Rory Fleming, of Philadelphia, is the founder of Foglight Strategies, a campaign research services firm for forward-thinking prosecutors nationwide. He previously worked for the Fair Punishment Project, which was founded as a joint project of Harvard Law School’s Charles Hamilton Houston Institute and its Criminal Justice Institute, as well as the National Network for Safe Communities.
By Rory Fleming
On February 26, 2020, Montgomery County Chief Public Defender Dean Beer and Deputy Chief Public Defender Keisha Hudson were unceremoniously and unexpectedly fired. Their termination came on the heels of the two attorneys filing an amicus brief that decried the local practice of setting bail without considering defendants’ ability to pay for their release and without their attorneys present. The brief was mysteriously retracted eight days later.
Litigation challenging the monetary bail system is now commonplace, though mostly done by outside nonprofit organizations like the Civil Rights Corps. Federal judges in states as conservative as Alabama have judged what advocates deem “poverty jailing” to be unconstitutional. That is because the United States Constitution clearly sets out in the Eight Amendment that “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”
The fear from most public defenders is that, if they are the ones to point this out, they would be retaliated against. Now, Beer and Hudson know those suspicions to be well-founded.
Sadly, this persecution of public defenders is a growing trend across the nation. Recently, in Hennepin County, Minn., which includes Minneapolis, former Chief Public Defender Mary Moriarty was fired unexpectedly, after calling needed attention to the pay disparity between prosecutors and public defenders.
There is another common link between these incidents. Moriarty, like Beer and Hudson in Montgomery County, had also recently started using social media as a way to amplify examples of everyday injustice in local court. Both Moriarty and Hudson became more present on social media after attending Zealous, a high-profile media and advocacy training for public defenders hosted by the Brooklyn Defender Service in New York City. These fierce advocates may have stepped on toes and hurt feelings, but sometimes that is needed to create change.
Virtually no foul consequences fall upon prosecutors who do things much worse than argue the unconstitutionality of monetary bail. One investigatory reporter found that Adams County District Attorney Brian Sinnett had systematically ignored rapes in his jurisdiction for years. Sinnett still has his job. And Stacy Parks Miller, the disgraced former Centre County DA, would likely have kept hers, if not for her illegal practice of “catfishing” suspected drug dealers hitting national media.
Pennsylvania’s public defenders alone stand between poor people merely accused of crimes and the jail cell. Yet they are treated like the second-class citizens of the legal profession and the courtroom. Legislators should take a hard look at ameliorating this issue so these dignified attorneys can protect peoples’ constitutional rights without fear of retaliation.
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