
And to do the interplay between the two, you know, somebody again might ask, why would somebody. It seems so easy to be able to go to court and prove what your name is and isn't. Why wouldn't you just fight that? Well, for the reasons we talked about right at the beginning of this. When you know that what you are going to experience, you Just take the loss. And the people should be taking one step back. We talked about this on our episode with Civil Rights Corps on Bailey. But your freedom hinges on some cop who probably doesn't know the law as well as he thinks he does, going, is it, is it probable that this person committed a crime? Sure. And then you're, you can be indefinitely held in a lot of places because you're not going to get bail, you're not going to be released pretrial, you're going to be incarcerated. And then all of a sudden, it starts to make a lot of, how long? Listeners out there, if you know somebody like this, always ask that person, how long do you think you can be in jail before you quit? That's the question that people need to ask and grapple with, is how long until you would quit? How, how, when would, when would you lose your job, when would you lose your house, when would you lose your kids, when would you lose your relationship, your car, all those things? How long do you plan on losing all of those things, then have to rebuild it all back. And trust me, even if you're found not guilty, the government's not compensating you for that time. So how long? And until people have to grapple with that question, they're always going to be asking, like, well, well, why wouldn't you just fight this or that? And then in some places, obviously, you know, we've seen in Kansas, we've seen it around the country, they are just not allowing people to do these sorts of name changes. So what then do those people do? Just move? Like, there are people not thinking through the implications of this, through the rest of this, you know, we have residence, employment, substance use, mental health, nature and current offense. Like a lot of those play together, right? We know people who are unemployed very often don't have places to live. We know that mental health can contribute to the lack of employment, lack of residents. But the one I want to focus on specifically, because I think it will parlay nicely into a broader conversation about PDs. And this representation outside of just bail is failure to appear. Because, you know, there, there are places around the country that are trying to change how they do pretrial detention. And there are a lot of discussions about should we focus on future dangerousness or danger to community and society. Like that is, I think, a debate in a lot of places. So a lot of these things might not, you know, be on here, but failure to appear, that I don't think is ever not going to be a part of pretrial determination. And even for me, as somebody who despises pretrial deter, like detention broadly, I even go like, yeah, failure to appear does seem like a fair thing to ask about. So talk to us about how this impacts the LGBT community explicitly and how we could take into consideration those factors to make it that when we do consider failure to appears, it is in a more holistic, wholesome manner that isn't as black and white binary. Oh, once you have three, we're going to have to detain you. That is what we usually see.
- [39:54]
B
Yeah, that's a great question, Hunter. And it's one that I struggled with a lot as I was writing this piece. Even someone like me, a career public defender, if I was looking at a rap sheet of somebody who had 50 failures to appear, I might also doubt whether this person's going to come back to court. Now, the question that I came back to time and time again is what if all of these factors do actually make somebody less likely to come back to court, but the reason that they're. Their circumstances with regard to this specific factor are as they are, are due to the discrimination they faced. Right. Is that something we should be thinking about? And I argue that it is. We can't ignore the data that has come from bail funds, which shows people who have support when they are bailed out by these bail funds are much more likely to come back to court. Right. And are much more likely to fight and beat their cases. And the reason that that's relevant is because I'm not saying we should just blindly think about the impact of pretrial detention on this specific population. I'm trying to have people think about what are the things that this community needs to be supported enough to be able to return to court if they are released. When we're talking about failures to appear, I think. I think that it's important for us to recognize the treatment that LGBTQ people face in court when they do come back to court. And I'm not just talking about prosecutors, law enforcement, court officers, and judges. I'm talking about their defense counsel, too. I can't tell you how many times I received phone calls from service providers in mental health, substance use, social services world about a trans person who had a pending criminal case, whose lawyer was not affirming of their identity, who was misgendering them on the record, who did not believe, you know, the story that they were telling them about what actually happened. Right. And you know that we're coming into this with an assumption that our clients were lying And I think that is connected to sort of this dangerousness piece. And so if you. And in the article, I talk about examples of this happening to Layleen, right. There were multiple transcripts I read from her various court appearances where her own lawyer was misgendering her. And I knew one of those lawyers. He's a fantastic lawyer, and I've actually co counseled cases with him where we represented trans people together. And so I don't know the circumstances of each court appearance, you know, and interaction. But I do know that when Layleen was standing in that courtroom with her hands behind her back, handcuffed, being misgendered dozens of times by her own criminal defense attorney, and every time she heard he, he, he, that probably felt like a gut punch and like there was nothing she could do about it. I do know that the impact of that justifies not wanting to come back to court. Right. So we need to think about what are the things we have to be doing as defense attorneys in the court system. The judges, all of us, have a responsibility to create a culture of respect and make sure we are mitigating the harm that our LGBTQ clients, litigants, are experiencing in the court system if we're truly invested and care about people coming back to court.
