For years, the lawyers who represent poor people have complained that their offices are overworked and underfunded. Now some states are coming to believe that the solution is not to throw more money at the system. Instead, as NPR's Ari Shapiro reports, they're talking about putting fewer people in jail.

ARI SHAPIRO: Chris Keating is the executive director of New Hampshire's public defender program.

Mr. CHRIS KEATING (Executive Director, New Hampshire Public Defender Program): There's this long New Hampshire tradition of tough-on-crime, but there's a huge New Hampshire tradition of being pretty darned stingy.

SHAPIRO: 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 some measures that would take away the threat of jail time for certain offenses. In the US, the government only has to pay for a defense lawyer when poor defendants face incarceration. So taking away the threat of jail saves money. Keating believes New Hampshire is trying to distinguish between people society is mad at and people society is afraid of.

Mr. KEATING: And I think they want to reserve the resources and the court time and their attention for the people that we're afraid of 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 to 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 that they've got finite resources and these cases are just bogging them down.

SHAPIRO: The movement has support from some unexpected places.

Mr. WILLIAM WREN (Commissioner, Department of Corrections, New Hampshire): My name is William Wren. I'm commissioner at the New Hampshire Department of Corrections. Our budget is not looking very good. I'm looking to close down a prison. I'm looking to layoff and abolish 97 positions.

SHAPIRO: For that reason Wren wants fewer people sent to prison. He's asking lawmakers to examine which crimes really deserve time behind bars.

Mr. WREN: 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. You know, that was set 31 years ago. What $500 was 31 years ago is a lot different from what it would equate to today.

SHAPIRO: These kinds of conversations are happening across the country. Bob Boruchowitz is a visiting professor at Seattle University.

Professor ROBERT BORUCHOWITZ (Visiting Professor, Seattle University School of Law): In Washington and in many other states suspended driver license crimes constitute as much as one third of the total misdemeanor case load.

SHAPIRO: More than a 100,000 people are prosecuted every year for driving with a suspended license in Washington. A broad justice coalition in Seattle has recommended changing the law. Now it's before the Washington legislature.

Prof. BORUCHOWITZ: 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.

SHAPIRO: Boruchowitz says people were never motivated to address these problems before. The bad economy has provided an opportunity, but there are dissenters.

Mr. DAVID CAPELESS (President, Massachusetts District Attorneys Association): If you try to save money at the expense of public safety you might as well close down your government.

SHAPIRO: David Capeless is President of the Massachusetts District Attorney 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.

Mr. CAPELESS: They can wash with too broad a stroke even what might be a seemingly minor crime, in the context of a particular case, that is not so minor depending on the 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.

SHAPIRO: But the chief public defender for Massachusetts, Bill Leahy, says cuts have to come from somewhere.

Mr. BILL LEAHY (Chief Public Defender, Massachusetts): We've got a $3.5 billion deficiency in Massachusetts this year. All kinds of worthy programs are being cut, and we're continuing to waste money on prosecuting crimes that just are criminal only by statute.

SHAPIRO: For people who spent their lives advocating for public defenders, this is a new chapter.

Mr. DAVID CARROLL (Director of Research, National Legal Aid and Defender Association): I think it's a major shift.

SHAPIRO: David Carroll is director of research for the National Legal Aid and Defender Association.

Mr. CARROLL: 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.

SHAPIRO: Liberals are often stereotyped as being soft on crime with conservatives portrayed as tough on crime. So it might 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. Brian Walsh is a senior legal research fellow at the Heritage Foundation.

Mr. BRIAN WALSH (Senior legal Research Fellow, Heritage Foundation): 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.

SHAPIRO: Walsh recently wrote a paper called, Enacting Principled, Nonpartisan, Criminal Law Reform.

Mr. WALSH: The idea that more criminal law is always better, harsher sentences are always better, that's not a conservative principle.

SHAPIRO: Walsh wants a bipartisan group to reevaluate the federal criminal code and look at what doesn't need to be there. He already has supporters from both parties on Capitol Hill and he says he's gotten good signals from the Obama administration too.

Ari Shapiro, NPR News, Washington.

Copyright © 2009 NPR. All rights reserved. Visit our website terms of use and permissions pages at www.npr.org for further information.

NPR transcripts are created on a rush deadline by a contractor for NPR, and accuracy and availability may vary. This text may not be in its final form and may be updated or revised in the future. Please be aware that the authoritative record of NPR’s programming is the audio.



Please keep your community civil. All comments must follow the NPR.org Community rules and terms of use, and will be moderated prior to posting. NPR reserves the right to use the comments we receive, in whole or in part, and to use the commenter's name and location, in any medium. See also the Terms of Use, Privacy Policy and Community FAQ.