- (female narrator)
Production funding for
Behind the Headlines
is made possible in part by:
The WKNO Production Fund,
The WKNO Endowment Fund,
and by viewers like you.
Thank you.
- Retiring Chief Public
Defender Stephen Bush,
tonight, on
Behind the Headlines.
[dramatic orchestral music]
- I'm Eric Barnes, publisher of
The Memphis Daily News,
thanks for joining us.
I am joined tonight
by the Chief Public Defender
for Shelby County, Stephen Bush.
Thanks for being here again.
- Thank you Eric,
it's nice to be here.
- Along with senior
reporter, Bill Dries.
You are retiring, you've
announced your retirement,
you're going to be in
office a little bit longer.
Talk about this
process first, of retiring,
the office is appointed
by the Shelby County Mayor--
- That's right.
- And confirmed by
the County Commission.
- In Shelby County, the
responsibility of nominating
a Chief Defender falls
to the County Mayor,
and has to be approved by the
board of County Commissioners.
- Ok, so you're not
leaving anytime soon,
you're going to wait until
Lee Harris takes office,
is that the plan?
- Right, right.
I made this announcement of my
plans to step down before the
election so that the incoming
mayor would have enough time,
and this would be a priority so
we can get this selection right.
- And you've been a
public defender for 27 years?
- Oh heavens, yes, for now
more than half of my life.
I'm 54 and I've been
doing this work for 27 years.
There's a pretty good argument
to be made that no one should do
the work of public
defense for that long.
So we've been looking forward to
this transition for some time.
- Yeah, and we'll
talk more about that,
we'll come back to
some of the transition,
and some of why you did
this, but in that career,
either as the Chief for
the last eight years,
or at any time,
your best moment?
Or a best moment--
- Oh gosh.
- As a public defender.
- There've been so
many best moments.
I never planned to
be a public defender,
and when former mayor, Chief
Public Defender A.C. Wharton
hired me, he wanted this
long commitment of three years.
Which seemed
like an extraordinary
long period of time.
It's been a remarkable
place to practice law,
and to learn the craft, and
to be a part of the community.
It's been the honor of my
life to serve as Chief Public
Defender, and I'm deeply
grateful for Mayor Luttrell for
placing that trust in me.
And we've done a lot of work
over the last eight years too,
to change a lot of things that
needed to be improved so that
the work of this
hundred-year-old law firm is
ready for its next
generation of service.
- What makes, I'm going to
come back to my question,
what makes a good moment?
What makes a good day when
you're the public defender.
Because I think most people
would think that it's probably
rough moments, and rough days.
- It is rough moments.
You might think
it's an acquittal,
or that, but there's something
about being able to do this work
with people who are in a very
difficult spot that when they
feel and know that they've
been treated with dignity and
respect, and have the
right advice to make the right
decisions, whether
it's a plea agreement,
or going to trial, and to
see that unfold day after day,
that's what's
rewarding about this work.
- And then, lastly,
then I'll turn to Bill,
but worst moments.
What are the really bad moments?
- You know, it doesn't matter
how good you are as a lawyer
when you're under
such an overwhelming,
crushing case load, and you
can't do what you need to do to
meet your ethical
requirements to your clients.
That's been the
experience in our office,
and in many offices.
Public defense is broken
just about everywhere,
particularly in the south,
outside of the Federal system.
And so the work we've done
over the last eight years is to
reposition and to do
the change work to actually
fix those things.
One of the things we've been
able to do that I'm proud of is
increasing the
funding for the office.
We've gone from $7 million a
year in recurring funding to $14
over the last eight.
And that's good, but what's
really valuable about it is
we've been able to
begin to control work load,
so that you actually
can deliver high quality,
uniform services to all of
the people that we represent.
- A case load is what?
I said I'd go to Bill, but
now, what is a case load?
How do you measure
that, is it a day,
a year?
- It's still high, too high,
but it is manageable.
It depends on the
type of work you do.
- But give people a perspective,
are we talking hundreds,
are we talking thousands,
are we talking tens of thousands
in a given year?
- Still, hundreds of
misdemeanors if that's the work
that a lawyer is doing,
fewer of course felonies.
The important thing is that
we've gotten those within the
maximum permissible limits
under national standards.
I know that's not exciting to
most people but how it plays out
in the lives of the individuals
who we represent is a higher
level of
satisfaction, better outcomes,
and that's good for everybody.
