Jonathan Gradess on Justice for the Powerless

The following is the transcript of a speech given by Jonathan Gradess (born August 5, 1947, died October 2, 2019) at the Seminar in Criminal Law of the Nassau County Bar Association on October 28, 1978. Gradess, who served as the director of the New York State Defenders Association from 1978 to 2017, was a towering figure in New York’s public defense community, and one of the most principled voices in American criminal justice reform. A lifelong advocate for the poor and marginalized, he devoted his career to strengthening the right to counsel, resisting the expansion of punitive criminal policies, and insisting that the law serve its highest purpose: protecting those with the least power. Gradess was an opponent of the death penalty for decades, and was instrumental in its eventual abolition in New York State. This speech reflects both his intellectual rigor and his moral clarity at a formative moment in the development of public defense in New York State.

The speech remains strikingly relevant today because the struggle for the fulfilment of the Sixth Amendment's promise is far from over. The fear-driven politics, underfunded defense systems, and the marginalization of poor defendants, continue to shape criminal justice policy nationwide. Gradess's call for community legal education and public engagement speaks directly to current debates over mass incarceration and the erosion of constitutional protections. More than four decades later, Gradess’s message endures as both a warning and a blueprint: the right to counsel survives only if the public understands it, values it, and is willing to defend it.

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Presented at: The Seminar in Criminal Law of the Nassau County Bar Association October 28, 1978

There are many ways to begin an address. One of them is to start by saying "It is indeed a privilege to be here," I want to begin this way because I want to make use of that privilege and tell you today about a bold, social experiment I am engaged in with the New York State Defenders Association. Some of what I shall say may remind some of you of recent criticisms of the organized bar made by distinguished jurists. My remarks are not meant to do so. In fact, I don't agree with those criticisms. I take advantage of the privilege, however, because I have criticisms of our system of justice, and I can think of no better place, this afternoon, to talk about them.

I begin with the simple belief that law serves its most humane and noble purpose when it is employed on behalf of the powerless. No matter what kind of defense practice you engage in —even if it is on behalf of the very rich —your position within the system of American criminal justice is, in some respect, identical to every other criminal defense lawyer. Those of us who work with the poor frequently throw brickbats at those who work for the rich , but I think it fair to say that there is something wrong either with our traditional relationship or our understanding of history. As John Ackerman, Dean of the National College of Criminal Defense Attorneys, recently had occasion to say in Washington, D.C.:

"Criminal defense attorneys are persons who congenitally distrust authority and want to win cases...."

I think, for many of us, that remark describes one very real area of shared consciousness —no matter whom we represent, and no matter what their wealth or condition. Perhaps that shared consciousness can overcome the problems of our traditional relationship , but, by itself, it can do nothing to alter history.

In resolving some of the dilemmas of our time, history can be our best teacher. And an immersion in the history of crime and justice makes it easier to commit oneself on behalf of the powerless.

(Pause)

The roots of our jurisprudence lie deep in the soil of English and Roman systems that demanded and prepared guidelines for the resolution of interpersonal disputes. Centuries of preconstitutional history reflect only the imposition of fines for crimes as serious as murder.

There are those who agree with James Baldwin that the course of American history might have been better pursued if Plymouth Rock had landed on the pilgrims rather than the other way around. But whether you share that view or not, it is clear to see that when the seed of Anglo-European jurisprudence was sown in the North American continent, it was inequitably watered and bore some inordinately bad fruit.

Law, from the inception of our country, has created disparities between property holders and the powerless. And there should be no mistake that these disparities are the important American distinctions between and among people. They are the distinctions which separate people from one another. With this in mind, we should begin to rely on the things we all have in common, if things are to change for our people. We are a country filled with strife and turmoil, with confused and conflicting directions. A little historical analysis might show us the way back.

In his recent work, entitled "In the Matter of Color", the Honorable A. Leon Higginbotham, one of only six black Americans to reach the federal appellate bench , makes it quite clear that during the colonial days of our nation, law and slavery wore a common yoke. In his penetrating analysis of New York's colonial history , he reveals, however, that while blacks in New Netherlands were only half free (meaning that a slave could remain free upon the annual payment of 30 schepels of wheat or maize and one fat hog) severe class discrimination was directed at others, and I quote:

"The prejudice and discrimination was directed primarily against dissident religious groups, particularly Jews... Statutes dating from this era demonstrate that although free blacks might join the militia and buy real estate, Jews were barred from both."

This anomaly is of more than passing curiosity when one views the current class and racial conflicts that fill the media and reach to our very souls. It may seem odd that a lawyer stands before you and speaks of history and I make no claim to being a historian but history reveals us to ourselves. We have built our own walls—the task before us now is to build our own bridges.

