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So a man sat in an Oregon jail for months.

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He wasn't waiting for like a trial date or a sentencing hearing.

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He was waiting for a name, specifically the name of a lawyer.

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In case 623CV-01361, as boring as that is, a federal judge finally had to step in because
the state of Oregon simply ran out of public defenders.

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They just stopped appearing like a server timing out because the bandwidth had been
throttled to zero.

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It's been 63 years since justice Hugo Black wrote in Gideon versus Wainwright that lawyers
in criminal courts are necessities.

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They're not luxuries.

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But if you look at the fiscal year, 2024 financial services and general government bill,
the math tells a completely different story.

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While the national district attorneys association spent $1,120,000 lobbying last year to
keep the machinery of

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prosecution hummed and lubricated.

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The federal public defense system was staring down a $106 million budget shortfall.

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This isn't a glitch.

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When Jeff Sessions shuttered the Office for Access to Justice in 2017, he wasn't just
cutting costs.

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He was deleting the only department in the Department of Justice whose job it was to
ensure the Sixth Amendment actually functioned for someone with zero dollars in their bank

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account.

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We like to pretend the courtroom is a neutral arena, but it's actually a subscription
service.

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And if you can't afford the premium tier, the system is designed to let you rot in the
queue.

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Welcome back to The Overlap, I am Joshua.

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And I'm Will.

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We're coming to you from the crawl space where we spend our time looking at the structural
rot beneath the floorboards of the American experiment.

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Usually we're talking about how the private sector extracts your data or your labor, but
today we're gonna talk about how the government extracts your liberty by simply refusing

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to fund the people who defend it.

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To show you the ultimate irony, we have this high-minded philosophical commitment to the
adversarial system.

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We tell ourselves that the truth emerges from the clash of two equal sides.

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But you can't have a clash if one side is a heavyweight champion funded by billions in
grants and the other is a single, overextended public defender with 60 active cases and a

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laptop from 2012.

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That's all too common.

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But it's not just the hardware, right?

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Like it's not just the fact that they're still using Windows 98.

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It's kind of the deliberate under-provisioning of resources.

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In 1964, LBJ signed the Criminal Justice Act, which was supposed to solve this.

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He gave it a $1 million budget to start with.

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But then you fast forward to 1994, and Joe Biden and Bill Clinton are pushing through a
30.2

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billion dollar crime bill.

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They built prisons.

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They hired police officers.

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They gave the system more users than it could ever really handle, but they never actually
scaled the defense infrastructure to match it.

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And that's really the source of our disagreement on this because I look at what Merrick
Garland and Rachel Rossi did in October 2023 with executive order of 14-0-29.

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They reestablished the office for access to justice with a $10 million budget.

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That is a functional pivot.

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It's an institutional realization that when the public defense system collapses, the
entire legitimacy of the judiciary goes with it.

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We're seeing a move toward the HURL hiring model.

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00:03:58,829 --> 00:04:02,932
We'll talk about all these terms going up because that may sound really foreign to most of
you.

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But the Hurl-Haring model is where the state finally takes responsibility for the mess it
made in the counties.

45
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Yeah, I mean, I think I think ten million dollars is kind of a rounding error.

46
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Right.

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00:04:12,768 --> 00:04:21,670
um When you're looking at a hundred million dollar shortfall annually, it's kind of the
price of like a mid-sized cloud migration for a logistics company.

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But meanwhile, the big looming fraternal order of police, they spent two hundred and
twenty thousand dollars last year on lobbying for more JAG money.

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Those grants you were talking about earlier.

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So you think.

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A few memos from Rachel Rossi are going to fix a system that financially incentivizes
people to produce guilty pleas.

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So the system doesn't really want an adversarial process.

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It wants a high throughput pipeline.

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00:04:49,081 --> 00:04:53,624
And a lot of times we hear that as, it's a plea system, right?

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It's a bargaining system.

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Right, and you see it as just a memo.

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I don't think it's just a memo.

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I think it's actually a legal framework.

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You know, if we don't have these offices, we don't even have a mechanism to report the
failure.

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So what you see is a low bandwidth pipe I see as a structural pillar that we've allowed to
erode, but one that we can still reinforce with the right legislative pressure.

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You always want to fix the pillar while the roof is hitting the floor.

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and you'd rather tear the whole house down and hope it rains less tomorrow.

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But look, I think we both agree on that right now.

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Right now where we stand is the Sixth Amendment is currently a terms and conditions page
that no one is reading and the DOJ is trying to click through.

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Oh, absolutely.

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It's the EULA, you know, like that everybody just scrolls and agrees to.

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But let's look at the actual cost of this free council.

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OK, so let's talk about the free part of the Sixth Amendment, because that's where the
architecture that I'm talking about in my sort of viewpoint actually fails.

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So in March 1963, we get the Gideon V.

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Wainwright.

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You've got Clarence Earl Gideon, a guy with an eighth grade education.

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who was reportedly seen leaving a pool room, a pool hall in Panama City, Florida.

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Not something you want to be doing on a weekend in general.

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Panama City sucks.

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with some, you know, had change in his pockets and a bottle of wine.

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I mean, he's having a good night.

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It's a weekend.

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He's charged with breaking and entering with intent to commit a misdemeanor.

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So he asks for a lawyer because he doesn't have any money except for the change in his
pocket.

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Of course, the judge says no.

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because Florida law at the time only provided legal counsel in capital cases, basically
saying unless the state was trying to kill you, they're not gonna help you defend

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yourself.

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Right.

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And shout out to our friends from Panama City who may be listening to this.

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We don't think you're worse than anywhere else in Florida for the record.

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But here we have, and getting you in right, have Hugo Black writing for the Supreme Court
in a case that's now recorded in the US recorder or the US recorder for Supreme Court

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cases.

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372 US 335, if our nerds out there are looking for the summary, makes the sweeping,
beautiful philosophical claim.

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Justice Black says that in our adversary system of criminal justice, any person hailed
into court who is too poor to hire a lawyer cannot, cannot be assured a fair trial unless

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counsel is provided for him or her.

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It was a foundational moment for the equal justice under law ideal.

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It wasn't just about Gideon, it was about the integrity of the courtroom as a space where
the state's power is checked by a peer.

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Right, so that's like the clean, pretty, you know, nice display version.

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And honestly, I agree with you that it looks great on the landing page, right?

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But if you look at the backend implementation, one year later, August 1964, LBJ signs the
Criminal Justice Act, Public Law 88455.

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That's when he authorized a million dollars for the entire country.

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00:07:53,360 --> 00:07:58,120
to kickstart the representation of indigent defendants in federal courts.

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A million dollars, like in 1964.

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00:08:00,940 --> 00:08:04,880
That was already a joke for a nationwide rollout.

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00:08:04,880 --> 00:08:08,440
At the time, we're looking at something like 300 million people.

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We're talking about building a literal infrastructure of defense from nothing, and LBJ
throws like a million dollars at it while also at the same time ramping up the budgets of

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the departments that are doing the arresting and doing the imprisonment.

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00:08:23,587 --> 00:08:34,150
But you have to acknowledge that the intent of the Criminal Justice Act, before the act,
if you were in federal court, you were poor, the judge just like drafted a local lawyer.

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He just called up Billy Bob.

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00:08:36,410 --> 00:08:40,731
And sometimes he did it for free, sometimes for, you know, pittance.

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00:08:40,731 --> 00:08:46,673
But the Criminal Justice Act was the first time the federal government said, we have a
line item for the defense.

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It created the federal public defender organizations.

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It was an institutional recognition that the state has a financial obligation to the
person it's prosecuting.

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It wasn't just a suggestion anymore.

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It was a mandate.

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And a mandate without a load balancer is just a DDoS attack on the poor.

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The system was never really meant to scale for the volume that they were planning.

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While the Criminal Justice Act was trying to figure out how to pay a lawyer 20 bucks an
hour, the infrastructure of the war on crime was being built with heavy duty concrete.

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That's when we jump forward to 1994.

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So that's the inflection point where the autopsy really begins under Bill Clinton and Joe
Biden pushing through HR 3355, which is the Violent Crime Control and Law Enforcement Act

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to the tune of 30.2 buh-buh-buh billion dollars.

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And that $30.2 billion really changed the DNA of American life.

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It wasn't just about more police on the street.

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It was about the truth and sentencing grants.

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It was about 9.7 billion specifically for prisons.

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Almost a third of the bill, a third of the price tag is for prisons alone, which tells you
where they assume everybody's going, right?

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um It created a massive incentive for states to keep people behind bars for 85 % of their
sentences.

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00:10:06,423 --> 00:10:10,966
Philosophically, we shifted from a corrective system to a containment system.

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and we decided that the most efficient way to handle social friction was to build more
cells.

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Right.

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And I mean, that's, that's kind of my, my, my viewpoint as well.

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They allocated that $30 billion to, as fuel for this, this engine of crushing human
beings.

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But how much of, of HR 3355 went to actually making sure that the people who were being
swept up into this $9.7 billion prison expansion actually had the defense guaranteed by,

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by Hugo Black in 1963.

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And I argued that that's effectively zero.

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They spent billions on the supply side of the carceral state, know, police, prosecutors,
prison guards, and left the sort of quality control side to the public defenders, kind of

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a rot in the sun.

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It's like building a high speed train, but refusing to hire anybody to make sure the
tracks are actually bolted down into the ground and you're just accelerating the rate of

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the craft.

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00:11:13,467 --> 00:11:16,707
Which brings us to the actual human cost of that imbalance.

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00:11:17,207 --> 00:11:20,847
So you look at the case of Leo Hurl Herring in New York.

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This is not ancient history.

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We're talking about 2010 here.

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He was the lead plaintiff in a class action because the public defense in five New York
counties was so underfunded it was functionally nonexistent.

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That's five New York counties.

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00:11:33,987 --> 00:11:38,967
That's a very populous state where people can't get access to a public defender.

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We're talking about lawyers meeting their clients for the first time five minutes before a
plea hearing.

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in a hallway?

144
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That's not a defense, that's a processing center.

145
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The Hurl-Haring versus State of New York settlement finally forced the state to take
responsibility because the counties were bankrupt.

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bankrupt because the federal government stopped caring about the access part of justice.

147
00:12:00,136 --> 00:12:02,036
Fast forward a little bit further.

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We say that this is really not ancient history, but 2010 compared to 2026.

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This is like a world ago, but we're going to fast forward just a little bit more than that
to 2013.

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Of course, know, this is Barack Obama's in the White House.

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It was a completely different time.

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We had a much brighter future in our view view screens.

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we hit the federal budget sequestration.

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And look, these are dense terms.

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We understand that, right?

156
00:12:31,488 --> 00:12:42,208
If you're not a political nerd like we are and don't get into the processes of the federal
government, these can sometimes be a little boring, but we hit federal budget

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sequestration.

