For years, the lawyers who represent poor people have complained that their offices are overworked and underfunded. Now some states are starting to believe that the solution is not to throw more money at the system. Instead, they're talking about putting fewer people in jail.
"There's this long New Hampshire tradition of tough on crime, but there's a huge New Hampshire tradition of being pretty darn stingy," says Chris Keating, executive director of New Hampshire's public defender program.
But being tough on crime can be expensive, and Keating says in New Hampshire, the tradition of stinginess is starting to win out. The insider term is "decriminalization."
New Hampshire's state Legislature is considering measures that would take away the threat of jail time for some offenses, and in the U.S., the government only has to pay for a defense lawyer when poor defendants face incarceration. So taking away the threat of jail saves money, and Keating believes New Hampshire is trying to distinguish between people society is mad at and people society is afraid of.
"I think they want to reserve the resources and the court time and their attention for the people we're afraid of," he says. "And the people we're just sort of temporarily mad at — I don't think the court system wants these people to get appointed counsel and show up for two or three preliminary hearings and then a trial and then a sentencing hearing. I think they want to move these people and cases through the system because they realize they've got finite resources and these cases are just bogging them down."
The movement has support from some unexpected places.
William Wren, the commissioner of the New Hampshire Department of Corrections, says tough budget prospects are forcing him to look at closing a whole prison and laying off 97 positions. For that reason, Wren wants fewer people sent to prison, and he is asking lawmakers to examine which crimes really deserve time behind bars.
"I'll give you a good example — our theft statutes, the threshold dollar amount for going from a misdemeanor to a felony crime is $500. That was set 31 years ago. What $500 was 31 years ago is a lot different from what it would equate to today," he says.
These kinds of conversations are happening across the country.
"In Washington and in many other states, suspended-driver-license crimes constitute as much as one third of the total misdemeanor caseload," says Bob Boruchowitz, a visiting law professor at Seattle University.
More than 100,000 people are prosecuted every year for driving with a suspended license in Washington, and a broad justice coalition in Seattle has recommended changing the law. Now it's before the Washington Legislature.
"If you were able to remove from the system the suspended driver license cases, for instance, you would reduce dramatically the burden on everybody from police to prosecutors to courts to defenders to jails," Boruchowitz says, adding that people were never motivated to address these problems before and the bad economy has provided the opportunity.
But there are dissenters.
"If you start to save money at the expense of public safety, you might as well close down your government," says David Capeless, president of the Massachusetts District Attorneys Association.
Last fall, voters in his state passed a law decriminalizing the possession of small amounts of marijuana.
Now Massachusetts is considering further decriminalization measures.
"They can wash with too broad a stroke," Capeless says. "Even what might be a seemingly minor crime in the context of a particular case is not so minor depending on the prior record, specific circumstances, whether it's the underpinning for other charges — so that's something that needs to be dealt with on a case-by-case basis."
But the chief public defender for Massachusetts, Bill Leahy, says cuts have to come from somewhere.
"We've got a 3 1/2 billion-dollar deficiency in Massachusetts this year, all kinds of worthy programs are being cut, and we're continuing to waste money on prosecuting crimes that are criminal only by statute," Leahy says.
And for people who have spent their lives advocating for public defenders, this is a new chapter.
"I think it's a major shift," says David Carroll, the director of research for the National Legal Aid and Defender Association. "We've had a hangover on the tough-on-crime movement and realize that to keep going down that path we're only escalating costs at ever greater rates, and so we need to stop and think of new ways to produce efficiencies at the same time as guaranteeing public safety."
Liberals are often pigeonholed as being soft on crime, with conservatives portrayed as tough on crime, so it might also come as a surprise to hear that one of the strongest voices for decriminalization at the federal level comes from someone who works at a conservative think tank.
"Criminal punishment is the greatest power that government regularly uses against its own citizens. So from a conservative standpoint, any great power needs to have very clear limitations on it," says Brian Walsh, a senior legal research fellow at the Heritage Foundation. Walsh recently wrote a paper called "Enacting Principled, Nonpartisan, Criminal Law Reform."
"The idea that more criminal law is always better, harsher sentences are always better — that's not a conservative principle," he says.
Walsh wants a bipartisan group to re-evaluate the federal criminal code and look at what doesn't need to be there, and he already has supporters from both parties on Capitol Hill. And, he says, he's gotten good signals from the Obama administration, too.