But our bridges cannot be illusory—they must be real—for the river is rising and the time is short: history shows us an ever narrowing faith in our collective willingness to build healthy and safe communities.

Passage of the Family Court Act in 1962 , for instance, was designed to move into several areas of confusion, concerning the care of children. But within 14 years of its passage, the best interests of the child had all but given way to the best interests of the victim, in the rhetoric of politicians and newspaper reporters.

But rhetoric does not bring change. History reveals that the most repressive legislative changes of our penal and family court statutes have occurred in election years. Our most recent statutory change concerning violent juvenile offenders is no exception. Yet history also reveals that victims, as a class, have never been adequately cared for or made whole by legislation which only punishes defendants. Those of us who come from poorer communities understand that, frequently, victims and offenders have more in common with each other than either has with the system of criminal justice. The Vera Institute recently documented that the result of the relationship between victims and defendants accounts for the very high percentage of dismissals in felony cases in New York City.

Victims in our early history were in a different position in terms of the system than they are today. In colonial America, a victim who could not serve process, or arrest a perpetrator might not have access to the court. If he or she could not thereafter prosecute the case, the victim might not have access to a remedy. If, at that stage, upon conviction, he or she could not pay for the incarceration of the offender, or did not wish to place the defendant into servitude, the question concerning an appropriate sentence was often not able to be raised.

In those days, we had no public system of police. We had no public system of prosecution. We had no public system of corrections. And it is perhaps our lack of historical knowledge that constrains the development of community alternatives to arrest, prosecution, and incarceration today. It is said that community corrections would be far more viable if we had community. But I think it is equally true that our criminal justice system has become as great a bureaucracy as any other. It has come to be dominated by those who would place greater concern on efficiency than on justice... greater emphasis on expediency than on mercy... greater reliance on expert planners than on the people for whom the plans are made.

I am petrified of efficiency, expediency, and reliance upon experts of this kind because first, last, and always, these have their greatest impact on the clients we serve.

And I work with people who are angry, under-educated, poor, and bewildered. They understand better than we, the lessons of history. On February 24th, seventeen-ninety, the President of the United States communicated to Congress that he had received notice from the Governor of New York that New York State had ratified the Sixth Amendment to the United States Constitution.

173 years later, the United States Supreme Court, for the first time, established an absolute right for poor persons charged with felonies to have the assistance of counsel in state courts. Generations of poor people all over our land had been lost forever in the belly of our system prior to that date.

Our plight was somewhat different in New York City and other New York locations. Yet, in the main, no real system of public defense services had been established to routinely provide representation to people unable to afford counsel. And this was so despite a common law history which reveals the practice of assigning counsel for the poor in New York , dating back to the time when New York was a British colony.

When the Court of Appeals decided People v. Witenski and set the stage for the development of the statutory initiation of New York State's public defense system , it was in no small measure affected by Gideon and the national temper of the times. And the history of those times has kept down the development of an adequate system of public defense services in New York. In the sixties, crime and justice became household words. The public perception of an ever increasing crime rate was frequently and unfortunately linked by the media to constitutional rights afforded to criminal defendants. The phrase "law and order" took on a distinct, new meaning , and a once rational and limited debate over Miranda, legal technicalities, plea bargaining, and capital punishment became an irrational and raging argument.

Legitimate protests, through the alchemy of politics, came to be labeled crime and disorder , as assassination, mass civil disobedience, and urban riots shaped the news of criminal justice.

From the campaign to impeach Earl Warren through the efforts to impeach William O. Douglas, to the movement to impeach Richard Nixon, a core of traumatizing social events jolted Americans everywhere. The seeds of change planted by the early Civil Rights Movement failed to germinate as the rhetoric of politically involved and articulate black defendants became audible to the American people , widespread publicity concerning allegations of political terrorism generated a pervasive and indiscriminate fear of crime. Through it all, the FBI faithfully reported to the American people the varying annual number of rapes, robberies, homicides, and other "street crimes" occurring each minute in the United States. And the national proclivity to racism painted every black defendant failing to act the role of slave as a potential armed Black Panther. The defense lawyer was elevated very slightly above his client in the eyes of the public, and advocating for indigent criminal defendants became about as popular as calling for increased taxes to support welfare. The willingness of states to take over the costs of law enforcement functions, the court, and corrections met with little public opposition , but indigent defense services, viewed as but a Great Society skirmish , suffered the backlash which accompanied major defeats on the battleground of the "War on Poverty". Americans, during the Vietnam years, saw flag burnings and thought "criminals" should go to jail, be they indigent or rich. People who read of political fire bombings could not rally behind the tax-supported defense of apolitical indigent arsonists. When federal public defenders sought to suppress the fruits of searches made by airport metal detectors , the Fourth Amendment bowed to the race to end skyjacking. In short, crime became the subject of dinner table conversation less than five years after the Supreme Court decision in Gideon , but the fear of crime became the overriding topic shortly after. This process has all but foreclosed public discussion of the imperative need for an adequate public defense system.