The individual, the
family, their communities,
and the city at large.
- Ok. Bill.
- So during your tenure Stephen,
the defender's office began
working in Memphis and
Shelby County Juvenile Court.
- Mmhmm, yes.
- So as you leave, where
is that transition at,
because you not only have to
have more attorneys for that,
juvenile law is a very different
kind of law than working in
adult criminal court, so...
- Right, right.
Juvenile defense is a
specialized practice of law.
Kids just aren't little
adults, it's different.
Our lawyers, as we
moved into this practice...
the Public Defender hadn't
represented kids in juvenile
court for like forty years.
Until the Department
of Justice agreement.
And as we moved into that
practice we got to dive deep
into some of the best
thinking that's out there,
so our lawyers have training in
adolescent brain development.
They know how to respond to kids
that have seen more trauma than
most of us can imagine.
To be able to
move into that work,
lawyers have the same ethical
obligations to kids as we do to
anyone else that we represent.
And that is, I'm very
proud of that piece of work.
We're not done yet,
there's a lot more work to do,
but the community should be
proud of what we've been able to
build through the
juvenile defender practice.
- As you also leave, the
incoming mayor has a big
decision to make in terms of
Justice Department oversight.
Where do you think that should
go because the outgoing mayor
has been pretty upfront with the
point that he believes that the
oversight should end.
- And we should clarify,
oversight of the Juvenile Court.
- Right.
- Well I...
I actually had a whole
different view of the oversight,
I found it to be
useful and helpful.
Mayor Luttrell and
then County Attorney,
Kelly Rayne who structured this
agreement did it in such a way
that it kept us
out of litigation.
There is no consent decree,
there is no Federal hammer over
what we're doing, what we're
able to do instead is to turn
our attention and resources
toward building the right
juvenile justice
system for this community.
So I think too much energy has
been spent on trying to end the
oversight instead of focusing
on the work that still
needs to be done.
I think the
oversight is valuable.
One of the things about the
agreement is that it has these
six month intervals where the
DOJ and the monitors keep coming
back in to check
and direct progress.
And because of those
they anticipate
that leadership changes.
And Mayor Luttrell has been
clear that local leaders need
to be engaged to solve
these local problems,
and I think this next generation
of leadership needs the
opportunity to step into that.
We all know that county
governments focus on things that
are priorities, and I
don't think the work is done.
I hope the DOJ
doesn't step out right now,
and that oversight continues
because that will keep the work
important to this next
generation of leaders,
and we haven't
finished the task.
- There are, we've had Judge Dan
Michaels from the Juvenile Court
on the show, six
months ago or so,
it's on the website, and he had
a different perspective on this,
just out of fairness.
But from your point-of-view, one
thing that we talked about with
Judge Dan, and we've
talked with other people,
Josh Spickler from Justice
City which you were involved in
setting up, and we've had
this conversation with a lot of
people, and you reference it,
handling juveniles differently.
And part of that, it seems like
everyone agrees in some fashion
that every juvenile who gets
picked up on a minor charge that
they didn't go to
school, loitering,
small stuff, that they
shouldn't go to jail,
that there should be
some fashion of diversion.
What doesn't always
seem to be the same is
what is that diversion?
What is that interim step that
goes into place before a child
is locked up in
the juvenile jail.
What, from your point-of-view,
if you had the money,
and you had the
authority, for those kids,
minor offenses,
picked up for delinquency,
picked up for loitering, picked
up on the corner for some small,
very small thing, let's
stay away from drug crime,
and violent crime, what
should happen with that child?
- The juvenile justice
system should always
be the last resort.
We know a lot about the
impact of an encounter with the
juvenile justice system.
To answer your question
for the kid on the corner,
just being picked up.
We have to find ways to keep
those children from coming
anywhere near the
juvenile justice system.
This isn't just
juvenile justice,
it's the American criminal
justice system at large.
We have to stop using the
justice system as a blunt tool
to try to address other complex
problems in the community.
There's a lot of talk about
the juvenile assessment center
planning here.
And I, I would like to be on
record as being very cautious
about that.
Communities that have moved
into juvenile assessment center
strategies, it has no impact on
addressing the problems we have
with disproportionate
minority contact.
And actually, can lead to
dramatic net widening in
bringing more and more kids
into contact with the system.
- So is part of it
simply not picking up
the kid on the street corner?
