Too Few Lawyers, Too Many Cases: Examining Triage in the U.S. Criminal Justice System

Objectives:

Students will be able to...

• Define and understand triage as used by public defenders
• Analyze how triage affects court-involved people and their communities

• Evaluate issues in the public defender system and how they impact justice

Warm-up:

On a separate sheet of paper, answer the following questions:

1. The Sixth Amendment of the Constitution grants the right to legal counsel to people charged with a crime. What are some other rights the amendment lays out?
2. On March 18, 1963, the landmark case of Gideon v. Wainwright was heard in the Supreme Court. The Court ruled that under the Constitution, the State should provide legal representation in criminal cases for defendants who are unable to afford it. However, many defendants have difficulty accessing this right. Why do you think that might be?

Introducing the Lesson:

Since the 1970s, the incarcerated population in the United States has risen by 700 percent, and U.S. jails and prisons now house nearly 2.3 million people. The criminal justice system has been unable to keep up with that spike. According to federal data, the number of people who qualify for a public defender greatly exceeds the number of legal professionals available. As a result, lawyers are compelled to rely on the practice of triage.

In the context of the legal system, triage refers to the practice of lawyers prioritizing clients with a lower chance of being proven guilty, or a higher chance of being found innocent. In this lesson, we will explore the public defender system in Missouri and how triage is implemented there. Here is some useful vocabulary for this lesson:

• Defendant
• Public defender
• Triage
• Incarceration
• Bail
• Conviction
• Parole

• Pro bono

Introducing the Resources:

1. Listen to the first six minutes (0:00–6:01) of “Broken Justice, Episode 1: 'Triage'” by Amna Nawaz, Frank Carlson, and Vika Aronson. Respond to the following questions as you listen, and then share your answers with the rest of your class.

1. Who are Jeff Esparza’s clients?
2. About how many cases does Esparza carry at a time?
3. What’s a fear shared by public defenders in Kansas City and across the country?
4. What is one nickname for public defenders? How is one’s ability to pay for a lawyer determined in Missouri?

2. Listen to the first six and a half minutes (0:00–6:25) of “Broken Justice, Episode 3: When Things Go Wrong” by Amna Nawaz, Frank Carlson, and Vika Aronson. Respond to the following questions as you listen, and then share your answers with the rest of your class.

1. Ricky Kidd says, “I 100% believe I am in prison today because of the Missouri public defender system.” According to this episode, what are three things that can cause a wrongful conviction?
2. Who was the first public defender to represent Kidd?
3. How long did Kidd spend in prison before a lawyer took up his case?

Discussion:

Reflect, and write your responses to the following questions on a separate sheet of paper:

1. Jeff Esparza is quoted saying, “I feel the stress of a hundred and fifty souls on my back.” What are some ethical concerns lawyers might have about their caseload?
2. According to the first episode of “Broken Justice,” the Missouri public defender system handled 75,000 cases in 2018 with only 380 lawyers. Who could this large caseload negatively affect, and how?
3. The podcast discusses how Ricky Kidd struggled for six years to find a lawyer to take up his case.
   • What obstacles did he encounter?
   • What does this tell you about the experience of court-involved individuals and legal representation?
4. “Broken Justice” is reported in the form of a podcast.
   • What are the advantages of using this medium to convey the story? What are the drawbacks?
   • If you were in the journalists’ place, what medium would you use to tell Ricky Kidd’s story?
5. The final episode of the podcast offers two solutions to repair the public defender system: increasing the number of lawyers, and reducing the number of incarcerated people.
   • What do you think would have to happen for these solutions to be enacted?
   • What additional reforms or solutions can you think of that could improve circumstances for individuals like Jeff Esparza and Ricky Kidd?

Extension Activities:

• Who are some of the people or groups advocating for reforms in incarceration and the public defender system?
• What are their goals?
• What are they doing to work toward those goals?

Having done your research, write a paper, make a presentation to your classmates, or write a letter to a local representative encouraging them to address the issue(s) you identified.

Option 2.

Step 1. Read The Joy of Togetherness by Taylor Jamie Yarns, and answer the following questions.

• How does the poem make you feel?
• This poem was written in response to a news story. What do you think that news story might be about?

Step 2. Explore “Let’s Make It Easier for Kids to Visit Incarcerated Parents” by Jaime Joyce, the news story that inspired Yarns’ poem. How do the experiences of the families in this article relate to Ricky Kidd’s story?

Step 3. Write a poem in response to the “Broken Justice” podcast, using quotes that come directly from the episodes you listened to. For more detailed instructions, refer to this lesson.

Bonus: Submit your poem to the Fighting Words Poetry Contest for the chance to win cash prizes and publication.

Option 3. COVID-19 (the coronavirus) is a pandemic affecting all people across the United States and much of the world. Jails, prisons, and other detention facilities are spaces that put people at, especially high risk.

1. Learn more about how the coronavirus is affecting incarcerated people and recommended policies for making this vulnerable population safer using this resource from The Justice Collaborative.

2. Find out whether jails and/or prisons near you are implementing the recommended policies from the Justice Collaborative resource.

3. If your state or locality isn’t doing all they could do to ensure the health and safety of incarcerated people, consider reaching out to legal policy decision-makers in your community, such as your governor, city council members, or prosecutors. The Justice Collaborative contains example letters you can use to get started in reaching out to these individuals.