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00:12:43,628 --> 00:12:51,248
And the administrative office of the US courts had reported that a $52 million

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budget deficit specifically for public defense.

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00:12:55,438 --> 00:12:56,758
You know what happened?

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Federal defenders were furloughed.

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00:12:59,600 --> 00:13:01,618
I mean, we're seeing that right now with TSA, right?

163
00:13:01,618 --> 00:13:13,306
Like, but this was like just the people who defend people from going to prison, but they
had to stop taking cases while the Department of Justice prosecution budget didn't see the

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00:13:13,306 --> 00:13:15,547
same level of existential threat.

165
00:13:15,687 --> 00:13:18,248
So they were still processing these cases.

166
00:13:18,734 --> 00:13:22,426
But the defenders were literally not allowed to show up for their clients.

167
00:13:22,606 --> 00:13:34,001
So when you cut $52 million from a system that's already running uh at 110 % capacity,
that's not trimming fat, like you're cutting brake lines and you're trimming off entire

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muscles from the animal.

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All right.

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00:13:36,681 --> 00:13:40,641
And by the way, if those TSA agents don't show up soon, we might need more public
defenders.

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00:13:41,241 --> 00:13:43,981
But, uh, that's sequestration.

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Right.

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00:13:44,841 --> 00:13:47,921
That sequestration was a disaster for the sixth amendment.

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00:13:47,921 --> 00:13:51,781
I created a backlog that we're still dealing with today, which is hard to imagine.

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00:13:51,821 --> 00:13:59,461
If your backlog traces back to 2013, like you're talking about a world away, um, this
means a lot of people are rotting in prison waiting for public defender.

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00:13:59,801 --> 00:14:02,301
Uh, but you have to look at the attempt to fix it.

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00:14:02,301 --> 00:14:06,421
So Eric Holder during that same era was trying to push the smart on crime initiative.

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00:14:06,616 --> 00:14:10,323
They were trying to redirect the DOJ away from low-level mandatory minimums.

179
00:14:10,323 --> 00:14:14,730
There was an internal push to recognize that the 1994 bill had overshot the mark.

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00:14:14,731 --> 00:14:19,760
They knew the institutional legitimacy was failing when you have the people like this
previous guy in Oregon.

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00:14:20,620 --> 00:14:22,540
Yeah, so let's talk about previous guy.

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00:14:22,540 --> 00:14:24,440
His name is really hard to pronounce.

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00:14:24,440 --> 00:14:27,900
I am just going to use his last name, which is Nzana.

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00:14:28,560 --> 00:14:34,320
So this is the the 2023 system crash that I was talking about in kind of real time.

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00:14:34,320 --> 00:14:40,940
So in Oregon and the case number was 623 CVO 1361.

186
00:14:41,180 --> 00:14:47,092
So Nzana is sitting in a jail cell for months, months, no lawyer.

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00:14:47,092 --> 00:14:59,100
Not a bad lawyer, not an overworked lawyer, no lawyer, because the state of Oregon
literally ran out of people willing to work for the sub market rates the state provides.

188
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A federal judge eventually had to order the release of him because the state was violating
the most basic constitutional requirement.

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00:15:07,228 --> 00:15:14,022
We've reached the point where the hardware is so old it can't even boot windows anymore.

190
00:15:14,517 --> 00:15:19,801
Yeah, I mean, it's a constitutional crisis and that word is overused now, but this was a
constitutional crisis.

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00:15:19,801 --> 00:15:23,224
Even though we see them on a different order of magnitude now, this was one.

192
00:15:23,265 --> 00:15:30,332
When a judge has to release a defendant, not because they're innocent, but because the
state is too incompetent to provide a lawyer, the social contract is shredded.

193
00:15:30,332 --> 00:15:33,336
But this is where the Office for Access to Justice comes in, right?

194
00:15:33,336 --> 00:15:37,177
It was created to be the watchdog for this exact scenario.

195
00:15:37,177 --> 00:15:41,070
And then in 2017, Jeff Sessions just turned it off.

196
00:15:41,997 --> 00:15:44,279
which starting to become a familiar playbook.

197
00:15:44,360 --> 00:15:47,725
He issued an internal memorandum and effectively closed the office.

198
00:15:47,725 --> 00:15:51,821
He decided the federal government didn't need a department just dedicated to ensuring poor
people had legal help.

199
00:15:51,821 --> 00:15:55,616
Because why do they deserve any representation, right?

200
00:15:55,616 --> 00:15:58,920
They're not funding our campaigns.

201
00:15:59,113 --> 00:16:03,386
We it's funny because you say that the constitutional crisis is overused.

202
00:16:03,386 --> 00:16:08,008
would argue that it's not overused that we're just seeing way too many of them now.

203
00:16:08,008 --> 00:16:12,551
But no Jeff Sessions saw like a bug right and decided it was a feature.

204
00:16:12,551 --> 00:16:13,862
And I say that a lot right.

205
00:16:13,862 --> 00:16:16,653
Like that's not a bug it's a feature.

206
00:16:16,653 --> 00:16:26,059
But so by closing the office for access to justice in 2017 he basically told the
Department of Justice that

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00:16:26,059 --> 00:16:34,404
we are no longer really interested in the actual justice part of it because it's kind of
expensive or it slowed down the department part.

208
00:16:34,404 --> 00:16:36,275
He wanted this pipeline.

209
00:16:36,275 --> 00:16:38,836
He wanted this court system to run fast, right?

210
00:16:38,836 --> 00:16:43,710
So, and look, I mean, that's one of the things that we also, we also guarantee, right?

211
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Is it, is it right to a speedy trial?

212
00:16:45,703 --> 00:16:49,555
and so he was focusing more on the speedy than the trial.

213
00:16:50,216 --> 00:16:51,236
And so

214
00:16:51,344 --> 00:17:04,430
If you remove the office for access to justice, you remove the only federal office
tracking how many nzanas are sitting in cells because they don't have an attorney.

215
00:17:04,570 --> 00:17:09,912
You're deleting the log so you could pretend the server isn't on fire and that the whole
house isn't burning.

216
00:17:10,013 --> 00:17:17,077
It was like a zero dollar move on the budget that cost the system its remaining shred of
credibility.

217
00:17:17,935 --> 00:17:21,415
And that's really the tragedy of the institutional ebb and flow.

218
00:17:21,595 --> 00:17:28,115
We spend 60 years trying to build a framework from Gideon to the Criminal Justice Act to
the Office for Access to Justice.

219
00:17:28,115 --> 00:17:35,735
And it can all be dismantled by a single memorandum from an attorney general who views the
defense as an obstacle rather than a partner in the process.

220
00:17:36,095 --> 00:17:37,395
But look at the rebound.

221
00:17:37,395 --> 00:17:43,435
2023, Merrick Garland reestablishes the Office for Access to Justice under Executive Order
14029.

222
00:17:43,615 --> 00:17:45,255
He brings in Rachel Rossi.

223
00:17:45,255 --> 00:17:47,255
They give it a $10 million budget.

224
00:17:47,532 --> 00:17:48,404
Is it enough?

225
00:17:48,404 --> 00:17:49,206
No.

226
00:17:49,206 --> 00:17:53,980
think the principle was that the DOJ cannot be like a department of prosecution.

227
00:17:53,980 --> 00:17:57,322
And I think that they're sort of acknowledging the humanity there, right?

228
00:17:57,322 --> 00:18:00,726
Like in saying, look, this is also a human problem.

229
00:18:00,726 --> 00:18:10,246
I mean, and look, the $10 million budget, it's the budget for like a blockbuster movie,
but not just the movie part, it's just the catering section, right?

230
00:18:10,246 --> 00:18:12,378
Like that is like performative theater.

231
00:18:12,378 --> 00:18:15,140
Look, and I like Merrick Garland.

232
00:18:15,285 --> 00:18:19,668
specifically because our current president-in-chief does not and did not.

233
00:18:19,668 --> 00:18:24,750
But Garland at the time was doing photo opportunities with Rachel Rossi.

234
00:18:25,470 --> 00:18:36,174
At the time, the National District Attorneys Association is spending 1.12 million just on
lobbying to keep things at the status quo.

235
00:18:36,614 --> 00:18:41,188
And then you have the RICO organization, the Fraternal Order of Police, spending $220,000
to

236
00:18:41,188 --> 00:18:56,494
protect their previous grant money to keep arresting and hurting people, which as the
government Office of Accountability 23105 345 reports point out, have massive disparities

237
00:18:56,494 --> 00:18:57,936
in how they're distributed, right?

238
00:18:57,936 --> 00:19:03,911
The money always flows toward handcuffs and never toward the person trying to take them
off.

239
00:19:04,162 --> 00:19:09,462
Sure, I'll give you that the burn jag disparity is a legitimate institutional failure.

240
00:19:09,502 --> 00:19:18,542
And the GAO report basically provide, sorry, prove that these federal grants are, which
are supposed to be the entire support to the criminal justice system, are being treated as

241
00:19:18,542 --> 00:19:21,122
a slush fund for police tech and tactical gear.

242
00:19:21,982 --> 00:19:31,502
But the fact that we have a GAO report, the fact that Dick Durbin is on the Senate floor
right now talking about a $106 million shortfall in the fiscal year 2024 financial

243
00:19:31,502 --> 00:19:32,857
services bill,

244
00:19:32,873 --> 00:19:35,860
means the institution is least acknowledging the hemorrhage.

245
00:19:35,860 --> 00:19:38,425
You can't fix a shortfall if you don't name the dollar amount.

246
00:19:38,676 --> 00:19:43,316
Yeah, but naming a dollar amount is basically T's and P's for bureaucrats, right?

247
00:19:43,316 --> 00:19:45,236
That's thoughts and prayers.

248
00:19:45,896 --> 00:19:58,476
And Dick Durbin, a terrible person, saying that we need $106 million to keep federal
public defense from collapsing is really more of a confession of his failure than a

249
00:19:58,476 --> 00:20:01,076
solution to sort of address it.

250
00:20:01,076 --> 00:20:07,336
We're talking about like a $106 million gap in a country that spends $30 billion

251
00:20:07,731 --> 00:20:12,632
30 years ago to make sure this many people were in the system to start with.

252
00:20:12,952 --> 00:20:16,594
So we have the money to build this cage.

253
00:20:16,594 --> 00:20:20,054
We just don't have the money to make sure the cage is legal.

254
00:20:20,255 --> 00:20:21,315
That's a choice.

255
00:20:21,315 --> 00:20:31,929
It's a specific, like documented historical choice to prioritize the efficiency, the
speediness of your trial over the right of the individual.

256
00:20:32,711 --> 00:20:36,124
Right, it's a choice, but it's one that's being contested.

257
00:20:36,325 --> 00:20:40,748
I mean, this happened because lawyers and activists used the courts to force the state's
hand.