- No, it's--
- Is that, I mean is it
a policing thing,
and I'm not blaming that cop,
I'm not doing that,
but is it a strategy of policing
that there should just be less
contact between
police and minor offenses?
- So here's the danger, if the
police can pick a kid up and
believe they're
doing the right thing,
and doing their job by taking
them to an assessment center
quickly, that's going to
incentivize that type of
response, instead of doing the
hard work of figuring out what's
going on with that kid, and
doing everything you can to
navigate them back to
family, and to support systems.
We can't use the law enforcement
and prosecution as the front
line response to kids
being on the street.
- Now let's turn the page and
go to the thing I put aside,
which is the teenager, the
15, 16, 17-year-old who has,
is accused of
committing a violent crime.
Whether it's murder, whether
it's some kind of assault,
whether it's drug
related, it's what most people,
and you don't have
to agree with that,
would consider a very
serious, felony level crime.
What is the proper
approach with that child?
- So this gets to the
important and good work,
the necessary work of the
juvenile justice system.
To be able to respond to that
type of serious behavior in a
way that is both fair, and
developmentally appropriate.
And will lead to the right
type of sanction or punishment,
but to do it in a way that
doesn't harm that child for the
rest of his life.
- Is that possible?
- Yeah it's possible.
- Are there models
around the country for,
let's...
I'm trying to do a scenario,
and I hate to be awful,
but a violent crime
by a 17-year-old.
Are there scenarios, or are
there models where that child
some-10, 15,
however many years later,
5 years later, comes out and
re-enters society successfully?
- Absolutely.
There's no one-set
model that fits everywhere.
There is a lot of research,
there's a lot of what we know
about effectively
responding to trauma.
And juvenile court has
been anchored to this idea of
rehabilitation for a
hundred years now.
There are absolutely things we
can do through the state systems
that are used to,
when children are committed
to the care of the state.
If we want to get really
serious about that behavior,
then we have to go
all the way back.
What we now know about the
impact of toxic stress on kids,
from the point of
conception all the way forward,
that needs to be our focus.
We're not going to make this a
safer community by who we pick
up and how we
respond to bad behavior.
Over the next 20, 30 years we
make it a safer more prosperous
community if we can get
about the business of growing
healthier children.
- Bill.
- Let's move back to the other
side of the public defenders
office work, in the adult
criminal justice system.
Where do you think we are
at the end of your term,
with so much discussion
about everything from suspended
drivers licenses and the
impacts that they have,
to what's happening in
the Shelby County Jail,
and it's not over-crowding to
the degree we've seen it before,
but certainly there are
some concerns that the jail
population is rising.
- I would say that the jail
population concerns may be
the priority issue for
the incoming mayor elect,
and the incoming sheriff,
and the new leadership on
the Board of
County Commissioners.
While it may not be as
high as it's been before,
the trajectory over the
last four or five years,
this could be the all-consuming,
most expensive problem facing
new leadership.
So it does need to be a
high priority as the new
administration comes in.
Arrests, physical arrests
have been declining since 2014.
We've seen fewer people
arrested into the system,
but they're staying longer.
And jail population has
reached a critical level,
no question.
- So is this decisions
that prosecuters are making,
or is this just the way
that the system overall works?
- Prosecuters have a lot of
discretion in how they choose
to prosecute cases.
But that's not the only factor,
there are a lot of factors that
are driving the dynamics
between jail poplulation.
And it's very
simple, it's two things.
The number of people arrested,
and how long they stay.
And we need to look closely at
the complex drivers behind that.
There are a lot of solutions
that have been laid in front of
the County through this,
the MacArthur Foundation Safety
and Justice work here, but we
haven't had the right leadership
to be able to do
anything with them.
There should be a
focus on bail reform.
And Just City has been involved
in highlighting this problem.
There are things we can do.
No one should be in the jail
just because they're too poor
to post a low bond.
Jail, where people are before
they are tried and convicted or
acquitted needs to be reserved
for people who are too dangerous
to be released.
- Correlation, and then
I'll go back to Bill.
The low bail presumption is that
it's not a violent criminal,
it's not someone who's
a danger to society.
- That's right.
- Is that the correlation?
- Well, first, and we don't
have time to unpack it here,
cash bail doesn't work.
You can be the most
dangerous person in the world,
and if you can afford
to make bail you're out.
But if you're poor, you're not.
And the vast majority of people
in our jail waiting for their
day in court are poor.
There are better options.
