Decarceral Counseling

“Why are you saying I’m likely to get such high bail?”

My client’s question cut right to the contradiction at the heart of counseling in a carceral system. New York had recently passed bail reform, strengthening the presumption of release that had always been engrained in New York’s law. But the reality of that reform was far from its intent, or even how it was portrayed in the media. His question was incisive. In many ways he was a model for release, living in New York City his whole life, working a stable job that required state licensing, and having a close-knit family and community who rallied to support him. But he faced serious charges. And despite what the news was saying, judges were setting monetary bail or detaining without bail a majority of people facing violent charges, both pre- and post-reform.

My job as a public defender was to inform my client about reality so he could make decisions about his case. But exactly how to do so was something I grappled with in my twelve years as a defender, and even more so as a supervisor and training director meant to guide other attorneys in that choice.

I could give the straightforward explanation of the bail factors—and how even though my client had remarkable community ties and was eligible for release, supervision, or an electronic ankle monitor, he faced an uphill battle because of one factor: the sentence a judge may impose upon his conviction. My client was facing a severe sentence because of immense discretion given to prosecutors in charging, even though in his case that level of charging was unlikely to make it past a grand jury, let alone a trial. Ending here might make sense; there is a reasonable view that my client has little to gain by learning more about the inner workings of bail since he could not affect the broader issue, and because the reason the judge chose bail would not alter his decision-making.

Nevertheless, I could go further: Explain that bail laws were often intentionally ignored by judges, and that standards like “risk of flight” were pretenses used to justify what really motivated judges—most commonly a fear of ending up in the New York Post and the ensuing career ramifications. I could go even further than that and talk about how these laws were written to give prosecutors’ broad discretion rather than increase the chances of bail—because our system was designed to force people to plead guilty, and there was no surer way to coerce someone than the possibility of a hefty sentence and spending time in jail pretrial.

Rather than just going deeper in my explanation, I could also go broader and look beyond the legal sphere. Even a legal issue like this could benefit from an expansive dialogue with my client, beyond simply learning about my client’s own life for its relevance to bail. That dialogue could also be expanded to learning about tactics and sources of knowledge that a criminal court might discount. It was a client who first taught me about certain community-based options such as violence interruption, or about police practices like those used by NYPD’s infamous anti-crime unit. I took that information to other clients, suggesting that they could join community board meetings, that they might be eligible for bail funds, and that they might be interested in a campaign being organized around the exact type of charges they were currently facing. But I did so sporadically, and I did not incorporate what other clients taught me about plea strikes and other collectivist tactics as much as I would’ve liked.

I came up in an office that emphasized client-centered representation and taking the lead from clients. Still, like many public defenders, I struggled with the line and became squeamish when talk of extralegal tactics and knowledge entered the conversation. If a client was bringing up a course of collectivist action, then that was an easier choice. But what was my responsibility in the other situations?

I worried about setting up my client to make a suboptimal decision based on my own views of the system. I thought even raising these issues might be unfair to a client who was already grappling with some of the most consequential decisions in their lives, especially since they were engaging in that complicated calculus in a forum stacked against them. For years I taught attorneys in my office that we are not movement lawyers during our day job—when we are in our role as counselors—and need to be careful not to impose our views and beliefs on clients, even when they are in the interest of decarceration.

My characterization, though it felt safe, also left me uneasy. It ignored the reality of counseling, which encompasses a real contradiction: If defenders do nothing as counselors other than explain the consequences of the law, we are the ones imposing the injustice against our clients even if we disagree with it. Under the justification of “managing client expectation,” we often are the ones who cut off options for clients, instilling a fear of due process in them because of our own experiences of what can happen to clients when they insist on their rights. We tell our clients that the law on vehicle stops is bad and that we are unlikely to prevail on motions even with unfair police tactics. We warn our clients that they could get more jail time if they insist on trying to proceed with a challenge anyway. We do so for good reason since that is the reality of the situation. But if we do this and nothing more, we are the ones limiting our clients’ options—even if it is for very good reasons. If we only ever push back on our clients when they ask why the system is the way it is, we are then part of the reason it is that way.

This tension made me uneasy because it implicated the core of my role and challenged my effectiveness, as well as my reason for wanting to become a public defender in the first place. I went to law school and steeped myself in legal reasoning and legal epistemic logic, hoping to use that knowledge and tactics to benefit clients. But then I went into practice and saw firsthand the absurdity of most legal thinking.

For example, New York has a strong statute around favorable dispositions. When a case is dismissed, it was “deemed a nullity,” sealed from the records, and a client is, legally speaking, “restored” to the status they had occupied—as though the arrest and prosecution never happened. As a new public defender, I relished being able to inform clients of the power of a dismissal. Of course, this legal fiction ignores the reality of the devastating effects of arrest even after a favorable case outcome. For example, I represented a client for a marijuana possession case that was dismissed, but in the meantime her child had been removed from her care, eventually permanently, due to an investigation that stemmed from that arrest. I had another client charged with possessing a knife that he had purchased from a sports store but that the police mistakenly thought was illegal. The case was dismissed but his arrest caused him to temporarily be placed in custody, which triggered immigration consequences. He was removed from the country, separated from his wife and four-year-old child. Clearly those dismissals had not restored my clients to the status they had occupied before their arrest.