- [44:41]
A
I can understand how a person, if you're going very quickly and you're looking at just records you have in front of you and you're not thinking and you're not engaging with the person in front of you, how easy it is to fall into this. And that goes back to the thing I keep saying through this. It. These can become so much more treacherous, treacherous, treacherous. This can be some. So much more difficult as an attorney when you don't have time. These mistakes, these. This attention to detail happens when we get in a rush. And I'm sure that this individual. And this has happened to me, right? I have had clients where their name is here, their. What pronouns want me to use are here. The court has a document that says something different. The prosecution has a document, and all three of us are looking at. It's like. And if none of you have the time to take a second and just ask the question, then you're going to. You're going to make these mistakes, and it's going to happen either intentionally or unintentionally. So this is where, you know, it isn't said explicitly, but a byproduct of our workload, and the workload issues that we have leads us to making these mistakes more frequently. So this is all downstream of those bigger systemic problems when it comes to failure to appear. There was a part that you really made that was interesting here that I would like to kind of, to springboard this into a broader conversation about changing the system in a way. You talked about the drivers of why people fail to appear and that they're not all the same, right? We have people who are bajillionaires who have the resources to be an actual flight risk. This person is going to leave the city, the country, and not show up ever again. That is a category of person. And then there is another category of person, the person who lives at the homeless shelter down the street. But the reason they can't come to court again is because they have two choices. Wait in line for that shelter, bed for the night, or come to court and sleep outside, sleep inside, go to court, they make again, a rational decision. Some people just can't afford to take work off anymore. And we ask and beg and plead, can we waive appearance for non substantive hearings? Can we? But judges, because this person has already been labeled as a flight risk for this exact reason, say, oh no, I need to see him, I need to see him, I need to keep seeing him. I need to keep, keep seeing him, come to court. And then that person makes a rational decision. Well, I can't come to court today because I gotta work. People who need childcare, I know that in New York we are trying to make more and more childcare free, but in the rest of the country, outside of New Mexico, that's not on the table for a lot of people. So all of these factors then create a category of people who might be a risk of failure to appear, but not because they don't want to participate, not because they're leaving the city in which they are being charged in, but because they have a life to live and to keep and maintain. They're living on the margins, they are living on the edges. And missing one more appointment is going to push them over. So, you know, whether it's failure to appear or any of these other broader, you know, more systemic reforms that you offer at the end of the, of the article, talk to us about ways in which we can either do what I think would be more technical tweaking, like changing how we consider failure to appear or changing what we think about with criminal records or some of the bigger, broader ones that you propose, it's
- [48:07]
B
such a great point. And I can't remember the name of the professor's work who I cited to which, when I was talking about this Specifically, but it's important to distinguish, and this is what this scholar did, distinguish between those who are not showing up because they're trying to evade prosecution and those who are not showing up without that intention. And so I really appreciate that distinction. I think so much of what we've talked about today is about the dehumanization of people who are going through the system. And the response to that, I think, needs to be humanizing our clients. And one way we can do that is by effectively telling their stories. And while I don't explicitly call it that throughout my piece, that is so much of what is underlying my recommendations. Right. So a couple of examples that I'll share about the recommendations is one, including exceptions for discrimination in bail statutes. What I mean by that is, if we're going to keep these factors in our statutes as factors that decision makers can consider in making these determinations, we should also include an exception where a decision maker needs to consider whether the circumstances of the individual before them that would sort of count against them in this decision are a result of discrimination. So, for example, if the person in front of a judge is unemployed, right. And the reason they're unemployed is because they are trans and they interview after interview after interview are being, you know, asked questions about their gender identity, that is. That is inappropriate. Right. And didn't get the job, clearly because of employment discrimination, regardless of the fact that that's, you know, illegal. Now, if a person can show that they're unemployed because of that, that should be a reason that a judge does not make a negative inference against them. Right. That's one example. Now, how do we do that? Right. Any public defender knows that a huge part of our job is humanizing our clients and telling their stories. Right. I would argue that's the majority of what we do. Right. We are professional storytellers, and there are steps that one needs to take in order to be adequately tell that story and make that argument that I think people aren't thinking about. Right. Or don't know how to do. And part of that starts when you're interviewing the client. Right. There are so many people who are afraid to, or so many attorneys who may be nervous about asking such questions because they don't want to offend the client. Right. They might feel like these questions are too intimate. I'm making some assumptions about this person based on who they are. Right. But I. I think we need to be asking those questions because we need to be able to tell the fuller story of who our clients are. Another example is requiring judges if they are going to make these bail determinations to hold our clients in requiring them to articulate the reasons. Right. In detail of why they are incarcerating this person pretrial. And the reason for that is very much related to what you were saying earlier. Right. Which is this process happens so quickly. It's so mechanical and we rarely pause and reflect on what we are doing. And if a judge is forced to pause, reflect on why they are setting bail in this case or remanding this person in this case, it just creates a small moment and opportunity for reflection that I think can go a long way. These are just a few examples. I encourage listeners who are interested in some of the other reforms that I'm recommending to read the recommendation section of the article. I break them down into transformative recommendations and essential baseline recommendations. The transformative recommendations are ones that I think really are what is necessary. Right. I do think we need to end pretrial detention point blank. The entire system of detaining people pretrial is problematic for many reasons. Forget about all of these factors. System itself needs to be done with. And then I know those are big asks. Right. And I don't think, while I do think abolishing the entire criminal legal system is a long way ahead, I actually don't think we're that far off from ending pretrial detention. I think there's enough energy and movement around this issue for us to be able to do this in our lifetimes.