- And the vast majority
have committed misdemeanors?
- Midsdemeanors is a
significant flow into the jail.
That's probably not the
area that's driving your jail
population right now.
You need to be looking at your
in-custody felony detainees.
The number of people who have
been in the jail for more than
500 days has doubled
over the last year.
- And about how
many people is that?
A couple hundred?
A thousand?
- I don't have the
numbers right in front of me,
but--
- Under a thousand?
- What's interesting to me is
that the public defenders office
only represents 22, 23,
24% of those individuals.
The rest of them are represented
by private attorneys.
Many of them appointed council.
There are things that
we can do, but these,
there's no low-hanging fruit.
These are difficult problems
that will require people diving
in deep to do the hard
work to get to the solutions.
- Back to Bill,
ten minutes left.
- And we're talking about people
staying in that system too long,
but for far different reasons
than with juveniles in the
juvenile system.
But the city has a historic
problem with violent crime.
And a lot of times people will
say the only solution to that is
to keep these people
from harming other people.
- And you're...
who is in jail, should be
driven by that type of risk.
That, if someone poses that
type of risk to the community,
that person should be in jail.
- And they're not at
this point in August?
- Many of them are, but
it is a matter of wealth,
not risk that drives that.
- Your office also,
and you brought this up,
if there is a case where
your office is representing one
defendant in that case,
and there may be three or four
co-defendants, your office then,
because of our criminal
proceedures cannot represent
the others because that
would be a conflict.
- That's been how, based on
how we've been traditionally
structured, there have been
limits on how you can use your
public defense system.
There are other
models in other places,
and some of the recommendations
that were before the general
assembly, and that may be
coming in this next cycle,
could offer other solutions to
broaden how we use our systems
for public defense.
- Something like a firewall
between the different defenders?
- There are
single agency models,
there was a proposal that we
thought was coming forward this
year to create a
conflict defender office here.
We need to make sure that people
aren't languishing in jail.
Everyone needs
their day in court.
And for people who
have committed serious
and violent offences,
there's no reason for anyone
to be in jail for more
than 500 days without
having an opportunity
for their day in court.
- What is the Jericho Project?
- The Jericho Project is some
work that is approaching its
20th anniversary actually.
This grew out of the last
Department of Justice engagement
with the jail.
And it was our effort to
represent people who were
cycling through the criminal
justice system who live with
serious mental illness, to
represent them the way people of
means are represented.
- Which means, what?
- Really good lawyering tied to
the ability to access important
supports and
services in the community.
We know how to turn
on social security,
we know how to
navigate Medicaid.
We know how to navigate housing.
And we've been able to put
together plans for individuals
who once they are
stable enough,
and willing to engage,
can actually have
dramatic positive results.
It's gotten a lot of
accolades over the years,
and even an award from
the American Association
of Prosecuting Attorneys.
- And you were instrumental,
you're being a little bit
modest. You were, this was
your project.
- Mayor Wharton was Chief
Public Defender at the time,
Mayor Luttrell was
Sheriff at the time,
and there was a lot of
cross-line support for figuring
out how to do this.
And I've been amazed
at the success of it.
It's low-cost, it's a different
model then specialty courts,
and high impact.
And what we should take from
those learnings is that there
are ways that the justice system
can became a full partner in the
public health cycle of care.
And future leadership should
pick up on the lessons learned
from Jericho.
- Bill,
referenced this somewhat,
and we've talked
about it before,
any number of times with
the Justice City folks,
with Harold Collins from
Operation Safe Community,
former City Councilman,
the role of fines.
I think that nationally,
or maybe it's just my awakening
to it, but you see more
and more that fines that perhaps
you and I would sort of
be annoyed to pay for
an expired license, a couple
hundred dollars or something,
that add up for the working poor
for people for whom that is an
insurmountable dollar
amount who end up in jail.
What should be done about
how fines are assessed?
For again, we're
talking low level offenders,
low level offenses
like broken tail lights,
expired licenses, what
should that approach be,
versus what it is now?
- We should fundamentally
re-think using the justice
system as creating revenue
streams for other things.
It doesn't work, it really
doesn't work in communities that
are as poor who are trying to
grapple with intractable poverty
as we are in Memphis.
This is one of the things that
Just City has been successful
at shining a light on.
And not just Just City alone,
but with partners like
Baker Donelson, they challanged
a change in state law regarding
drivers licenses
and suspending them
because of unpaid court costs.
