Analyzing the challenges of public defense in a surveillance state
The Public Defense Project: An award-winning collaboration with UC Berkeley
In a time when politicians wax poetic about “defunding the police” but still approve growing police budgets with increasing militarization, little public funding and support continue to be directed towards critically under-resourced public defense offices despite the amount of data generated by public and private surveillance flooding into the modern criminal court room. In response, Secure Justice and a team of researchers from UC Berkeley launched a collaboration to build a deeper understanding about the impact of emerging technologies upon public defense of indigent clients.
Combining Secure Justice’s experience in preventing the harms of surveillance on local communities with their team’s academic expertise, grounded research methodology, and motivation to counter government abuse of power, Jyen-Yiee Wong, Rachel Warren, Sneha Chowdhary, and Tiffany Pham produced the most comprehensive look at the technological challenges facing public defenders to date. Advised by Dr. Niloufar Salehi, an assistant professor at UC Berkeley’s School of Information, the team interviewed over 20 U.S. public defenders and staff at the federal and local level, analyzed past studies and policies, and consulted with scholars within the information and legal communities. Their work, “The Public Defense Project” resulted in them being awarded the Sarukkai Social Impact Award, which recognizes the School of Information master’s capstone with the greatest potential to solve important social problems and improve people’s lives in meaningful ways.
The results of The Public Defense Project are publicly available at https://sites.ischool.berkeley.edu/publicdefense/
The UC Berkeley team communicated three major needs of public defenders in their findings:
Working With Novel Surveillance Data:
“Public defenders (PDs) are overwhelmed by the volume and complexity of data that characterizes modern criminal cases. They would benefit from technical tools to process and analyze that data for their clients.
“Public defenders (PDs) frequently describe lacking knowledge and the ability to share knowledge with other public defenders. A better network for information sharing between public defenders would be useful in three areas: as a place to share case law examples and resources about new forms of technical and scientific evidence, a place to find and vet experts, and a place to organize around structural problems.”
“Poor information management systems were a significant blocker for public defenders. Throughout their workflows, they’re forced to interact with disparate databases with overlapping and poorly indexed information about client details, case information, custody status, a client’s criminal history, and court filings.”
The UC Berkeley team and Secure Justice both recognize that merely highlighting these issues is not enough, especially as the public defense community has been raising these concerns for years. Discussing the issue with the East Bay Express back in 2013, Brendon Woods, Alameda County Chief Public Defender, stated “there are some places in this state where prosecutors are heavily resourced and the public defenders aren’t. The chances of people being falsely accused and convicted is high, and it’s even higher for blacks and poor folks.”
One lever that the team highlights is the role of the private sector companies to contributing to these unbalanced scales of justice: “Anyone building software in the private sector, especially in data-driven systems, should keep the needs of public defenders in mind, to better ensure that the information which (very often) flows into the criminal justice system is used fairly.”
From The Public Defense Project Final Report.
The team implores technology developers and their employers to ask themselves:
What technical artifacts does your system create which might be useful for prosecuting or solving a crime? Who is implicated in the data that you store?
What legal standard protects these artifacts?
Are there ways you might possess exonerating evidence for someone accused of a crime?
What would legal counsel need to do to interpret the data we give them? To present it to a judge?
What process do you have for responding to that person or their defense counsel?
Those questions should also apply to any government-developed or procured systems.
Although relying upon citizen activists and other external support to develop technological solutions may seem like an appealing way to fill these gaps, advocates must be careful not to further entrench surveillance data into the court system. Fortunately, some public defenders already are on board with pushing back against the tide of surveillance. Even while Edward Snowden was still working for the NSA, public defenders like Woods fought to keep surveillance technologies out of Alameda County: “Drones could have a major impact on our clients’ civil liberties. I felt I had to step up. I do believe [Alameda County Sheriff] Ahern when he says he won’t spy on people in their backyards, but once we go down that road, where do we stop? Who’s going to be the next sheriff, and will they have the same viewpoint?”
But the responsibility to counter the impacts of surveillance on their clients should not only fall upon the public defenders who already deal with extraordinary case loads. When analyzing the impacts of surveillance, public oversight bodies, advocacy coalitions, and assessment processes must look further at how collected information will be used against defendants or in appeals processes. Even when we are envisioning tools for better information sharing among defenders, we must remember that, to avoid greater harm upon the communities they seek to serve, public defense offices are themselves government entities that should also be subject to the oversight ensuring safeguards for privacy, security, equity, and impact on civil liberties of any technologies they adopt.
Secure Justice is proud to be part of the growing movement in the Bay area to curtail the impact of surveillance technologies on marginalized communities. While the breadth of technologies, public and private, and the amount of data processed in criminal cases may continue to grow, we must create checks against those system’s abuse by demanding fair access to information, adequate resources to analyze data, and informed decision-making about technology by the defense. Alongside leaders in the public defense community such as Woods, Jumana Musa, and Hanni Fakhoury, academics like Niloufar Salehi and Deirdre Mulligan at the Berkeley School of Information and Rebecca Wexler and Meghan Graham at Berkeley Law, and advocacy partners at NACDL and Electronic Frontier Foundation, we will continue to invest our time and energy in confronting the government’s use of surveillance to enable mass incarceration.
The team of graduate student researchers from UC Berkeley’s School of Information.
We at Secure Justice are extremely grateful for the work of the UC Berkeley research team and their dedication to public service over the eighteen months of our partnership. We congratulate them on the recognition of their work and look forward to their continued use of their research talents for social progress.
Please read more about the team’s findings and reach out to support Secure Justice’s effort to turn their recommendations into action.
https://www.ischool.berkeley.edu/projects/2020/public-defense-project
https://sites.ischool.berkeley.edu/publicdefense/get-involved/
To gain additional context into the challenges faced by Public Defenders and the defense bar, listen to our Podcast featuring Brendon Woods, Jumana Musa, and Genevieve Jones-Wright.