- [54:17]
A
And I think, you know, what's unfortunately, the world I see when it comes to pre trial detention is we see, you know, we have done an episode, like I said, with the friends at Civil Rights Corps about their big victory in California. We have seen the changes in Illinois, New Jersey and New York. There are going to be some states that are way ahead of this. And then there are going to be some states who it's going to look like the 1970s, 1980s where nobody is getting released and the jail costs are. And we know exactly how this is going to play out. Right. It's the same story of we can look at, you know, LA and its carceral approach and the way that their health outcomes are worse in places that don't have those carceral approaches. And unfortunately, even as some states I think, do get closer to the world you're talking about, we are going to have the ones that don't because the federal Supreme Court is not going to be anywhere close to helping us in this regard. So it's going to be vital that we Continue to get local. Right. What is happening in this court? Because even with bail, what is happening from courtroom to courtroom? What is happening from judge to judge? This. We have to stay on top of the ball, no matter how much progress we make, until the progress is universal, because there will be some places that will be draconian on this. The last question I have for you is to kind of take a step out, away from Bailey, and just, you know, a lot of this has been about humanization, I think, which is a byproduct of being able to control our workloads in a more meaningful. More meaningful way. What advice would you have to the, you know, the public defender who is working in their. In their jurisdiction when they do have LGBTQ people? Maybe there isn't a large population and they are not used to working with this cohort of people. What are things that you have seen in the representation that you have done, both on the criminal and civil side, that you think would be good advice for people to follow to make sure that they are giving that person the type of individualized care that they need?
- [56:13]
B
Piece of advice that I would give public defenders out there is if you are unsure about what to do, ask. Right? Ask the experts. And by experts, I mean your clients and those like myself, who have been working on this issue. I am so grateful to the public defenders and defense attorneys, private defense counsel, who reach out to me and say, I'm representing a trans person. This is what happened. I've never represented a trans person before. I have no idea what I'm doing. I want to make sure that I do this right. Can you help me think through the different issues in this case and the things that I can be doing to make sure that I'm adequately representing this client? I think that's what we need to be doing. We need to be okay with the fact that we don't know the right way to address every single case. We're not all experts on everything. The other thing I will say is to try to let go of assumptions about. About our clients. And, you know, I do lots of trainings for public defenders throughout the country on this issue, and I always tell them not to assume your client wants you to deal with something in a certain way because you've had a training or because you've had an experience with another client where they wanted you to deal with it in one specific way. Right. Not all trans people, for example, I think this is a surprise to a lot of folks, want you to use their correct name and pronouns in open court. Right. Some trans people will say, I'd rather you not make an issue of my name and pronouns and just get on with the case. I don't want my identity to become a spectacle in open court and we need to respect that. But what's required of us as their attorneys is to think about those issues, anticipate those issues before we get on the record and have those conversations with each client before every court date about how they would feel most affirmed and most respected, how we can, how we can represent them, and what actions we can take to make them feel that way. Right. So that's the advice I would give. I'll make a quick plug for a forthcoming publication out of our clinic. It's called the Transgender Decarceration Guide. And it is a toolkit for defense attorneys and post conviction attorneys representing trans people with a lot of helpful tips, practice guides, arguments they can use to represent trans clients and get them either prevent them from, from going in or get them out of jails and prisons across the country. That will be available on our clinic website at the end of June.
- [59:30]
A
Fantastic. Well, hopefully once I am done with the bar, that is something that we can explore more on this show. I'm sure it would be a great tool for people to know about, to hear about, to have access to. So, Deborah, thank you so much for joining me today. Where can people contact you, learn more, read, write, where would you like to direct people to if they have any questions?
- [59:48]
B
Thank you. You can always reach out to me by email. Until the end of June, I will be at Harvard Law School, so my email address, my Harvard email address is the best way to reach me. And then as of July 1, I will be at Fordham Law School and that information will be available on their website.
- [60:08]
A
Fantastic. Well, thank you so much for joining me today and I'm sure I'll be hearing from you soon. So thank you very much and we'll talk later.
- [60:14]
B
Thank you. Thank you, Hunter.
- [60:15]
A
Thanks again everybody for tuning in today. If you like today's episode and you're liking the show, please remember to like, subscribe, leave a rating, leave a review, and share with anyone who you might think is interested in learning more about our rotten criminal legal system. If you would like to contact me with any questions, concerns, feedback or potential guest recommendations, you can go to publicdefenselessmail.com and shoot me an email. You can also find more about the show at publicdefenseless.com or on Instagram at Public Defenseless Podcast or on Twitter Defenseless Pod. As always, folks, thank you again for your support. If you have the means to do so, it would be great if you could go down to the Show Notes, go to Patreon and subscribe for as little as $5 a month where you can get access to the show a day early and the video versions of the show. Again, thank you all so much for the support and hope to see you soon.