258
00:20:40,748 --> 00:20:43,312
They used the institution to fix the institution.

259
00:20:43,312 --> 00:20:46,816
The settlement didn't just give money, it mandated caseload caps.

260
00:20:46,816 --> 00:20:51,279
It said a human being can only handle so much tragedy before they stop being an effective
advocate.

261
00:20:51,300 --> 00:20:53,262
That is a structural change.

262
00:20:53,262 --> 00:20:56,665
It's slow, it's painful, but it's a rewrite of the code.

263
00:20:56,916 --> 00:21:03,376
You're talking about caseload caps, like they're some sort of a new tech.

264
00:21:03,627 --> 00:21:14,507
If I told a computer engineer or a DevOps engineer, they had to manage 500 servers
manually with no automation, they would probably throw me out the door.

265
00:21:14,507 --> 00:21:21,067
But we expect a public defender to handle 500 felony cases and we call that justice.

266
00:21:21,247 --> 00:21:25,827
So the silver title way we talked about, you know, a couple episodes ago.

267
00:21:26,238 --> 00:21:31,860
those boomers in Congress, the ones like Biden, who wrote the 1994 bill.

268
00:21:31,860 --> 00:21:39,023
And look, Biden did some fine things and we can acknowledge when he did fine things, but
we have to also acknowledge when he didn't do good things.

269
00:21:39,023 --> 00:21:44,784
They built a system that relies on the guilty plea to stay afloat.

270
00:21:45,084 --> 00:21:54,993
And so if every indigent defendant actually got the Gideon treatment, a real well-funded
high bandwidth defense, the whole

271
00:21:54,993 --> 00:21:58,768
disherry would grind to a halt within a day or so.

272
00:21:59,351 --> 00:22:00,651
Right, mean, look, you're right.

273
00:22:00,651 --> 00:22:02,752
The system is predicated on the waiver of rights.

274
00:22:02,752 --> 00:22:04,293
Nobody's arguing that.

275
00:22:04,373 --> 00:22:09,495
If everyone exercised their Sixth Amendment right to a trial tomorrow, the courts would
vanish under the paperwork.

276
00:22:09,695 --> 00:22:12,756
But that's exactly why the institutional reform matters.

277
00:22:12,756 --> 00:22:19,078
We have to make the processing so expensive and so difficult for the state that they're
forced to stop overcharging and overpolicing.

278
00:22:19,119 --> 00:22:22,940
I mean, look, it may be a 12-step program, but step one is admitting that you have a
problem.

279
00:22:22,940 --> 00:22:24,480
And we're at step one.

280
00:22:24,541 --> 00:22:28,372
If we fund the defense to the level of the prosecution, though, the throughput slows down.

281
00:22:28,598 --> 00:22:32,414
And that, philosophically speaking, is when justice actually has room to breathe.

282
00:22:32,964 --> 00:22:38,738
Right, so I agree with you here on the, I actually like the 12-step analogy.

283
00:22:38,738 --> 00:22:45,823
One of the things about the 12-step program, and I've not been through it, but I have read
it for a giggle, and if you have a substance abuse issue, I'm not making fun of you, I'm

284
00:22:45,823 --> 00:22:53,848
making fun of the weird organizations that insist upon bringing religion into what is
essentially a medical problem.

285
00:22:53,848 --> 00:22:59,180
if you stay on step one and never move through the 12 steps, you're not,

286
00:22:59,314 --> 00:23:02,354
actually working the 12 step program.

287
00:23:02,605 --> 00:23:05,465
You're, you're just admitting you have a problem, right?

288
00:23:05,465 --> 00:23:10,445
So, and, and what we're seeing in our federal government is that we, just, we won't fund
it.

289
00:23:10,445 --> 00:23:12,145
That's kind of the point.

290
00:23:12,145 --> 00:23:15,605
And that's kind of what Jeff Sessions did in 2017.

291
00:23:15,605 --> 00:23:20,285
He looked at the office for access to justice and said, we don't need this.

292
00:23:20,685 --> 00:23:27,673
So the $106 million shortfall Durbin is talking about for 2024 is not an accident.

293
00:23:27,891 --> 00:23:36,497
It's a feature of the system that views the public defender as a bug in the code of mass
incarceration.

294
00:23:36,497 --> 00:23:49,315
And so we're sitting here, it's, it's, know, 2026, we're like 63 years after Clarence
Gideon sat in a cell and wrote a petition to the Supreme court in pencil.

295
00:23:49,315 --> 00:23:51,077
Who wouldn't let them have a pen, I guess.

296
00:23:51,077 --> 00:23:56,018
and we're still arguing over whether or not statehood, the state should have to pay for

297
00:23:56,018 --> 00:23:58,386
equal justice it prints on its walls.

298
00:23:59,369 --> 00:24:02,270
No doubt, but Rachel Rossi is still there.

299
00:24:02,310 --> 00:24:05,351
The Office for Access to Justice is open.

300
00:24:05,451 --> 00:24:07,811
The $10 million is on the ledger.

301
00:24:07,971 --> 00:24:08,702
It's a beachhead.

302
00:24:08,702 --> 00:24:16,334
mean, look, don't get me wrong, the other side of the V is getting mowed down like D-Day,
Normandy, or worse, but it's a beachhead.

303
00:24:16,334 --> 00:24:17,344
I don't see it as theater.

304
00:24:17,344 --> 00:24:26,255
I see it as the only tool we have left to present the total, to prevent the total
enzonification, if you will, to butcher that word, of the country.

305
00:24:26,255 --> 00:24:27,280
y'all, it really is.

306
00:24:27,280 --> 00:24:30,893
It's just letters that we're not used to putting in our mouths.

307
00:24:30,893 --> 00:24:32,685
Right, not enough fouls for me.

308
00:24:32,685 --> 00:24:39,660
But you know, look, to prevent the whole system from falling apart, we have to use the
names, the dates, and the dollar amounts to shame the institutions into living up to the

309
00:24:39,660 --> 00:24:42,332
precedents they set for themselves in 1963.

310
00:24:42,332 --> 00:24:46,825
Hugo Black's words have to mean more than the paper they're written on or the whole
project fails.

311
00:24:47,298 --> 00:24:52,698
So, you we did an episode kind of about this, that very concept that you just mentioned,
right?

312
00:24:52,698 --> 00:24:55,918
This whole idea of we have to kind of shame them into it.

313
00:24:55,918 --> 00:24:59,938
And I don't think that they're speaking the same language anymore, right?

314
00:25:00,189 --> 00:25:02,208
We're saying shame, shame, shame, shame.

315
00:25:02,208 --> 00:25:03,549
And they're like, yeah, I don't speak shame.

316
00:25:03,549 --> 00:25:04,469
I had the power to do it.

317
00:25:04,469 --> 00:25:04,889
I did it.

318
00:25:04,889 --> 00:25:05,769
I got rid of it.

319
00:25:05,769 --> 00:25:07,369
And it's gone now.

320
00:25:07,449 --> 00:25:10,449
I think that this project is failing, right?

321
00:25:10,449 --> 00:25:15,805
It's failing at a cost of $106 million a year just in the federal system.

322
00:25:15,845 --> 00:25:24,585
It's failing every time a judge in Oregon or Oklahoma has to let a man go because the
state's just too cheap to follow the constitution.

323
00:25:24,865 --> 00:25:28,385
And then, you know, you have a president who says, look at what they're doing.

324
00:25:28,385 --> 00:25:29,805
Look at what they're doing in our courts.

325
00:25:29,805 --> 00:25:30,925
They're letting criminals free.

326
00:25:30,925 --> 00:25:38,445
And it's just like, yeah, because we can't give them what their rights, like we can't
afford them their own rights.

327
00:25:38,696 --> 00:25:41,076
Not to beat a dead horse.

328
00:25:41,316 --> 00:25:44,891
We just have to stop pretending this is like a lack of resources.

329
00:25:44,891 --> 00:25:51,111
It's a distribution of resources because we have $30 billion for the 94 bill.

330
00:25:51,171 --> 00:25:55,431
We have $220,000 for the FOP to lobby year over year.

331
00:25:55,431 --> 00:26:07,219
We just don't have the will to fund the defense because a strong defense is bad for the
kind of throughput business.

332
00:26:07,249 --> 00:26:08,211
I'll give you throughput.

333
00:26:08,211 --> 00:26:11,455
It is the ultimate metric for a system that's lost its soul.

334
00:26:11,496 --> 00:26:17,065
But I still believe that if we can win in the counties like they did with Herald Herring,
we can force the federal hand.

335
00:26:17,065 --> 00:26:21,110
The pressure has to come from the fact that the current model is literally
unconstitutional.

336
00:26:21,361 --> 00:26:27,656
Since when has unconstitutional actually stopped a budget committee or our president?

337
00:26:27,656 --> 00:26:28,856
But look, I'll give you that.

338
00:26:28,856 --> 00:26:29,638
Fair enough.

339
00:26:29,638 --> 00:26:35,822
Let's look what happens when that budget committee actually meets the adversarial process
head on.

340
00:26:36,764 --> 00:26:38,805
So it's a joke.

341
00:26:38,805 --> 00:26:39,616
It's a bad one.

342
00:26:39,616 --> 00:26:46,402
We talk about the adversarial process like it's this kind of high functioning distribution
system.

343
00:26:46,402 --> 00:26:49,574
But in reality, the state has has already

344
00:26:49,796 --> 00:26:53,308
attacked and overwhelmed the defense.

345
00:26:53,588 --> 00:27:04,271
So if you look at fiscal year 2024 financial services and government, general government
bill, Dick Durbin is up there sounding the alarm because the federal public defender

346
00:27:04,271 --> 00:27:08,113
system is facing this $106 million shortfall, $106 million.

347
00:27:08,113 --> 00:27:17,605
In the federal budget that measures success in trillions, we're watching the Sixth
Amendment go into a tailspin for the price of a couple of fighter jet wings.

348
00:27:18,031 --> 00:27:25,385
It's kind of a systemic failure by design, like every other system that Ronald Reagan has
afforded us to kill.

349
00:27:25,498 --> 00:27:27,798
See, that's where we disagree because I don't think it's by design.

350
00:27:27,798 --> 00:27:29,338
I think it's by neglect.

351
00:27:29,498 --> 00:27:30,658
And there is a difference.

352
00:27:30,658 --> 00:27:37,038
When Merrick Garland reestablished the Office for Access to Justice in October 2023, he
wasn't doing it for the optics.

353
00:27:37,378 --> 00:27:39,878
He put Rachel Rossi in there with a $10 million budget.

354
00:27:39,878 --> 00:27:40,898
Is it enough?

355
00:27:40,898 --> 00:27:41,758
No.

356
00:27:41,778 --> 00:27:44,338
Is it the $106 million that German is looking for?

