Escaping the Abyss: The Promise of Equal Protection to End Indefinite Detention Without Counsel
By Brandon Buskey*
The full text of this article can be found in PDF form here.
Indefinite detention. It is a phrase most recently associated with the War on Terror that the United States launched after the terrorist attacks of September 11, 2001. It conjures the military camp at Guantanamo Bay, Cuba, where the country detained hundreds of those it labeled “enemy combatants” for years without trial. Many were found guilty of the accusations against them. Many were not. But our nation’s failure to respect the rule of law has forever tainted our confidence in those results. Most Americans would perhaps be surprised to learn that indefinite detention is not an anomaly sprung from the existential threat of 9/11. Rather, it was engineered on our shores, and it is alive and well.
I discovered this truth for myself during the summer of 2014, when, as a staff attorney for the American Civil Liberties Union, I began investigating the indefinite detention of those held prior to trial in Mississippi. In 2003, the NAACP Legal Defense Fund (“LDF”) reported that, across the state, felony arrestees could be held in jail for months or years before trial, or before even being formally charged. Widespread deficiencies in the state’s public defender system had also been extensively documented. Our goals were to find whether the practice had survived in the decade since the LDF report, and, if it did, to isolate a particularly virulent strain of the problem: indefinite detention of the poor without access to counsel.
Our investigation took us to twelve counties in each of the state’s major geographic/cultural regions, including the Delta, the Gulf Coast, and the Appalachian Foothills. In our conversations with public defenders, prosecutors, judges, and policymakers across Mississippi, it became clear that the phenomenon had deep roots. In almost every county, local officials described systems by which arrestees who could not afford counsel were held for months or longer without seeing a lawyer. Amazingly, those in counties that only required arrestees to languish in jail for “only a few weeks” typically viewed themselves as exemplary. Even where the county did make an arrestee wait for months, some other county was always worse.
We eventually identified three structural reasons why Mississippi’s
criminal justice system breeds indefinite detention without counsel. The first is that under the state constitution, a district attorney must obtain an indictment from a grand jury before prosecuting a felony. But state law does not place any limit on how long a felony arrestee may be held in jail before a prosecutor obtains an indictment. The absence of such a limit converts this supposed right into a ransom, holding arrestees hostage to their own constitutional protection.
Mississippi is by no means an outlier in this regard. Eighteen states do not have a statute-specified time frame in which formal charges must be filed—either by indictment or information. Six states require the filing of charges between three months and six months of arrest. Ten states require the filing of charges between one month and three months of arrest. Fifteen states require the formal filing of charges within a month of arrest. Thus, the majority of states allow individuals to be held at least a month without formal charges. However, many states mitigate this risk with speedy trial laws mandating that trials occur within specified times of arrest. Mississippi’s speedy trial act, however, triggers after indictment, not arrest, and it still allows the state 270 days after indictment to commence a felony trial.
The second reason for indefinite detention is historical. Across the state, judges and court officers still “ride circuit” within a judicial district. The term evokes images of 19th Century judges riding on horseback or in carriages from courthouse to courthouse to conduct the judicial business of each locality. Today, the practice involves court personnel traveling among county seats—presumably by car—for set periods over the course of a year. For example, in a district comprised of four counties, there will be a trial term in each county three times a year, with each term lasting about a month. Trial terms generally overlap with convenings of the grand jury. By design, there will be approximately two months between each trial session in this hypothetical district.
The risk of delay under this system is immediately apparent. Someone arrested on a felony during a trial term stands almost no chance of their case being presented to the sitting grand jury. They must instead wait two months until the next grand jury. If they cannot make bail, they must spend two months in a jail cell just waiting for the next session. Many districts, particularly in more rural areas—and Mississippi is very rural—have only two or three trial terms per year, forcing arrestees to wait three to five months just to see if the grand jury acts on their case. Compounding matters, local officials in several counties reported that cases are rarely presented to the grand jury during the next trial term either. Our arrestee in the hypothetical district must now wait five to six months to learn her fate with the grand jury.
To determine how long arrestees actually wait until indictment, we surveyed public defenders from seventeen of the state’s twenty-one judicial districts. The results confirmed that these hypothetical concerns are quite real. Almost without exception, indictments typically occurred within six months to a year of arrest, and no public defender reported that the district regularly secured indictments within three months of arrest.
The third driving force behind indefinite detention is another omission. Mississippi is one of six states that delegates non-capital, trial-level defense entirely to its counties. There are no standards for the timing of counsel appointment, nor is there any oversight mechanism to enforce existing constitutional and ethical standards for appointed counsel. In this void, many districts wait until an arrestee is indicted to appoint counsel.
This perfect storm of deficiencies has helped spawn a culture of apathy toward the
accused. To minimize the costs of providing appointed counsel, many counties use a
flat-fee contract system to retain public defenders. These arrangements usually involve
a county contracting with one or more attorneys to handle all or some percentage of
the county’s indigent caseload. The contracting attorneys typically accept this work
on a part-time basis, maintaining a private practice along with their defender duties.
The county’s incentive to control costs is thus passed on to the public defender.
As each new appointed client reduces the marginal value of the contract, while also
threatening the time the attorney can devote to “paying clients,” defenders
naturally look to minimize their time on appointed cases. One of the lasting memories from our investigation was a part-time public defender who candidly admitted that she did not know her clients existed until indictment, and that, if she was to “keep the lights on” at her private practice, she could not afford to know them.
As open secrets go, indefinite detention without counsel may be one of Mississippi’s most shameful. A lack of reliable data prevents an accounting of the number of people victimized by the state’s de facto system of indefinite detention. But the practice was apparent wherever we visited.
* Senior Staff Attorney at the Criminal Law Reform Project of the American Civil Liberties Union and lead counsel on Burks v. Scott County, No. 3:14-cv-00745-HTW-LRA (S.D. Miss. Sept. 23, 2014).