Real change eventually occurred on these issues largely because these and other clients faced such gross injustices between of how the law spoke and acted. Movements raised these stories up to push legislators, courts, and prosecutors to act. The immigration detainer law changed, the law on gravity knives was fixed, and a reckoning with the family police state is underway.

Could I play a role in those bigger changes, besides just listening and explaining to clients that the disconnect between the law and reality existed? Were my only options to either leave the system or else accept my limited power and complicity in it?

Thankfully, defenders, community activists, clients, and academics challenged my fundamental thinking and led me to embrace the contradiction of counseling. I do not need to have the answer—indeed, there may not even be an answer. But I can puzzle through it with clients by sharing my knowledge and using my skills while accepting theirs. I do not have to decide between taking the lead on change or simply reciting a menu of options for clients. I can instead engage in an expansive and honest dialogue, and see how it develops.

The fear of leading a client astray is real for a reason. But that should not prevent us when counseling clients from openly discussing the ways that our system is broken. Quite the contrary, we have an obligation to counsel about how oppression operates; otherwise we would be furthering that oppression. A fuller engagement with issues makes it easier to show clients why their options may actually be limited in criminal court, while also showing where they or others can push back on those limitations in other forums.

This collaboration often naturally develops because defenders engaging in counseling become exposed to the reality of how oppression operates. By showing clients their limited choices, defenders can see the injustice at work and recognize it for what it is. Defenders see how the law being overly broad means that it catches entire communities in its net, provides a fake veneer of process and impartiality, and strips people of options to assert their rights—all while paying lip service to autonomy. When confronted with this, defenders often choose to go further: They peel back the veil on the law and tell it like it is. This also reveals to defenders the value in learning from clients about the reality of the law, how it actually operates, and extralegal forums where it can be challenged. This dialogue can lead to a true collaboration, both partners demystifying the law and then discussing steps to push back against it.

Attorneys have often pointed to ethical rules to say that they are limited in the counseling space. But these are often constraints that defenders unnecessarily place on themselves, self-inflicted wounds to avoid the even deeper hurt of grappling with the true nature of counseling in a carceral system. These same constraints were overcome in the past with the expansion of counseling to include holistic services. Discussions about immigration were once considered outside the proper scope of criminal counseling—but now are mandated as the bare minimum for effectiveness. Conscripting a client to a cause may be an ethical issue, but the expansion of the counseling conversation is actually consistent with ethical requirements.

The model rules require lawyers to provide information so that the client can determine the scope of representation. That can, and should, mean a broad conversation about policing, race, class, criminal court, and related concepts so that clients can make informed decisions about the objectives of representation—rather than simply relying on a defender’s limited menu of options. Defenders have the agency to treat clients as partners so they both can look beyond purely legal considerations or court-based options. As an added benefit, broadening the counseling conversation can help manage the burnout attorneys otherwise suffer from the cognitive dissonance of furthering a system they are well situated to recognize as unjust.

Counseling about a criminal case, as with any space in the criminal legal system, is likely not going to be the site of broader transformational change. But it does not need to be an obstacle. Counseling can be a step toward a radical reimagining by allowing a dialogue encompassing different sources of knowledge, experience, and tactics to engage with the underlying reasons why the system is the way it is.

When we counsel in this manner, we are previewing the system we would eventually like to see, where client choices are not constrained, and where the priority of legal reasoning does not stifle collectivism or other tactics. Turning the counseling site into a broad-ranging conversation about why the criminal legal system is constraining client choice allows for engagement with the underlying mechanisms that reinforce oppression. Clients and attorneys can then go forth from that location, engage with others, and share one another’s stories about the reality of the law. This allows a capaciousness both in whom to engage with in building coalitions but also in the manner of change and in what tactics to pursue to accomplish them. This can be an important step in increasing consciousness of both clients and defenders. Attorneys can share insider knowledge with clients while learning the real effects of the law from clients who are better situated to know. If defenders are principled and intentional in counseling clients about oppression, it can help mitigate how our counseling would otherwise further oppression.

_{Image: Cheuk Wai Lee/Unsplash}

Contributors

Angelo Petrigh Angelo Petrigh is a Clinical Associate Professor in Boston University School of Law’s Defender Clinic. Prior to academia he was a public defender for twelve years and the Training Director of the Bronx Defenders’ Criminal Defense Practice.

Topics

• Decarceral Pathways
• Institutions & Practices

Tags

• criminal courts
• criminal legal system
• public defenders