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In choosing public defender, use a restorative justice lens

A strong public defense starts with an interdisciplinary team of attorneys and social service providers who care for the whole person.

Cook County Board President Toni Preckwinkle
Pat Nabong/Sun-Times

In the wake of George Floyd’s death, over-policing black communities became the national conversation. But the fact is, even though it’s not being talked about, public defense is critical to ending this problem as well. This is one of the most pressing civil rights issues of our day – the dire need to strengthen public defense.

Cook County Board President Toni Preckwinkle will soon decide whether to appoint Sharone Mitchell or Emmanuel Andre as the county’s public defender. There are many watching and hoping the two candidates will be evaluated through a restorative justice lens. As Preckwinkle makes her decision, a model of defense advancing locally in North Lawndale can play a crucial role to reduce the over-policing, over-prosecuting, and mass incarceration of black and brown men and women. We believe the candidate most capable of implementing this model of defense is what Cook County needs.

A strong public defense starts with an interdisciplinary team of attorneys and social service providers who care for the whole person. A holistic team works with the client’s family and community – and is informed by numerous disciplines such as case management, street outreach, mental and behavioral health, restorative justice and violence prevention.

Partnering with existing neighborhood infrastructure is essential. The community stands ready to provide insight on how to support clients, particularly young ones. Working closely with schools, community leaders and service-providers, public defenders can keep defendants at home to await trial with community support instead of jail.

Listening to the community will lead to restorative justice, which a strong public defense embraces to bring healing to victims, neighborhoods and defendants. Everybody benefits from a process in which clients understand the harm they caused to a person and community. Restorative justice also provides treatment for the harm the client has experienced. This is particularly necessary as the Illinois Juvenile Court Act requires restorative solutions as alternatives to traditional forms of punishment.

We must also focus on young defendants, including those who are not technically juveniles, though science says they lack full decision-making abilities. Decades of research in developmental psychology, neurobiology and sociology teach us that individuals under the age of 25 are worthy of greater investment and specialized care.

Then, of course, there’s the lawyering. A strong public defense brings clients home, negotiates favorable plea deals, conducts independent investigations and files pre-trial motions.

The harms of jail, particularly for youth, are well-documented. Even an unfavorable plea deal sounds appealing when you are in jail. A strong public defense fights to bring clients home to prepare a legal strategy because those plea deals are far too common. Effective plea negotiation requires “mitigation packages” for every client, which include documents substantiating a defendant’s positive achievements, letters of support from the family and community, sympathetic facts and social support.

Though it’s reactive by the nature of defense, the legal representation can also be proactive. Instead of relying solely on the state’s evidence, a strong public defense conducts an independent investigation. This fact-finding process goes beyond the most basic issuing of subpoenas and includes visiting crime scenes, interviewing witnesses, and gathering physical evidence not gathered by police. And when police or prosecutors violate a client’s constitutional rights, pretrial motions hold them accountable to our Constitution, which secures better outcomes for clients.

A strong public defense also looks inward at its own racial bias, which exists in public defenders as much as it does in police officers, prosecutors, judges and the culture at large. Public defenders should examine inherent racism to consider how it affects the way they represent (or don’t represent) their clients.

As the cases proceed and eventually conclude, the public remains blind to the big picture because there is little data and research on effective models of public defense. This deficiency enables ineffective practices and stifles innovation. We need a public defender who supports transparent, rigorous and independent evaluation.

If the next public defender implements these practices, our communities – particularly our communities of color – will benefit from increased accountability for police and prosecutors, lower incarceration rates and greater investment in our black and brown youth.

President Preckwinkle, we cannot wait. We need this now.

Cliff Nellis is executive director of the Lawndale Christian Legal Center, a nonprofit that provides holistic community-based legal representation for individuals, 24 and under, from the North Lawndale neighborhood.