An under-the-radar legal fight currently unfolding in Washington underscores the issue: Even a bureaucratic task as mundane as a procuring an office building for a city agency could inflict ongoing harm that lasts for decades.
The District’s public defender’s office, known as Public Defender Services (PDS), is often cited as the gold standard for indigent defense. The office is independent from other city agencies, as is its budget, both of which help insulate it from politics and partisanship. Compared to other public defender offices, PDS is well-funded and well-staffed, and it tends to attract smart and aggressive young lawyers from around the country.
Since the late 1990s, PDS, the D.C. Pretrial Services Agency (PSA) and the Court Services and Offender Supervision Agency (CSOSA), which handles probation and parole, have shared office space at two buildings along Indiana Avenue, a little more than a block from the D.C. Superior Court, where the city’s criminal cases are adjudicated.
But the lease for PDS’s current office space expires next year (the other two agencies’ leases expire in 2021 and 2023), and because the federal government has jurisdiction over much of the city’s government, the General Services Administration (GSA) controls whether to renew the current lease or move the agencies to a new building. According to court filings, all three agencies are content with their current locations, with no substantive complaints about the buildings or how they’re managed. With the PDS’s lease up, though, the GSA asked for bids for a new office.
In such cases, the GSA includes a number of specifications for potential bidders to meet. One such specification is that the proposed building be located within a certain geographic area. Last year, for example, the GSA procured a new lease for the D.C. U.S. Attorney’s Office — the office PDS faces off against every day in court. For that lease, the GSA required that all bids be within four blocks of courthouse. The prosecutors are currently housed in a building 0.3 miles from court.
But with the new PDS lease, the GSA stipulated that bids come from a radius of 1.1 miles from the courthouse. After putting out the initial guidelines, the GSA also added a mandate that all three agencies be housed in the same building, which prevents the owner of the current buildings from even submitting a bid. (The owner has since filed a lawsuit challenging the guidelines.) On background, sources familiar with the process say these guidelines make it all but certain the lease will go to a building a mile or more from the courthouse. The new lease is expected to last for 20 years. (The GSA declined to comment for this story.)
“This would have a huge impact on the quality of defense PDS can provide for its clients,” says Tim O’Toole, a former PDS attorney who now works at the firm Miller & Chevalier. “You’re constantly going back and forth between the office and the courtroom for paperwork, to consult with clients, or to confer with colleagues. Now, each trip is what, a 25-minute walk each way? This would have a detrimental effect on every single proceeding, in every single case."
″People tend to think most of what a public defender does happens in front of a judge," says Jon Rapping, president and founder of the nonprofit public defender advocacy organization Gideon’s Promise. “But being a good attorney means communicating with family and supporters, consulting with experts and witnesses, consulting with colleagues — lawyers need to take in all that information before making decisions." Many of those requirements require time in an office before dashing back to the courtroom for another hearing.
Attorneys who regularly try cases in the D.C. Superior Court also point out that the court has an informal “20 minute rule" — if all attorneys, witnesses and parties to a case aren’t present within 20 minutes of when the case is called, the case gets postponed or removed from the docket. At best, any defendant who had to take off work or pay for child care to attend that hearing will have to do it all again just to inch the case forward. At worst, a late defendant could be subject to a bench warrant.
Moving PDS farther from the courthouse will also hurt public defenders’ abilities to assist each other. O’Toole says a good public defender’s office operates like a law firm, with different attorneys specializing in different areas of criminal law. “You’ll regularly get requests to help out a colleague that require you to be at the courthouse on a moment’s notice. You can’t do that if you’re a mile away.”
Rapping adds that a move farther from the courthouse could also undermine the mentoring that makes PDS one of the best indigent defense offices in the country. “Part of the magic of a place like PDS is in how they train young defense attorneys,” he says. “It’s a hard, steep learning curve to be a public defender. I can’t express how valuable it is for a young attorney to be able to quickly bring in a more experienced colleague when an issue comes up in court. You can’t do that if the office is 20 or 30 minutes away. And resolving those issues correctly could literally mean years of someone’s life.”