357
00:27:44,338 --> 00:27:45,738
Not even close.

358
00:27:45,858 --> 00:27:49,478
But it is an institutional realization that the machine is breaking.

359
00:27:49,658 --> 00:27:53,558
You can't have a functional legal system if the defense side of the ledger is permanently
in the red.

360
00:27:53,809 --> 00:27:57,769
Well, I'll say neglect is a very charitable word for an attorney.

361
00:27:59,729 --> 00:28:08,629
When Bill Clinton and Biden pushed the violent crime control and law enforcement act in
94, they didn't neglect the funding.

362
00:28:09,029 --> 00:28:12,069
They dropped $30 billion into the system.

363
00:28:12,069 --> 00:28:13,429
But where to go?

364
00:28:13,569 --> 00:28:17,269
It went to 100,000 new police officers and more prisons.

365
00:28:17,269 --> 00:28:20,189
It didn't go to the Clarence Gideons of the world.

366
00:28:20,189 --> 00:28:23,109
It went to the modern machine of incarceration.

367
00:28:23,461 --> 00:28:34,551
When you pump $30 billion into the input side of the justice system, arrests and
prosecutions, and then you provide a measly million dollars via the 64 Criminal Justice

368
00:28:34,551 --> 00:28:37,914
Act as a starting point, that's not neglect.

369
00:28:37,994 --> 00:28:41,567
You're over provisioning the attack and starving the firewall.

370
00:28:41,818 --> 00:28:45,018
But you have to look at the shifts in how we define that firewall.

371
00:28:45,218 --> 00:28:53,918
So you're going back to 1963, where, we said before, Hugo Black stated that any person
held into court who is too poor to hire a lawyer cannot be assured a fair trial unless

372
00:28:53,918 --> 00:28:55,658
counsel is provided for him.

373
00:28:55,658 --> 00:28:57,598
He called it an obvious truth.

374
00:28:57,818 --> 00:29:01,698
The problem is that for 60 years, we've treated that truth as an unfunded mandate.

375
00:29:01,838 --> 00:29:04,378
But look at the Hurl-Haring settlement in New York.

376
00:29:04,378 --> 00:29:07,478
Hurl-Haring and those other plaintiffs didn't just ask for money.

377
00:29:07,478 --> 00:29:11,218
They forced the state to accept responsibility for the quality of the defense.

378
00:29:11,383 --> 00:29:17,865
That case proved that the state can't just delegate its constitutional duties to the
lowest bidding county and walk away.

379
00:29:18,680 --> 00:29:20,180
And yet they still do.

380
00:29:21,141 --> 00:29:25,202
The government accountability office report from May of 2023.

381
00:29:25,202 --> 00:29:34,566
So the GAO looked at the the burn JAG funding, which is the primary provider of federal
criminal justice money to the states for the audience.

382
00:29:34,566 --> 00:29:38,788
And look, the difference is nauseating.

383
00:29:38,788 --> 00:29:46,120
The money is used for, quote, law enforcement programs, which we all know is code for
tanks and

384
00:29:46,155 --> 00:29:49,515
Kevlar vests and more people being arrested.

385
00:29:49,735 --> 00:29:52,435
The defense kind of gets the scraps.

386
00:29:52,686 --> 00:30:00,166
Meanwhile, the National District Attorney's Association spent 1.12 million in lobbying in
2023 alone.

387
00:30:00,666 --> 00:30:07,706
Again, the RICO organization, Fraternal Order of Police, put up another $220,000.

388
00:30:07,926 --> 00:30:10,666
But who is actually lobbying for the poor?

389
00:30:11,479 --> 00:30:19,709
Who is spending a million dollars to make sure that this adversarial process actually
involves two sides and not just the one?

390
00:30:20,254 --> 00:30:23,896
The who is the problem, but the how is changing.

391
00:30:23,896 --> 00:30:31,340
Rachel Rossi's expansion of the Office for Access to Justice is literally designed to
address those burn-jag disparities.

392
00:30:31,500 --> 00:30:33,641
They're finally looking at the data you're citing.

393
00:30:33,641 --> 00:30:40,885
The DOJ is actually internalizing the fact that when the defense system collapses, like we
saw in Oregon, the whole system stops.

394
00:30:41,145 --> 00:30:45,288
Nzany sat in a jail for months because Oregon simply didn't have a lawyer to give him.

395
00:30:45,288 --> 00:30:48,269
A federal judge eventually had to order releases.

396
00:30:48,309 --> 00:30:50,156
That is a constitutional crisis.

397
00:30:50,156 --> 00:30:53,571
that even the most hardline law and order politician wants to avoid.

398
00:30:53,571 --> 00:30:56,656
Because it results in people the state wants to keep locked up, walking free.

399
00:30:56,656 --> 00:30:59,159
So I even the system has even failed on their side.

400
00:30:59,180 --> 00:31:06,310
They want to hide this high throughput pipeline to the prisons, but they can't even get
the people to the prisons because they can't get them to trial.

401
00:31:06,561 --> 00:31:11,145
Yeah, I mean, it's kind of like the fail open state, right?

402
00:31:11,145 --> 00:31:20,261
In my world, if the security system fails, right, you decide if it fails closed, which
keeps everybody out, or it fails open, basically letting everyone in.

403
00:31:20,452 --> 00:31:26,156
So the justice system is failing open because it's too cheap to pay for the guards at the
gate.

404
00:31:26,897 --> 00:31:30,431
But I just want to make sure that we're clear and we're honest about why, right?

405
00:31:30,431 --> 00:31:32,562
So Jeff Sessions didn't close

406
00:31:32,614 --> 00:31:37,974
the Office for Access to Justice in 2017 because it was inefficient.

407
00:31:38,134 --> 00:31:45,394
He closed it because he didn't believe the state should be in the business of helping
people defend themselves against the state.

408
00:31:46,194 --> 00:31:52,814
So it was it was an ideological shutdown of a critical infrastructure component.

409
00:31:52,814 --> 00:31:59,694
When you delete the access to justice, you're telling the public that the adversarial
process is a luxury.

410
00:31:59,694 --> 00:32:02,210
It's a service that you have to pay for.

411
00:32:02,210 --> 00:32:03,597
not really a right.

412
00:32:03,931 --> 00:32:09,131
Breaking news everybody, an official in the Trump administration doesn't believe in the
Bill of Rights.

413
00:32:09,271 --> 00:32:10,491
What do know?

414
00:32:10,491 --> 00:32:15,671
mean, look, thankfully, thankfully, Sessions was an outlier in the history of that office.

415
00:32:15,711 --> 00:32:24,871
The fact that it was reestablished and expanded with a $10 million appropriation proves
that the institutional memory of the DOJ still values the Criminal Justice Act's intent.

416
00:32:25,091 --> 00:32:31,302
Even if you look back at the 2013 sequestration under Barack Obama, where $52 million was
slashed from public defense,

417
00:32:31,302 --> 00:32:34,915
That wasn't a targeted strike, that was the meat acts of the federal budget.

418
00:32:34,915 --> 00:32:37,557
The tragedy wasn't the intent, it was the impact.

419
00:32:37,558 --> 00:32:40,050
It forced federal defenders to take unpaid leave while the U.S.

420
00:32:40,050 --> 00:32:43,743
Attorney's offices, through different streams, kept humming along.

421
00:32:44,142 --> 00:32:54,766
Every time I hear Barack Obama, I always think of the David Pakman soundboard where he has
Trump going, Obama, Obama.

422
00:32:54,766 --> 00:32:56,907
No, I mean, I agree.

423
00:32:56,907 --> 00:33:06,631
think that the modern machine, The prosecution is a high availability, multi-region
service with redundant power supplies.

424
00:33:06,631 --> 00:33:10,022
And the public defender is like a weird, you know,

425
00:33:10,106 --> 00:33:15,958
home server in a basement with a leaking pipe on the top of it and the air conditioner
barely works.

426
00:33:16,199 --> 00:33:28,254
When that 2013 sequestration hit, the US attorneys didn't have to furlough their staff at
the same rate because they have access to asset forfeiture funds and other off book

427
00:33:28,254 --> 00:33:34,426
revenue, which is an increasing problem in our country at both a local and a national
level.

428
00:33:34,747 --> 00:33:38,668
The public defenders are basically dependent upon the whims of Congress.

429
00:33:38,876 --> 00:33:42,517
and that is being fed steak by the NDAA.

430
00:33:42,998 --> 00:33:54,219
You can't tell me the justice system is kind of reforming from inside when the budget for
the prosecution is functionally infinite and the defense has to beg Dick Durbin for 106

431
00:33:54,219 --> 00:33:57,239
million just to keep the lights on in 2024.

432
00:33:58,120 --> 00:34:00,720
You're not going to hear me arguing that it's a fair fight.

433
00:34:00,760 --> 00:34:06,460
It's never been a fair fight, but I'm saying the fight is being recognized as essential to
the system's own survival.

434
00:34:06,660 --> 00:34:14,120
When Rachel Rossi goes to these counties and says, we're monitoring your burn jag
spending, she's using the leverage of the federal government to fix the local Anzani

435
00:34:14,120 --> 00:34:15,080
problem.

436
00:34:15,600 --> 00:34:21,600
The $10 million for the office for access to justice isn't just for salaries, it's for
policy pressure.

437
00:34:21,700 --> 00:34:27,320
If the Fraternal Order of Police is spending $220,000 to lobby for more tech for police,

438
00:34:27,324 --> 00:34:35,441
The Office for Access to Justice is the only entity inside the building saying, hold on,
if you buy that surveillance tech, you have to fund the legal experts who can challenge

439
00:34:35,441 --> 00:34:36,844
its validity in court.

440
00:34:37,331 --> 00:34:39,191
they don't.

441
00:34:39,191 --> 00:34:41,031
They don't actually do that.

442
00:34:41,051 --> 00:34:42,171
And that's the point, right?

443
00:34:42,171 --> 00:34:51,871
Like we've just reached the, right in the FAFO stage, we've reached the FA and we have to
bear the brunt of the FO.

444
00:34:52,651 --> 00:34:54,531
And that's kind of the point.

445
00:34:54,531 --> 00:35:04,891
They take the tech and they leave the defense in 63 and look at the dollar amounts again,
30 billion in 94 for the tough on crime infrastructure.

446
00:35:04,951 --> 00:35:07,471
And we're still paying interest on that debt.

447
00:35:07,474 --> 00:35:10,274
not just financial interest, but social interest.

448
00:35:10,274 --> 00:35:16,534
We built this machine that's optimized for one thing, the plea bargain, which we talked
about earlier, being a plea system.

449
00:35:16,754 --> 00:35:19,514
97 % of federal cases end in a plea.

450
00:35:19,814 --> 00:35:21,694
And why do you think that is?