This is the history that surrounds the post natal period of public defense services. Because of it there is little question in my mind why there is no real coordination between public defense attorneys , why there is a lack of communication among them , why our public image is poor and why our clients frequently disrespect us even before they know us. Our reputation has been made on the rise or fall of a household word. And that word is crime.

The fear of crime has also given us as a group a defeatist attitude about selling our product. And that product is not only indigent felons whom the Daily News seems to dislike but it is the system of justice on behalf of the poor —it is the 6th Amendment to the United States Constitution.

The average citizen thinks he or she will never need a defense attorney ; that the bad guys are somehow born to the underclasses ; that criminal charges are lodged in the baggage compartment, not in the pullman coach. The public needs to be educated to understand that but for defense attorneys, they, too, stand at the mercy of the State. Not every crime is a rape or a murder. Charges of negligent homicide sometimes arise out of car accidents. Habitually driving while intoxicated is a serious felony in upstate New York. Consumer fraud, menacing phone calls, statutory rape, drug possession, and petty larceny are daily committed by ordinary persons both rich and poor.

(Slow)

The technicalities, the rights of the accused, the presumption of innocence, and the need for able defense attorneys all take on different meaning when it's not just "those people" who are involved. That is a message equally important to all citizens which has yet to be delivered. And the bold social experiment I promised to speak of today concerns the delivery of that message.

The New York State Defenders Association has recently opened a centralized office here in Mineola to evolve within two years into a statewide defense services backup center and to engage in a statewide program of community legal education.

Shortly the Defenders Association will be offering to members of the defender community a range of services : We're setting up and will maintain a nationwide brief-bank. We will monitor cases from across the country as well as legislation and cases in New York State. We will engage in drafting legislation and have already begun to develop profiles of county defender systems. Down the road we will provide technical assistance to defenders and will be assessing and fulfilling the training needs of defense lawyers. We will provide direct defender services by way of a newspaper and by response to requests for assistance from our members.

We expect to work with people throughout the State of New York to identify problems arising in the State. We will seek to coordinate now autonomous and diverse defender systems by placing defenders in communication with each other. We will be engaging in the transfer of technological resources, information, tactics, training techniques and training materials. In this way we can all better serve each other and our clients. Most importantly we will be organizing strategies for the development of a public constituency on behalf of defense services and defendants. The thrust of our community legal education program is directed at the development of such a constituency.

Part of our work will include an attempt to involve law students in the life of the Association. There has recently been evidence that law students are turning their backs on public interest law and poverty law and once again embracing more traditional and more remunerative areas of practice. This trend seriously affects public defense work because law students represent the next generation of defense attorneys. It is they and not us that will have the most impact on the future of defense services. Our loss of them is the loss of the American justice system.

If American law students are to greet the legal world in this era of anti-client politics , they must be prepared to meet it forthrightly. The regulation of interhuman behavior through a system of law is truly only relevant when the State and the individual are in conflict. The rest of the time, law is business and business can be regulated legally or illegally and still move upward.

It is the downward movement of people, the loss of human energy, the lack of faith in law, the human destruction of minds, the breaking of bodies, the separation of men and women from their children that lawyers should be about. And so as we approach law students that is our message. And make no mistake, we want to fill our ranks with the best and the brightest. But we also want them to understand the issues involved in poverty and how it is that bad rapport can destroy the attorney/client relationship. How it is that defendants who do not understand the financial and time constraints of public defense work are often disenchanted with the public defender, the legal aid lawyer and the assigned counsel practitioner.

We want to reverse trends and develop new perceptions of our role ; and we want to translate these perceptions into new curricula. And we want public agencies, like the police, probation, corrections and district attorneys to come on board with us.

All of these pieces are parts of our public approach. But the piece which history has taken from us will also be present. We are going to work with non-lawyers who have no involvement in the system.

Citizens who have TV relationships to crime and justice. In the Kiwanis Clubs, and the fraternal halls and the churches, there are people who respond quickly to the problems of crime, but they have been given few solutions. They need to know alternative approaches.

Defenders, we know, have little time to engage in community legal education. Yet defendants who are ignorant about the system and their rights within it can perceive lawyers as shysters and the system as one sided. This can have a ripple effect within the client community and those ripples spread to the non-client, non-impoverished community as well. The result is that defender budgets are too easily cut ; our voice is too easily drowned and our clients are too easily imprisoned. Our entire approach to community legal education is specifically designed to empower client and non-client communities to develop their own projects with legal and coordinating backup from the Association. It is specifically not intended to create a traditional speaker's bureau augmented merely by the publication of information pamphlets.

