 |
| Vichal Kumar |
In America, an arrest occurs every three seconds.[1] The ripple effect, though, can be felt for many years to come. Families become unhoused, people lose their jobs and futures are rewritten — and it all starts with an arrest. These effects are often referred to as enmeshed penalties or collateral consequences.
In our current system, people who have been to prison or jail return home sicker,[2] poorer,[3] deeper in debt (often caused by the system itself),[4] and less able to thrive[5] — placing them at an even greater risk of recidivism.
At the same time, in this country's courts, 8 out of 10 people cannot afford a lawyer and thus rely on the public defense system.[6]
Public defenders should therefore lean into a holistic, collaborative and client-led approach to public defense. This approach has been around for several decades, with results that support its premise: that helping clients address the issues ancillary to their legal case leads to better outcomes.[7]
However, the adoption of this approach is more critical now than ever.
With multiple public benefit programs, such as Medicaid and the Supplemental Nutrition Assistance Program, facing severe cuts, and with the shifting of responsibilities to state and local governments, public defenders need to leverage their broad reach to play a critical role in plugging these service gaps.[8] Justice is not just about securing a favorable outcome for our clients or protecting their fundamental rights; it's about ensuring that clients, when they leave the courtroom, can not only survive but also thrive, breaking the cycle of incarceration for good.
Change can occur at the local or county level, or it can be a vast transformation at the state level. Sometimes, the transformation can be informed by the basic building blocks of customer service. It's about how the phones are answered, when attorneys respond to a client's call, what information is communicated to them and how often.
Defenders must ask themselves: What needs do we see in our communities? How are we hoping to address them? What prevents us from doing so today?
So how can all of America's 5,900 defender systems become engines of public safety, public health and economic mobility?[9]
Ask the right questions.
Often, a favorable resolution for a client begins at the intake stage.
It may not seem like it, but this is perhaps the most critical stage of the defense process. This is the chance to collect vital information that can inform strategy, future negotiations and discovery requests, and, crucially, keep the client and their families safe from the harms of pretrial incarceration.
But this is also the stage when clients are least able to predict what public defenders need to know — or what they might be able to help with. After all, a defender agency might have an interdisciplinary team who can help a family enroll in health insurance or get access to care — but who would think of bringing up their much-needed medication refill with their criminal defense attorney?
When conducting intakes, staff need to dig in, screen for enmeshed penalties at arrest, identify social service needs and understand the client at a holistic level. Defenders can't expect their clients to volunteer the information they need most — it's on defenders to elicit it.
Ask about the client's living situation. Do they have a stable place to live? What kind of housing do they have? Are they unhoused? How long have they been so? Do they have children? Are there custody issues?
What about employment? Do they have a job? Where? Has their job been affected by the case?
Does the client have a health diagnosis? Mental health diagnosis? Current medication?
Who is the client's support network?
It's also not just about the questions, but where the intakes occur — the court, prison, or in a friendlier or neutral setting. How are the intake results used after? Will there be a lag time before action is taken, or can a client expect next steps immediately? Who has access to the intake results? At a minimum, intake information should be easily accessible and used by the appropriate staff and attorneys.
Yes, this takes time — a luxury many public defenders don't have — but creating standard checklists with short and long versions can remove the guesswork and create a smoother process. These questions can be incorporated into preexisting intake procedures or completed separately by support staff as supplements that can guide service delivery.
Also, be sure to look inward. Know your office and dig into every aspect of it. Interview attorneys and nonattorney staff and ask them about the client-facing services they already provide and the questions they're asking. They are often doing more than is known.
Get connected.
Once you have all of this intake information, then what? How do you help the client address these enmeshed penalties?
Some defender offices, especially larger ones, may be able to provide some of these services internally, such as by having an immigration attorney on staff, or someone who specializes in family defense or eviction defense.
But many defender offices do not have that capacity. That's where a resource guide comes in. Think of the guide as a living document that acts as a directory and map to quick and reliable referrals.
Start by canvassing local service providers and community organizations to compile information about these key primary resource areas:
- Local Social Security, Medicaid, SNAP and Temporary Assistance for Needy Families offices;
- Civil legal providers for help with eviction, bankruptcy or immigration matters;
- Substance use treatment centers;
- Food banks or clothing closets;
- Emergency shelters, Section 8 housing, public housing and transitional housing;
- Family counselors, parenting classes, free or affordable childcare, individualized education program support and infant supplies providers;
- The local office for employment-related certificates, expungement resources, job training and GED programs;
- Clerks for fines and fees, community credit or banking options, local impound yards or towing companies; and
- Providers of anger management, safe driving, DUI and domestic violence classes.
Starting a list is often the hardest and most time-intensive part. It's also the perfect task for an intern, social worker, system navigator or client advocate. Compiling these guides also serves as an opportunity for defenders to introduce themselves to the broader community they serve, making meaningful connections with outside providers.