451
00:35:21,734 --> 00:35:31,934
Because when you have a $106 million shortfall in the defense budget, you don't, different
defense budget, because we have way more than that in the actual country defense budget,

452
00:35:31,934 --> 00:35:33,614
you don't really have time for a trial, right?

453
00:35:33,614 --> 00:35:35,534
Like you don't have time for an attorney.

454
00:35:35,534 --> 00:35:36,854
I mean, you're,

455
00:35:37,238 --> 00:35:38,339
a practicing attorney.

456
00:35:38,339 --> 00:35:41,321
have, you know exactly how this works, right?

457
00:35:41,321 --> 00:35:51,509
I mean, they, they literally five minutes, they decide on the plea and say, we'll do what
we can to get, get it down as a, you know, the punishment as low as possible.

458
00:35:52,350 --> 00:35:54,011
And they don't have time to investigate.

459
00:35:54,011 --> 00:36:02,357
They really barely have time to read the name of the client, take the deal, or they'll
send you to federal life, you know, the federal maximum, right?

460
00:36:02,357 --> 00:36:04,032
The modern machine.

461
00:36:04,032 --> 00:36:08,638
is just a plea bargain factory fueled by the poverty of the defense.

462
00:36:09,229 --> 00:36:11,741
Right, I mean, that's the status quo for sure.

463
00:36:11,741 --> 00:36:15,583
The plea bargaining rate is a symptom of the caseload crisis, I agree.

464
00:36:15,584 --> 00:36:18,085
But again, look at the Herald-Haring case.

465
00:36:18,105 --> 00:36:22,208
The settlement there didn't just throw money at the problem, it mandated caseload caps.

466
00:36:22,208 --> 00:36:26,112
Now, just because they're not being followed doesn't mean they're not on the books as a
requirement, right?

467
00:36:26,112 --> 00:36:30,936
The case acknowledged that a lawyer with 400 felony files isn't a lawyer, they're a
processor.

468
00:36:30,996 --> 00:36:33,578
That's a legal victory based on the Sixth Amendment.

469
00:36:33,578 --> 00:36:35,531
If we can move that from New York

470
00:36:35,531 --> 00:36:44,671
from the New York State Settlement to a federal standard, which is exactly what the Office
for Justice, Office for Access to Justice, I'm just gonna start calling it the OAJ, is

471
00:36:44,671 --> 00:36:46,851
trying to do with their new initiatives.

472
00:36:47,031 --> 00:36:48,871
Then we change the throughput you're so angry about.

473
00:36:48,871 --> 00:36:52,011
We force the system to slow down to the speed of justice.

474
00:36:52,149 --> 00:36:53,969
Don't you call me angry.

475
00:36:55,749 --> 00:36:59,829
I think, mean, I think, I think slowing down is, a bug for them, not a feature, right?

476
00:36:59,829 --> 00:37:09,089
Um, I think in, 2013, when that like 52 million was actually cut, the courts didn't
actually slow down.

477
00:37:09,089 --> 00:37:11,609
They just squeezed the defenders harder.

478
00:37:12,129 --> 00:37:20,709
So I hear you, I hear you when you say mandates and caps, but in the real world where I'm
going to try the whole name.

479
00:37:20,960 --> 00:37:27,481
Nyaamidzun Nzana is sitting in a cell in Oregon without a name on his file.

480
00:37:27,481 --> 00:37:28,841
The mandate is gone.

481
00:37:28,841 --> 00:37:30,641
It's just a ghost.

482
00:37:31,181 --> 00:37:43,621
The 2023 GAO report found that states aren't even tracking how much of the burn jag money
goes to indigent defense because the amount is so negligible, it doesn't really trigger

483
00:37:43,621 --> 00:37:45,261
reporting requirements.

484
00:37:45,461 --> 00:37:46,181
We're talking about

485
00:37:46,181 --> 00:37:52,821
Billions in federal flow and and the defense portion is a rounding error that the geo gao
can't even find

486
00:37:53,318 --> 00:38:01,098
which is why the GAO report 23105345 is so revolutionary.

487
00:38:01,218 --> 00:38:05,758
For the first time, we have a federal watchdog pointing at the modern machine and saying,
this is broken.

488
00:38:06,058 --> 00:38:10,398
You use these dates and numbers to show the horror, but I use them to show the awakening.

489
00:38:10,538 --> 00:38:12,978
Before 2023, we didn't even have the report.

490
00:38:13,318 --> 00:38:15,998
Before 2021, you didn't have the OAJ.

491
00:38:15,998 --> 00:38:23,218
We had the vacuum left by Jeff Sessions, but we're building on the data set required to
make the internal reform possible.

492
00:38:23,299 --> 00:38:27,465
You can't fix a system you haven't audited and we're finally auditing the inequality.

493
00:38:27,716 --> 00:38:41,116
I have said this more times than I care to in the recent days looking at the news, but if
you have an audit without an enforcement mechanism, it's just a list of complaints.

494
00:38:41,856 --> 00:38:44,536
And we've had this list since 1963.

495
00:38:44,536 --> 00:38:48,616
mean, Hugo Black told us what the obvious truth was.

496
00:38:48,896 --> 00:38:55,636
LBJ gave us the Criminal Justice Act in 64 and a million dollars, and 60 years later,
we're 106 million short.

497
00:38:55,810 --> 00:39:03,246
while the NDAA spends over a million dollars a year to make sure their side stays fat and
happy.

498
00:39:03,706 --> 00:39:10,172
So if the modern machine wanted to be fixed, it would have been fixed when the 1994 bill
was being written.

499
00:39:10,172 --> 00:39:15,826
Instead, Biden and Clinton chose to build more cages, more prisons.

500
00:39:16,345 --> 00:39:16,725
Right.

501
00:39:16,725 --> 00:39:19,245
So we know the act doesn't have teeth.

502
00:39:19,425 --> 00:39:21,805
But the answer is not to kill the patient, right?

503
00:39:21,805 --> 00:39:25,365
mean, you look in their mouth and you say, hey, we're going to replace this with a full
set.

504
00:39:26,045 --> 00:39:32,285
You know, don't say it's that or we're just going to turn up the laughing gas until you're
not a problem anymore.

505
00:39:33,065 --> 00:39:39,085
mean, the people writing the bills now aren't the same people from 94.

506
00:39:39,285 --> 00:39:44,645
Dick Durbin is pushing for the 106 million because he knows that the federal defender
system is the gold standard.

507
00:39:44,645 --> 00:39:46,025
And if it collapses,

508
00:39:46,042 --> 00:39:47,723
There's no hope for the states.

509
00:39:47,903 --> 00:39:51,485
There is a generational shift in the understanding of what safety means.

510
00:39:51,486 --> 00:39:57,570
We're seeing that you can't have a safe society if the justice system is perceived rightly
as a pay to play racket.

511
00:39:57,590 --> 00:40:00,512
The $10 million from Rossi's office is a seed.

512
00:40:00,512 --> 00:40:07,857
It's the first time since the 1960s that the DOJ has had a dedicated permanent wing to
advocate for the other side of the courtroom.

513
00:40:08,472 --> 00:40:09,878
Yeah, I-I-

514
00:40:10,129 --> 00:40:17,606
permanent wing that Jeff Sessions deleted with a memo, right, like an email.

515
00:40:18,027 --> 00:40:22,010
And that's kind of the fragility of internal reform.

516
00:40:22,311 --> 00:40:24,082
It's a soft fix, right?

517
00:40:24,082 --> 00:40:30,117
Like it's a configuration file that can be overwritten by the next admin who wants to look
tough on crime.

518
00:40:30,338 --> 00:40:34,742
And so what I'm talking about is hard infrastructure.

519
00:40:34,742 --> 00:40:36,613
If you want a real

520
00:40:36,613 --> 00:40:37,884
adversarial process.

521
00:40:37,884 --> 00:40:40,565
You don't make the defense budget a line item.

522
00:40:41,166 --> 00:40:43,728
You tie it to the prosecution's budget.

523
00:40:43,728 --> 00:40:54,135
For every dollar the NDAA lobbies for, for every dollar the FOP gets for law enforcement,
a dollar must by law go to the public defender.

524
00:40:54,135 --> 00:40:57,183
If you want $30 billion for a crime bill, fine.

525
00:40:57,183 --> 00:40:59,539
$15 billion goes to the defense.

526
00:40:59,839 --> 00:41:04,012
And that, in my opinion, is the only way to truly stop the modern machine.

527
00:41:04,878 --> 00:41:11,291
I look, I love the idea of a one-to-one parity mandate, but that would be the most radical
piece of legal reform since the Bill of Rights.

528
00:41:11,291 --> 00:41:12,851
I mean, I love the logic of it.

529
00:41:12,851 --> 00:41:16,453
It treats the Sixth Amendment like a thermodynamic law.

530
00:41:16,453 --> 00:41:19,794
You can't add energy to one side of the system without equalizing the other.

531
00:41:19,794 --> 00:41:22,595
But until we get there, we have to work with the tools we have.

532
00:41:22,595 --> 00:41:26,136
We have to use the Enzana ruling to show the cost of failure.

533
00:41:26,136 --> 00:41:29,778
We have to use the GAO report to shame the burn jag administrators.

534
00:41:29,778 --> 00:41:33,639
We have to make the $106 million shortfall a political liability

535
00:41:33,639 --> 00:41:35,927
for anyone who claims to care about the Constitution.

536
00:41:36,178 --> 00:41:38,990
Yeah, but it's only a liability if people actually know about it.

537
00:41:38,990 --> 00:41:42,021
And that's that's what we're struggling with all the all around the board now.

538
00:41:42,021 --> 00:41:42,261
Right.

539
00:41:42,261 --> 00:41:52,278
Like is that everything is happening so fast that nobody nobody knows unless they're
they're tuned in to that particular station or that particular object or that particular

540
00:41:52,278 --> 00:41:58,862
source of truth that these things are happening underneath the blanket.

541
00:41:58,862 --> 00:41:59,243
Right.

542
00:41:59,243 --> 00:42:00,884
This machine

543
00:42:01,656 --> 00:42:06,278
of our current court system is really good at hiding the actual costs, right?

544
00:42:06,278 --> 00:42:11,420
It hides the $52 million sequestration impact in administrative adjustments.

545
00:42:11,420 --> 00:42:17,863
It hides the $30 billion legacy of the 94 Bill, right, in public safety grants.

546
00:42:18,204 --> 00:42:26,128
They want us to think of justice as this abstract philosophical concept from Hugo Black's
1963 brain.

547
00:42:26,128 --> 00:42:27,907
I want to think of it as a budget.

548
00:42:27,907 --> 00:42:34,611
as a series of checks written to the NDAA while the Public Defender's Office is literally
falling apart.

549
00:42:35,352 --> 00:42:37,823
And that Joshua is where we overlap.