We believe that community legal education can assist lawyers to assist clients. Our clients need to know their rights in the precinct and we want a public movement to support the perpetuation of those rights. We want the police to hand out our bilingual pamphlets. It is too late for a discourse on the Fifth Amendment when the pamphlet that describes the right to remain silent sits in the waiting room of our office.

We believe that non-lawyers can receive substantive and complete information and not only understand it but also utilize it to assist in their defense. Defendants who know they have a right to counsel, who understand the purpose of arraignment, who know where to go and when, can help eliminate many problems that now arise in their cases. Community organizations and community people can be trained to assist in the operation of the criminal and juvenile justice system.

In my own program which utilizes paralegals in every correctional institution in the City of New York we have shown that bridges between attorney and client can be built that have measurable effects on the outcome of cases and the satisfaction of clients. If well trained paralegals can work with assigned counsel panels and public defenders to assist in jail interviews and the problems associated with pretrial detention , we will have expanded our eyes and our ears and our time.

Liaison with the community can assist with bail, investigation, witness location, and with sentence. With community support we can overcome the problems of bad rapport, and the lack of time, and an ever growing caseload. Nothing is worse than standing in an arraignment part and being drawn into that cliche "I don't want a legal aid I want a lawyer". We have to build understanding about the nature of public defense work. The idea that a free lawyer has no worth has probably adversely affected every person in this room at one time or another in his or her career. We need a process of education that can breath life into the 6th Amendment so that an appointed lawyer in this state is seen by all clients and the public as a fully qualified attorney upholding the noblest tradition there is.

And community organizations who come to understand these things and people who come to embrace this knowledge can help see that public defense services are accorded the respect due them. Defendants who know their rights and communities that care enough to see them enforced can help public defense services come into economic parity with other criminal justice agencies. Community people and community organizations can by organizational vehicles that are currently non-existent or under-utilized, develop widespread community support for an adequate system of public defense services.

We talk frequently of alternatives to incarceration but we lawyers cannot bring them about by ourselves. Those who support the concept frequently do not have the knowledge essential to where and how alternatives fit and how they can be implemented easily and routinely. Those people need our assistance and we need theirs. The increased use of appearance tickets, changes in the bail system, the development of diversion, and modifications of sentencing are not only philosophical questions they are legal questions, and we need to explore these questions with communities. Our Association has underway a major effort at the state and national level to constitutionalize the sentencing process so that a procedural framework for alternatives to incarceration can be built. We may appreciate the legal principles in our approach , and we may know that procedural changes can facilitate a sentencing policy which includes restitution, victim compensation, and non-incarcerative penalties that interfere as little as possible with the family life of a defendant. But we also recognize that without the widespread support and involvement of people in communities these inevitable alternatives will take much time to bring about.

Poverty law, as it was called a decade ago, was nothing more than the application of rich people's legal principles to a class of persons newly recognized under the law. Within a decade of that recognition, the loudest cry that echoed through the legal profession concerned the unasserted legal rights of the middle class. And it goes without saying that those rights then and now go unasserted far more than they should because of the economic price of freedom and the structure of the system. But unfortunately this truth has frequently been spoken in a divisive manner. It has all too frequently put people at odds with one another. It has far too many times been couched in the cliche that "the very rich and the very poor have lawyers, etc.". But one-half of that argument is a fallacy and I don't believe it has ever really been made in good faith.

I do believe that the middle class has more in common with the poor than either class has, in the main, with the system itself. This is certainly true in criminal matters where we now are coming to think that too many middle class defendants are waiving counsel and copping pleas because of the structure of the system. Yet the middle class and the poor are all the time being placed at odds with one another.

All over New York the cry for "Proposition 13" , in response to the drain of tax dollars for bureaucratic welfare boondoggles, threatens and impedes the future of defense services. That future however lies in the development of a constituency. A constituency that will rally around the 6th Amendment. A constituency that will rally around change. A constituency that will rally around mercy and true justice. The chance for the development of that constituency lies in coalition. Widespread coalition. Coalition unafraid to deal with the hard issues and unafraid to speak truth to power. Some group in the State has to take the lead to link rich and poor, black and white, young and old, native and non-native American, Hispanic and Anglo, victim and offender, attorney and client. Those are the bridges to be built. That constituency can be organized now and disparate groups can be linked. Debate can flow. Change can occur. It cannot occur if it does not begin. And that is the experiment we have begun.