- And the time it takes, Josh
Spickler from Just City will
point out, Harold will point out
that the time it takes to go and
get those things taken care of
when you've got an hourly job
that you might get fired
from for missing work.
- This is what I would
challange new leadership to do.
Look at the amount of
money on the books.
It's uncollectable, it's
never going to be collected,
it's pennies on the dollar.
Look at what it costs
to maintain the books,
and start re-thinking whether
or not we need to be focusing on
costs, fees, and fines.
- You talk about new
leadership, that would be,
those kinds of things could
be done by County Commission,
by City Council, or does it take
the State legislature to do it?
- Both, you know, local justice
policy is driven by local
decisions, and State
decisions, not Federal.
And that's one of the reasons
that I think Just City is so
important to this community,
that there's an independent
voice that's shining a light
on important justice issues.
What they've done to highlight
the problem of girls being held
in state penitentiaries until
they have their day in court,
is incredibly important.
What they've done to shine a
light on the importance of
expungement to clear
the record of people,
to begin to reduce the lifetime
consequences of one bump against
the system.
These are the types of things
that we have to do in this
community if we are going to
be able to grapple with this
intractable
multi-generational poverty.
- You mention the
new leadership,
and we're going to take
just a couple of minutes
at the end here.
Last week's show we
taped on Thursday,
the election was
Thursday night, and give,
Bill, maybe a quick walk through
of some of the results of the
election, probably most
people have read them.
But also, what's on the
ballot because we're not done.
There's yet another election
date coming up in November.
What's on that ballot,
and who will be running?
- Alright, the
August 2nd elections,
a new County Mayor was elected,
that was going to be the case,
that person is Lee Harris,
the Democratic nominee.
- Who will be coming on the show
next week, actually.
- Ok, who will be on
the show next week,
and we also have eight new
Shelby County commissioners.
And we also have an eight
vote Democratic majority on the
County Commission as a result of
an election in which Democrats
swept every county wide
office on the ballot,
much different results than
the last two elections in this
cycle.
- Before you go to the next,
they will be seated in January?
- No. Septemeber first.
- Like I said, September.
- Everybody begins
their term of office.
And the next election is
the November 6th election,
the folks that you voted for in
the State and Federal primaries
are on the ballot
for their general election
on November 6th,
the race for Governor
will be decided between the two
nominees, and other
independent contenders,
the U.S. Senate seat that
Bob Corker is leaving
is on there,
all 14 of the State House
seats covering Shelby County,
3 of the 5 State Senate
Seats that cover Shelby County,
and just for fun, three charter
amendments to the City charter.
- Do you want to try to name off
those city charter amendments,
or should we not go there.
- Let's not go there.
[chuckling]
- People should go
and look those up.
But we wanted to be
sure we touched on that,
and again, we look forward
to having incoming County Mayor
Lee Harris next week.
To your, again, as we
said at the top of the show,
the... Lee Harris will
nominate your successor,
the County
Commission will vote on that.
You've talked a little bit about
what you would like to see those
folks do, you've talked a lot
about what you'd like to see
those folks pursue.
But what is next for you,
after 27 years in the
public defender's office?
- I have only made
one committment for after
I step down,
and that's to my wife.
That I would take a sabbatical.
I grew up in a clergy family,
my dad is an Episcopal priest,
and every seven years
we force our priests to go
and take a sabbatical.
And he would come back rested
and rejuvenated and I am looking
forward to that time.
I am proud to leave to Mayor
Harris and other leaders a
well-functioning law firm
full of dedicated professionals,
many of whom were students of
Professor/Senator
Mayor-Elect Harris.
So I think the future is bright
as this work moves forward.
- I hadn't thought about
that, because Mayor Wharton,
and I think Kelly Rayne,
who you mentioned,
the former County Attorney,
she got involved
with public defense,
and all these kinds of things
because she was a student
of Wharton's, I believe
at Ole Miss, right?
- You know a lot of our alumni
have moved forward to do all
sorts of good and
important work,
and we've been able to recruit
some of the finest young lawyers
from schools across the country.
Yale, NYU,
Chicago, Northwestern,
but also the best and brightest
from the University of Memphis.
There's a lot of talent there,
and I look forward to seeing
what they do.
- Ok. Thank you for being
here, sorry to cut you off.
Thank you Bill, and
thank you for joining us,
join us again, next week.
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