550
00:42:38,023 --> 00:42:42,575
Hey, it's the name of the podcast.

551
00:42:42,575 --> 00:42:42,966
right.

552
00:42:42,966 --> 00:42:46,587
The philosophy of justice is meaningless without the plumbing to deliver it.

553
00:42:46,587 --> 00:42:54,790
Whether it's your one-to-one parity mandate, which I love, or my incremental institutional
build out through Rachel Rossi and the OHA, the goal is the same.

554
00:42:54,790 --> 00:43:01,336
Make sure that equal justice under law isn't just a 50 cent stencil on the front of a
multi-billion dollar courthouse.

555
00:43:01,336 --> 00:43:03,293
that only one side can afford to enter.

556
00:43:03,544 --> 00:43:07,934
Yeah, I mean 50 cents for the stencil, $106 million for the lawyers.

557
00:43:07,934 --> 00:43:19,408
We're getting there, slowly, but the enzonification of the country is moving a lot faster
than the $10 million budget of the Office for Access to Justice, which essentially puts a

558
00:43:19,408 --> 00:43:21,410
Ferrari against a tricycle.

559
00:43:21,895 --> 00:43:30,315
we better start peddling then because the alternative is 1963 all over again and Clarence
Earl Gideon shouldn't have to keep winning his case every single year.

560
00:43:30,566 --> 00:43:30,926
Yeah.

561
00:43:30,926 --> 00:43:34,886
I mean, you talk about pedaling, but the bike doesn't really have a chain, right?

562
00:43:34,886 --> 00:43:37,146
You're trying, you're trying to ride a frame.

563
00:43:37,506 --> 00:43:45,526
Um, let's, let, let, let's look at, at Leo hurl herring, right?

564
00:43:45,526 --> 00:43:46,805
This isn't ancient history.

565
00:43:46,805 --> 00:43:51,666
This is 2010 in New York, which was only what 16 years ago.

566
00:43:51,666 --> 00:44:00,526
Uh, um, and that was that case for the, the legal heads is the hurl herring V state in New
York, 15, uh, NY three D eight.

567
00:44:00,854 --> 00:44:12,001
Leo was the the lead plaintiff in a clash action lawsuit because the system That will
would like to see reformed From within was essentially a ghost right he had a key had

568
00:44:12,001 --> 00:44:24,749
countless others in five New York counties anon on on on dogga Ontario Shuler Suffolk and
Washington counties That were being processed like raw data through a broken pipeline,

569
00:44:24,749 --> 00:44:25,469
right?

570
00:44:25,485 --> 00:44:35,485
No counsel at arraignment, no investigation, just a fast track to a plea or a sell because
the state decided indigent defense was a line item.

571
00:44:35,485 --> 00:44:37,957
They just could, I don't know, skip.

572
00:44:38,914 --> 00:44:41,895
And that is exactly what the legal framework saved the day.

573
00:44:41,895 --> 00:44:49,219
It took years, yes, and the frustration is justified, but the Hurl-Haring settlement
forced the state of New York to finally take responsibility.

574
00:44:49,219 --> 00:44:51,660
They couldn't pass the buck to the counties anymore.

575
00:44:51,660 --> 00:44:52,957
It mandated caseload caps.

576
00:44:52,957 --> 00:44:55,663
It mandated that every single one has a lawyer at their first appearance.

577
00:44:55,663 --> 00:44:58,004
That didn't happen because of riot or total collapse.

578
00:44:58,004 --> 00:45:03,587
It happened because the New York Civil Liberties Union used the courts to hold the state
to its own constitutional promise.

579
00:45:03,838 --> 00:45:11,298
It happened because the state got caught red-handed violating the basic service level
agreement of the constitution.

580
00:45:11,318 --> 00:45:12,078
Yeah.

581
00:45:12,078 --> 00:45:14,858
But, but look at the cost of the, of the reform, right?

582
00:45:14,858 --> 00:45:22,978
How many people spent months in Suffolk County jails because their lawyer was a name on a
piece of paper that they had never met.

583
00:45:23,058 --> 00:45:23,538
Right.

584
00:45:23,538 --> 00:45:29,978
In, in my world, if you have a 0 % uptime on a court, a core service, right.

585
00:45:29,978 --> 00:45:32,878
I don't get to say, well, we're working on a settlement.

586
00:45:32,878 --> 00:45:34,098
I would get fired.

587
00:45:34,098 --> 00:45:37,379
because that system is actively in failure.

588
00:45:37,619 --> 00:45:41,780
But in the justice system, the failure is the product.

589
00:45:42,380 --> 00:45:51,262
You mentioned earlier the court holding the state to its promises, but the state has a $30
billion incentive to keep the machine running.

590
00:45:51,722 --> 00:45:55,183
That's the 1994 crime bill legacy, right?

591
00:45:55,183 --> 00:46:02,779
Clinton and Biden didn't just fund the police, they funded a specific type of
institutional momentum.

592
00:46:02,779 --> 00:46:05,058
that defense can't keep up with.

593
00:46:05,309 --> 00:46:07,360
Look, 1994 bill was a blunt instrument.

594
00:46:07,360 --> 00:46:08,691
I'll grant you that.

595
00:46:08,871 --> 00:46:12,433
It was a reaction to specific fears of a specific era.

596
00:46:12,434 --> 00:46:14,655
But again, we aren't in 1994 anymore.

597
00:46:14,655 --> 00:46:15,796
We have the data now.

598
00:46:15,796 --> 00:46:21,861
We have the GAO report explicitly outlining the disparities in how Bernie Jaguars funding
is used.

599
00:46:21,861 --> 00:46:28,885
We're finally seeing the federal government admit that if you only fund the sword of
prosecution and the police, the shield of the defense withers away.

600
00:46:28,906 --> 00:46:34,169
And that's why reestablishment of the office for OAJ is a massive win.

601
00:46:34,689 --> 00:46:37,301
Um, Mary Garland didn't just bring it back.

602
00:46:37,301 --> 00:46:38,671
He expanded it.

603
00:46:38,812 --> 00:46:40,333
Rachel Rossi is at the helm.

604
00:46:40,333 --> 00:46:41,794
There isn't just a placeholder.

605
00:46:41,794 --> 00:46:42,884
That's not just a placeholder.

606
00:46:42,884 --> 00:46:47,617
It's a $10 million strike team designed to fix exactly what you're complaining about.

607
00:46:47,868 --> 00:46:50,629
$10 million.

608
00:46:50,629 --> 00:46:52,590
10 million.

609
00:46:52,841 --> 00:47:00,385
The National District Attorneys Association spent over 1.1 million just on lobbying last
year.

610
00:47:00,385 --> 00:47:02,787
And you can see the open secrets lobbying data.

611
00:47:02,787 --> 00:47:03,988
I keep saying Rico.

612
00:47:03,988 --> 00:47:09,870
I think the Fraternal Order of Police is literally a mob of unethical people.

613
00:47:09,870 --> 00:47:11,471
But the Fraternal Order of Peace

614
00:47:11,471 --> 00:47:17,251
Police spent again at 220,000 advocating specifically for those JAG grants.

615
00:47:17,251 --> 00:47:20,851
And you can again look up open secrets under the lobbying records.

616
00:47:21,102 --> 00:47:33,382
10 million in office is not going to counterbalance a multi-billion dollar enforcement
industry, right?

617
00:47:33,442 --> 00:47:35,142
It's a bake sale.

618
00:47:35,142 --> 00:47:39,522
Jeff Sessions killed in 2017 with a single memo.

619
00:47:40,499 --> 00:47:44,454
He didn't need floor debate, he didn't need that report, he just turned off the lights.

620
00:47:44,454 --> 00:47:49,578
If a system is that easy to dismantle, that's not really an institution.

621
00:47:50,300 --> 00:47:52,191
It's a temporary permit.

622
00:47:52,562 --> 00:47:54,462
But keep in mind that was 2017, right?

623
00:47:54,462 --> 00:47:56,442
We're not in 2017 anymore either.

624
00:47:56,442 --> 00:48:00,182
And the fact is Dick Durbin could have done the same thing, except they didn't.

625
00:48:00,182 --> 00:48:02,742
And the question is why and what do we do with that?

626
00:48:02,742 --> 00:48:10,422
But it was dismantled under sessions because the, uh, the OHA lacked the statutory
permanence we're fighting for now.

627
00:48:10,422 --> 00:48:11,662
That's the work.

628
00:48:11,662 --> 00:48:15,562
It's slow, it's agonizing, but it's how you build things that last.

629
00:48:15,602 --> 00:48:16,902
You mentioned the money and you're right.

630
00:48:16,902 --> 00:48:20,482
The scale is tilted, but look at the Enzana case in Oregon.

631
00:48:20,699 --> 00:48:21,068
Mr.

632
00:48:21,068 --> 00:48:26,906
Inzana, I'm not brave enough to try his full name, was a real person sitting in a real
jail cell for months without an attorney.

633
00:48:26,906 --> 00:48:27,276
Why?

634
00:48:27,276 --> 00:48:31,391
Because Oregon's public defense system hit a hard failure point.

635
00:48:31,391 --> 00:48:32,792
It literally ran out of lawyers.

636
00:48:32,792 --> 00:48:33,383
And what happened?

637
00:48:33,383 --> 00:48:34,944
A federal judge stepped in.

638
00:48:35,109 --> 00:48:36,352
Judge McShane.

639
00:48:36,472 --> 00:48:37,042
Exactly.

640
00:48:37,042 --> 00:48:39,044
And he ordered the release of the defendants.

641
00:48:39,044 --> 00:48:44,067
He said, if you cannot provide the constitutional minimum, you cannot hold these people.

642
00:48:44,227 --> 00:48:46,409
That is the institution correcting itself.

643
00:48:46,409 --> 00:48:48,691
It's the failsafe kicking in.

644
00:48:48,691 --> 00:48:52,653
When the state fails to fund the Sixth Amendment, the state loses its power to prosecute.

645
00:48:52,692 --> 00:48:54,324
That is a powerful level.

646
00:48:54,995 --> 00:49:07,372
It's a lever that only gets pulled when the situation is so catastrophic it hits the news
So Inzana should not have been in that position to begin with right like he's he's already

647
00:49:07,372 --> 00:49:18,208
a low-income man in a state that prides itself on being progressive But he was languishing
in a cell because of a shortage like we don't have a shortage of prosecutors We don't have

648
00:49:18,208 --> 00:49:20,129
a shortage of police officers.

649
00:49:20,129 --> 00:49:22,725
Well My area of the country certainly does

650
00:49:22,725 --> 00:49:24,415
or at least they think they do.

651
00:49:25,176 --> 00:49:30,018
We have a $106 million shortfall in the federal public defender budget.

652
00:49:30,838 --> 00:49:38,235
Dick Durbin is on the Senate floor warning about it, but the money is being eaten by the
sequestration ghost of 2013.