In extreme cases, PDS attorneys or their clients could always hop in a taxi or use a ride-sharing service. But to rely on paid transportation with any regularity would be a substantial drain on the office’s budget. The GSA did add a provision requiring any bid more than 1,320 feet from the courthouse to include a shuttle service to run every half hour. But O’Toole says that doesn’t really address the problem: “I suppose that’s better than nothing, but a half-hour shuttle service isn’t going to get you into a courtroom in five minutes. It doesn’t begin to make up for the advantages of being a short walk from the courthouse.”
In court filings, the federal government has claimed that that there is “no daylight” between the GSA and the three agencies about how the process has unfolded. Government attorneys cited a couple surveys submitted to the agencies, which they say informed the lease procurement process, and a document signed by all three agency heads indicating agreement with the 1.1 mile radius.
Officials from all three agencies declined to comment, citing the ongoing litigation. Yet there is good evidence that, contrary to the “no daylight" assertion by the federal government, PDS is very much worried about moving further from the courthouse. The federal briefs don’t specify how those surveys were conducted, or even what they found. And sources familiar with the process say the agencies only agreed to that 1.1 mile radius because it was the smallest the GSA offered. PDS has even retained an attorney to represent its interests in the dispute, which people familiar with these procurements say is highly unusual. If PDS’s interests were in sync with the GSA, there would be no need to hire someone to make sure PDS’s interests are protected.
Furthermore, all three agencies have expressed concerns to D.C. Del. Eleanor Holmes Norton (D) to share their concerns. Norton in turn sent two letters to the GSA about the possible move, one in June of last year, and another in October. In both, Norton stressed that the agencies made clear to her that courthouse proximity is critical to their day-to-day operations. In her October letter, Norton wrote that employees of these agencies “move in very tight timeframes” and are often required to run from the courthouse to their offices for “testing, counseling, and law enforcement" purposes. She added that putting these agencies a mile from the courthouse would undermine both public safety and efforts to reduce recidivism.
In a phone interview, Norton said she’s frustrated that the GSA appears to have disregarded those concerns. “They can’t say they weren’t aware of them, because I made it clear in my letters,” she said. When I pointed out that the lease procurement process for the U.S. attorney’s office just a year ago limited bids to four blocks from the courthouse, she replied, “I was not aware of that. That definitely sounds very fishy.” However, because the process is being challenged in court, Norton also said she’d need to consult with ethics advisers before considering any further action.
It’s hard to come up with a satisfactory explanation for why the GSA would prioritize courthouse proximity for prosecutors but not for defense attorneys, and it’s tempting to speculate about some nefarious force driving the GSA’s actions, such as political disdain for public defenders or pressure to steer the lease toward a well-connected building owner.
But the simplest and most benign explanation also seems the most likely one, and in some ways it’s more damning: No one considered how this decision would affect D.C.'s poor, who happen to be the people most affected by it.
Fighting a criminal charge typically means navigating a labyrinth of paperwork, courtrooms and deadlines, all replete with potential pitfalls that could bring more punishment or be financially crippling. If you’re indigent, putting a mile between the courthouse and your attorney’s office is just one more punch to duck. And it’s those routine, impersonal blows that can be most disheartening. Those aren’t the product of demagoguing politicians or sadistic law enforcement officials, but of mechanized justice, an assembly-line legal system indifferent to the people churned through its ranks.
“Our entire indigent system is based on the idea that some people just aren’t worthy of the kind of justice and attention that you or I would pay for if one of us was accused of a crime,” says Rapping. Diluting the efficacy of one of the few offices to have some success in bridging that gap is just another example of the problem.
“It’s not that someone is consciously trying to hurt marginalized communities when a decision like this gets made," he says. “It’s that no one is thinking of them at all.”