To supercharge the power of these connections, don't leave them on paper. Reserve one day per month to meet with an outside partner or potential partner. Go get coffee with the intake staff at your local treatment programs. Grab lunch with a civil legal aid attorney. Take a tour of your nearest family shelter. Build real, human-to-human relationships that will help you make the right call — and reach the right person — when you have a client in need.
Change the narrative.
Okay, so you've done intake and connected clients to resources. How does this translate into success in the courtroom?
One of the most powerful tools that public defenders have is the personal narrative of the client. And part of that narrative is the why.
What led to the allegations your client is facing? Well, you might already have an idea after intake. And through intake, the client may have already been connected to services. Perhaps these services have improved the client's situation. Now they are employed, housed or in treatment. This is all critical information that can inform an effective mitigation memo — and fundamentally change the outcome of your case.
Mitigation is a collection of information that humanizes clients, contextualizes their actions and offers a better way forward in their legal case. Some examples of mitigation could include education records, housing records, health records, and interviews with clients or their families about their history and future plans. The goal of mitigation is to create a compelling narrative that can help other judicial actors consider the whole person, not just the charge sheet.
Mitigation, especially that which is informed by personal history and service needs, provides critical context that can give prosecutors and judicial officers the information they need to decide between a carceral solution, a noncarceral solution or a flat-out dismissal.[10]
Defenders often reserve mitigation for cases in which the stakes are extremely high, such as juvenile cases, serious felonies or, where applicable, death-eligible offenses. But offices need to consider how often they collect mitigation information and reframe it as a persuasive argument, not neutral reporting.
If you aren't collecting mitigation already, start now. If you're only using mitigation in serious felonies, look at ways of expanding it to serious misdemeanors and low-level felonies as well. The collection of mitigation should be routine practice, not just reserved as an above-and-beyond option.
There are a few ways to do this:
- Create mitigation instructions, templates or samples that can be made readily available.
- Allow the information collected during the mitigation process to inform the services you provide to your client and vice versa. Be sure to report back on the success of the service provision, as that is mitigating information itself.
- Track outcomes, then use those in regular trainings.
Explore unknown corners.
Though these ideas are feasible for any defender, they clearly work better when a defender has the funding and staff time to dedicate to truly investing in client service and mitigation. These are the modern-day realities of public defense. But there are often answers, resources and opportunities — if you know where to look.
Defenders are part of a broader community, and the value of a well-equipped and funded defender stretches well beyond the courtroom.
Explore funding opportunities beyond those aimed at public defense. There are plenty of topical grants available to address health issues and substance use. There are newer revenue streams that public defenders can make a case for tapping into, like marijuana legalization or opioid settlement funds.[11] And the more a defender is planning on expanding their service provision, the more they can make the case for new resource streams in the public health, economic mobility or public safety funding categories.
Investigate whether there are grants or funds available related to the specific populations you're already serving, such as grants for veterans, kids or folks with mental health concerns.
Conclusion
A strong defense isn't built in courtrooms alone. It's built on the choices we make about who gets support, who gets second chances and who gets to be seen as more than their worst mistake.
To be clear, a holistic, collaborative and client-led approach is not a replacement for a robust and zealous courtroom defense. The way we move public defense forward is by marrying the two, allowing the work that occurs outside the courtroom — intake, connection with social services and mitigation — to work in concert with the skilled lawyering that happens inside it.
The times we live in now implore us to build a criminal legal system that defends people and the well-being of their communities, not just the Constitution and cases.
Vichal Kumar is the managing director for capacity building at Partners for Justice.
"Perspectives" is a regular feature written by guest authors on access to justice issues. To pitch article ideas, email expertanalysis@law360.com.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of their employer, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
[1] https://www.vera.org/publications/arrest-trends-every-three-seconds-landing/arrest-trends-every-three-seconds/findings.
[2] https://www.partnersforjustice.org/evidence/incarceration-destroys-health.
[3] https://www.partnersforjustice.org/evidence/impact-of-the-carceral-system-on-economic-stability-and-mobility.
[4] https://www.partnersforjustice.org/evidence/debt-and-punishment-an-american-cycle.
[5] https://www.partnersforjustice.org/evidence/strong-social-ties-increase-safety.
[6] https://bjs.ojp.gov/content/pub/pdf/id.pdf.
[7] https://www.themarshallproject.org/2018/11/12/the-courts-see-a-crime-these-lawyers-see-a-whole-life.
[8] https://www.washingtonpost.com/politics/2025/09/08/states-medicaid-snap-cuts-trump/.
[9] https://6ac.org/.
[10] https://scholarworks.law.ubalt.edu/ublr/vol52/iss3/4/.
[11] https://www.nacdl.org/Landing/Opioid-Settlements.