653
00:49:38,241 --> 00:49:42,073
We lost $52 million back then, and we really never got it back, right?

654
00:49:42,073 --> 00:49:52,667
Like it's a controlled demolition of the defense, and that's part of the slow creeping
that I keep feeling every time I hear it's a slow, painful process.

655
00:49:52,667 --> 00:49:57,570
because there's people that get really crushed under the weight of these things.

656
00:49:58,236 --> 00:50:04,356
But I point back to the fact that it's not a demolition as long as Rachel Rossi and Dick
Durbin are fighting to restore it.

657
00:50:04,356 --> 00:50:12,996
I they're like the person chained up to the building, know, the old building that they're
not willing to let be blown to pieces, which is, know, it's not a guarantee that it won't

658
00:50:12,996 --> 00:50:14,795
be blown to pieces, but it's something.

659
00:50:15,316 --> 00:50:23,456
The $106 million is a massive hurdle, although it seems shameful to say that given our
current budget, but it's a visible one, right?

660
00:50:23,456 --> 00:50:26,196
In 1963, before Gideon versus Wainwright,

661
00:50:26,204 --> 00:50:30,606
Clarence Earl Gideon was just a man with an eighth grade education in a Florida prison.

662
00:50:30,706 --> 00:50:33,207
He was charged with breaking and entering a pool room.

663
00:50:33,207 --> 00:50:36,989
He asked for a lawyer and the judge told him no because he wasn't facing the death
penalty.

664
00:50:37,049 --> 00:50:38,940
Gideon didn't have a $10 million office.

665
00:50:38,940 --> 00:50:40,551
He didn't have a GAO report.

666
00:50:40,551 --> 00:50:43,042
He had a pencil and a piece of prison stationery.

667
00:50:43,982 --> 00:50:48,024
And he Hugo Black, who was basically just tired of the state of Florida's bullshit.

668
00:50:48,024 --> 00:50:51,887
But let's look at the reality of Gideon, okay?

669
00:50:51,887 --> 00:50:54,611
He was a working class guy, a drifter.

670
00:50:54,611 --> 00:50:59,524
I think there was a different word that we would have used back then, a tramp, right?

671
00:50:59,524 --> 00:51:00,526
He was a tramp.

672
00:51:00,526 --> 00:51:03,888
He was the kind of the humanity of it all.

673
00:51:03,888 --> 00:51:06,211
And honestly, that's what I get angry about, right?

674
00:51:06,211 --> 00:51:07,115
He won.

675
00:51:07,115 --> 00:51:11,037
He won the right for every indigent person to have an attorney.

676
00:51:11,178 --> 00:51:20,743
But 60 years later, we have Niamidzun Niazana, we have Leo Hurl-Haring, we have a $106
million hole.

677
00:51:21,024 --> 00:51:27,688
What did Gideon actually win if the state can just underfund the right into non-existence?

678
00:51:27,688 --> 00:51:33,531
It's like being granted the right to breathe, but only if you can afford an oxygen tank
from a state-approved vendor.

679
00:51:33,782 --> 00:51:37,075
Well, what he won was the legal standing to fight back.

680
00:51:37,075 --> 00:51:39,816
Without Gideon, Earl Herring doesn't have a case.

681
00:51:39,817 --> 00:51:43,459
Without Gideon, Judge McShane doesn't have the authority to release Inzana.

682
00:51:43,520 --> 00:51:48,544
You're looking at the plumbing and saying it's clogged, and you're right, it's filthy, but
I'm looking at the blueprint.

683
00:51:48,544 --> 00:51:51,025
The blueprint says the water must flow.

684
00:51:51,146 --> 00:51:54,449
My job and the job of the OAJ is to fix the pipes.

685
00:51:54,449 --> 00:51:55,669
Fix the pipes.

686
00:51:55,890 --> 00:51:59,142
Your anger is the pressure that makes the repairs urgent, but we need both.

687
00:51:59,393 --> 00:52:02,214
Now I don't want to just fix the pipes.

688
00:52:02,214 --> 00:52:14,476
I want to know why the National District Attorneys Association gets $1.12 million to lobby
for more clogging, while the Public Defender's Office has to beg for scraps from the CJA.

689
00:52:14,837 --> 00:52:17,797
LBJ signed that in 1964, right?

690
00:52:17,797 --> 00:52:19,598
He put a million into it.

691
00:52:19,598 --> 00:52:21,858
That was 1964 money.

692
00:52:21,858 --> 00:52:24,639
Today we're looking at $106 million deficit.

693
00:52:24,639 --> 00:52:25,780
We're moving backwards.

694
00:52:25,780 --> 00:52:27,150
But the blueprint

695
00:52:27,876 --> 00:52:28,456
Sure.

696
00:52:28,456 --> 00:52:28,916
Okay.

697
00:52:28,916 --> 00:52:30,007
So the blueprint solid.

698
00:52:30,007 --> 00:52:30,807
Let's say it's solid.

699
00:52:30,807 --> 00:52:35,129
The blueprint is being rewritten in real time by dollar amounts.

700
00:52:35,129 --> 00:52:42,782
If you have $30 billion for the 1994 bill and 10 million for the OHA, the blueprint isn't
really what you think it is, right?

701
00:52:42,782 --> 00:52:47,184
Like it's a map of a fortress and the defense is stuck in the moat.

702
00:52:48,071 --> 00:52:56,879
Let's call it like it is or like cousin Eddie called it the shitter is full no doubt But
but the mode is where the battle is and look at the GAO report It's the first time we've

703
00:52:56,879 --> 00:53:04,516
seen such a clear-eyed federal critique of the burn jag programs in equity and it's the
government's own publication Right that report didn't happen by accident.

704
00:53:04,516 --> 00:53:13,363
It happened because of internal pressure from people who actually believe in the Sixth
Amendment They're using the bureaucracies own tools to show the rot when you show the rot

705
00:53:13,363 --> 00:53:15,875
to the GAO It becomes a matter of public record

706
00:53:15,921 --> 00:53:18,871
becomes something a senator can't ignore during a budget hearing.

707
00:53:19,828 --> 00:53:21,449
But they do ignore it every day.

708
00:53:21,449 --> 00:53:24,852
mean, especially this administration, right?

709
00:53:24,852 --> 00:53:28,374
Jeff Sessions ignored the entire concept of the office.

710
00:53:28,475 --> 00:53:29,875
He deleted it.

711
00:53:30,857 --> 00:53:33,979
Now the closure of the OAJ wasn't a budget necessity.

712
00:53:33,979 --> 00:53:35,490
It was kind of an ideological statement.

713
00:53:35,490 --> 00:53:36,921
I think we all know that.

714
00:53:37,382 --> 00:53:43,366
It said, look, we don't believe this side of the table deserves a seat at the DOJ.

715
00:53:43,427 --> 00:53:48,543
And I think that that mentality persists very much so in this current administration.

716
00:53:48,543 --> 00:53:55,118
in the way we fund the courts, it's in the way we prioritize public safety grants that
only go to one side of the V.

717
00:53:55,959 --> 00:53:58,951
But see, again, that's why the reestablishment matters so much.

718
00:53:58,951 --> 00:54:01,774
It's a rejection of the Sessions memo, right?

719
00:54:01,774 --> 00:54:04,326
Sessions wrote it, he shut it down, he had the power at the time.

720
00:54:04,326 --> 00:54:09,501
Now, even now in the same administration that's come back around, we have Rossi still
there.

721
00:54:09,501 --> 00:54:15,925
Mayor Garland has basically said when he reestablished the OHA that the Department of
Justice is not the Department of Prosecution.

722
00:54:16,086 --> 00:54:21,552
It's a return to the Hugo Black vision, that equal justice under law isn't just a slogan
for the wealthy.

723
00:54:21,552 --> 00:54:22,323
Is it enough?

724
00:54:22,323 --> 00:54:24,224
No, we've established that.

725
00:54:24,224 --> 00:54:27,554
Is $10 million a drop in the bucket compared to $30 million?

726
00:54:27,554 --> 00:54:29,006
$30 billion, excuse me?

727
00:54:29,006 --> 00:54:30,347
Yes, absolutely.

728
00:54:30,347 --> 00:54:33,149
But it's a drop of ink in a clear glass of water.

729
00:54:33,149 --> 00:54:35,460
It changes the color of the whole conversation.

730
00:54:36,093 --> 00:54:38,733
Yeah, it's a drop of ink in the ocean.

731
00:54:39,713 --> 00:54:51,804
I mean, I see a man who was lucky enough to be part of a class action that actually
worked, but I just, people in rural counties, okay, I live in a rural county, are

732
00:54:51,804 --> 00:55:02,804
currently being represented by a public defender who maybe didn't sleep in 48 hours,
smells like booze and has 150 stacks of files on their desk, right?

733
00:55:02,810 --> 00:55:05,312
It doesn't, it doesn't feel like representation, right?

734
00:55:05,312 --> 00:55:07,042
It's a processing plant.

735
00:55:07,583 --> 00:55:11,407
And I think that a one-to-one parity, right?

736
00:55:11,407 --> 00:55:21,804
If we, if we just spent all of that money that we spend filing reports and finding audits
and all this other stuff and say, look, we're going to put it, all of our resources into

737
00:55:21,804 --> 00:55:25,458
the one-to-one parity law and get that done.

738
00:55:25,458 --> 00:55:26,559
The rest of it won't matter.

739
00:55:26,559 --> 00:55:28,960
We won't need to audit anything going forward.

740
00:55:29,188 --> 00:55:32,970
We just revolutionize, go for the revolution of the entire system.

741
00:55:33,411 --> 00:55:39,575
If we don't say that for every dollar spent on a prosecutor, a dollar must be spent on a
defender, none of it really just matters.

742
00:55:39,575 --> 00:55:41,936
We're performing the idea of a trial.

743
00:55:42,187 --> 00:55:44,578
Parity is the dream, it's the goal.

744
00:55:44,818 --> 00:55:47,159
But until we get there, we use the tools we have.

745
00:55:47,159 --> 00:55:50,440
We use the Nzani ruling to show the cost of failure.

746
00:55:50,440 --> 00:55:53,461
We use the GAO report to shame the administrators.

747
00:55:53,521 --> 00:55:59,283
We make that $106 million shortfall a political liability for anyone who claims to care
about the Constitution.

748
00:55:59,283 --> 00:56:03,845
We don't just complain about the system, we force the system to live up to its own rules.

749
00:56:04,096 --> 00:56:05,797
I'm not just complaining, right?

750
00:56:05,797 --> 00:56:07,357
I'm diagnosing.

751
00:56:07,898 --> 00:56:10,018
This machine is designed to hide these costs.

752
00:56:10,018 --> 00:56:15,651
It hides the $52 million sequestration impact in the administrative adjustments.

753
00:56:15,651 --> 00:56:18,363
It hides the $30 billion in the public safety grants.

754
00:56:18,363 --> 00:56:27,166
They want us to think that justice is just this ephemeral thing that eventually we will
all obtain.

755
00:56:28,007 --> 00:56:33,321
I want it to be thought of as a budget, as a line item, as a...

756
00:56:33,321 --> 00:56:40,564
like a written to the NDAA while the public defender's office is literally falling apart.

757
00:56:41,293 --> 00:56:43,084
And again, that's where we overlap.

758
00:56:43,084 --> 00:56:46,885
The philosophy of justice is meaningless without the pulling to deliver it.

759
00:56:46,946 --> 00:56:51,449
Whether it's your one-to-one parity or my incremental recommendations, the goal is the
same.

760
00:56:51,849 --> 00:56:56,151
We're getting back to that equal justice under the law being more than just a stencil.

761
00:56:56,402 --> 00:57:01,034
Okay, so look, we spent 40 minutes admiring the problem.

762
00:57:01,275 --> 00:57:10,719
Let's talk about the wrecking ball in the blueprint because from where I'm sitting, the
DOJ isn't just neglecting public defense, it's pricing it out of existence.

763
00:57:10,719 --> 00:57:16,521
If you have enough money, if you have enough influence, if you have enough power, you can
have justice.

764
00:57:16,521 --> 00:57:20,662
But if you don't have any of those things, you get lost in the system.

765
00:57:20,883 --> 00:57:24,284
In my world, if you have a system where

766
00:57:24,348 --> 00:57:32,713
Right operations, which are arrests and prosecutions, are infinitely scalable and funded
by the state, but the read operations, the defense, and the constitutional checks are

767
00:57:32,713 --> 00:57:36,155
throttled by a lack of bandwidth, your database crashes.

768
00:57:36,155 --> 00:57:37,066
And that's what we're seeing.

769
00:57:37,066 --> 00:57:44,090
We're seeing a system-wide failure because the DOJ treats the Sixth Amendment like a
nice-to-have feature rather than a core dependency.

770
00:57:45,000 --> 00:57:52,892
I don't disagree that the architecture is broken, Joshua, but I look at it as a legacy
system that needs a massive painful refactor from the inside.

771
00:57:53,132 --> 00:57:58,333
We're talking about the DOJ's Office for Access to Justice, the OAJ.

772
00:57:58,514 --> 00:58:02,275
For years, it was shuttered, a literal ghost department.

773
00:58:02,295 --> 00:58:06,616
Now it's back, but it's fighting for scraps while the justice side of the building is
feasting.

774
00:58:06,616 --> 00:58:12,117
The problem isn't just the money, it's the culture of prosecutorial excellence being the
only metric for success.

775
00:58:12,117 --> 00:58:14,218
mean, the reason you have the entire uh

776
00:58:14,218 --> 00:58:20,724
plea bargain system that you're talking about, the modern machine, is because the
government wins 98 % of its cases when you go to trial.

777
00:58:20,744 --> 00:58:23,056
They don't bring cases they don't think they're going to win.

778
00:58:23,307 --> 00:58:26,716
So that's not just the money, it's the change in the metric.

779
00:58:26,716 --> 00:58:31,065
We have to make defense parity a KPI for every federal grant since the state.

780
00:58:31,316 --> 00:58:35,141
So thinking back to the research brief.

781
00:58:35,392 --> 00:58:45,812
What sticks in my hat, throat, whatever you call it, it's not just the current starvation
of the system, right?

782
00:58:45,812 --> 00:58:48,172
It's the historical betrayal.

783
00:58:48,423 --> 00:58:56,923
Once LBJ signed the CJA with all the fanfare of a man saving the soul of the Republic, the
initial appropriation was a million.

784
00:58:57,083 --> 00:58:58,743
1 million and 64.

785
00:58:58,943 --> 00:59:03,083
That might have bought you a nice fleet of cars in 1964.

786
00:59:03,565 --> 00:59:13,361
But to provide counsel for every single poor person in the federal system, it was just a
PR stunt masquerading as a revolution.

787
00:59:13,361 --> 00:59:20,395
And we've been trying to fund a constitutional mandate with the spare change found under
the sofa cushions of the Oval Office for 60 years.

788
00:59:20,395 --> 00:59:22,726
It's not a shortfall, it's a design choice.

789
00:59:22,726 --> 00:59:31,691
The state wants the power to cage you, but it views the cost of your defense as an
administrative annoyance, like a filing fee that they're trying to find a way to waive.

790
00:59:32,417 --> 00:59:34,428
Look, I'm coming around to your point of view here.

791
00:59:34,428 --> 00:59:37,871
I mean, it's the disparity that really gets me, Joshua.

792
00:59:37,871 --> 00:59:40,594
I keep coming back to that 1994 bill with $30 billion.

793
00:59:40,594 --> 00:59:50,001
We can find 30 billion to build the cages and militarize the police, but today Dick Jarvan
is begging for a measly 106 million just to keep the federal public defender's doors open.

794
00:59:50,001 --> 00:59:52,743
It's not even a rounding error in the Pentagon's budget.

795
00:59:52,743 --> 00:59:55,235
But the thing that actually keeps me up is that people like Mr.

796
00:59:55,235 --> 00:59:59,913
Anzani in Oregon, or Anzana in Oregon, I mean, he's a human being.

797
00:59:59,913 --> 01:00:06,299
sat in a jail cell for months not because he was found guilty because the state simply
couldn't find a lawyer to point at him.

798
01:00:06,500 --> 01:00:10,743
We've reached the point where the right to counsel has been replaced by a waiting list for
justice.

799
01:00:10,804 --> 01:00:17,761
When a federal judge has to order the release of a defendant because the state's too broke
or indifferent to meet the bare minimum of the sixth amendment, the machinery hasn't just

800
01:00:17,761 --> 01:00:19,452
broken down it's evaporated.

801
01:00:19,895 --> 01:00:20,617
Yeah, it's gone.

802
01:00:20,617 --> 01:00:21,839
It's a ghost.

803
01:00:21,840 --> 01:00:24,977
We're all just participating in a seance and calling it a court here.

804
01:00:25,772 --> 01:00:34,800
Maybe, but the fact that we're seeing a federal judge actually pull the emergency brake in
Oregon gives me a sliver of something that isn't quite hope, but it is a demand for

805
01:00:34,800 --> 01:00:35,701
accountability.

806
01:00:35,701 --> 01:00:38,844
It means the system is finally choking on its own hypocrisy.

807
01:00:38,844 --> 01:00:44,068
If the listeners want to help stop the suffocating, we have three specific actions that
actually move the needle.

808
01:00:44,249 --> 01:00:48,693
First, go to the CourtWatch Network at CourtWatchNetwork.org.

809
01:00:48,693 --> 01:00:50,234
You want to see where the money isn't going?

810
01:00:50,234 --> 01:00:52,596
Sit in a courtroom for three hours on a Tuesday.

811
01:00:52,610 --> 01:00:57,063
Transparency is the only thing that scares a judge who's used to processing people like
cattle.

812
01:00:57,624 --> 01:01:01,027
Second, support the appeal at theappeal.org.

813
01:01:01,027 --> 01:01:06,391
They're one of the few investigative newsrooms left that actually tracks the intersection
of money and indigent defense.

814
01:01:06,492 --> 01:01:11,175
Without independent journalism, these budget sequestrations happen in total silence.

815
01:01:11,196 --> 01:01:12,458
Happen in a vacuum, right?

816
01:01:12,458 --> 01:01:15,921
Third, contact your representatives about the Equal Defense Act.

817
01:01:15,921 --> 01:01:20,565
You can find the breakdown of the legislation and how to take action at civilrights.org.

818
01:01:21,071 --> 01:01:24,459
We need a national standard for public defense, not a zip code lottery.

819
01:01:25,392 --> 01:01:30,616
And while you're clicking those links, remember to find us at oh fof.foundation.

820
01:01:30,616 --> 01:01:34,858
You can subscribe to the show on Castapod, Apple Podcasts, or Spotify.

821
01:01:35,439 --> 01:01:43,924
If you enjoyed this dumpster dive into the fire of American jurisprudence, leave us a
review or don't.

822
01:01:43,924 --> 01:01:48,447
The state will probably assign you a reviewer who has five minutes to read your comment
anyway.

823
01:01:48,632 --> 01:01:53,974
Yeah, well, let's make the reviews anyway, Joshua, because we let the people have their
say.

824
01:01:54,147 --> 01:01:55,398
Fine, let them have their say.

825
01:01:55,398 --> 01:02:05,635
But honestly, after looking at Jeff Sessions 2017 memo closing the OAJ, I realized the
most honest thing the DOJ ever did was stop pretending they actually wanted us to have

826
01:02:05,635 --> 01:02:06,615
attorneys.

827
01:02:06,776 --> 01:02:15,223
It was a refreshing, sociopathic sort of way, like a landlord taking the front door off
its hinges so he doesn't have to listen to you knock.

828
01:02:15,724 --> 01:02:22,566
So we're back to Clarence Earl Gideon writing a petition in pencil on lined paper because
the world is a circle.

829
01:02:22,566 --> 01:02:26,344
and it's a very, very small, very mean circle.

830
01:02:26,626 --> 01:02:28,450
Hopefully we will see you next week.

831
01:02:28,450 --> 01:02:31,546
Try not to get arrested in a county with a budget deficit.

832
01:02:32,051 --> 01:02:33,542
I for one will do my best.

833
01:02:33,542 --> 01:02:37,505
But look, even after Sessions tried to kill it, that office is back.

834
01:02:37,505 --> 01:02:39,017
Merrick Garland reestablished it.

835
01:02:39,017 --> 01:02:44,051
It's a $10 million pilot light in a very cold house, but the pilot light is still on.

836
01:02:44,051 --> 01:02:45,241
That matters.

837
01:02:45,241 --> 01:02:51,977
It means there are people in the building who haven't given up on the idea that law should
belong to everyone, not just the people that can write a check.

838
01:02:52,077 --> 01:02:56,140
It's a long walk to justice, but as long as we're still walking, we haven't lost.

839
01:02:56,221 --> 01:02:57,349
See you next week.

840
01:02:57,349 --> 01:02:59,864
It's on for now, the pilot light.

841
01:02:59,864 --> 01:03:01,065
It's on for now.

842
01:03:01,065 --> 01:03:02,366
See you next week.

843
01:03:02,547 --> 01:03:03,989
Stay angry.

844
01:03:05,812 --> 01:03:06,493
Love you brother.

845
01:03:06,493 --> 01:03:07,714
Talk to you soon.

846
01:03:08,877 --> 01:03:09,647
Bye.

847
01:03:09,709 --> 01:03:10,500
Bye.