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| Jonathan Rapping |
Without the ability to defend themselves, the most vulnerable among us have their lives destroyed. People who are presumed innocent, yet financially vulnerable, are warehoused in pretrial detention simply because they cannot afford bail. They are routinely overcharged, overprosecuted and overpunished.
America's prisons and jails are filled with people who are almost exclusively poor and disproportionately of color. At a time when the nation is rightfully focused on police violence in the streets, we must appreciate its connection to a more invisible violence that occurs in courtrooms every day where there are no cellphones to record the abuse.
Public defenders are the key to ferreting out, and interrupting, that normalized injustice. They are indispensable to addressing the injustice America is mobilizing against in this moment.
The U.S. Supreme Court mandated in the 1963 Gideon v. Wainwright case that a lawyer be provided to any person accused of a crime who could not afford one — making clear that defense counsel is the cornerstone of our criminal justice system.
During the latter part of the 20th century, and into the 21st, politicians on both sides of the aisle jockeyed to appear tougher on crime, using rhetoric that demonized society's most vulnerable people. The system morphed into something used almost exclusively to punish low-income communities and disproportionately people of color.
Without a lawyer capable of offering a more humane counternarrative, the demonized defendant was swiftly processed through the system and punished.
Over the past several years though, policymakers have come to a bipartisan consensus that our criminal justice system is in crisis and urgently needs reform. Yet this ongoing conversation has largely left out public defenders.
Because these lawyers represent roughly 80% of the people accused of crimes in the U.S.,[1] by ignoring them reformers are overlooking the best opportunity to amplify the voice of the human beings behind the cases that are so expeditiously processed.
Collectively, dedicated public defenders are a powerful check on some of the forces that built the nation's criminal justice system into the behemoth it is today. They have the power to ferret out police, prosecutors and judges who cut corners and to force the system to be faithful to its constitutional mandates.
They are necessary to humanize people who are otherwise reduced to case files, making it easier to dispose of them without thoughtful reflection. They slow down the criminal justice conveyer belt that whisks people from accusation to punishment.
A report produced by the New York University School of Law's Brennan Center for Justice, A Fair Fight, highlights our failure to ensure that every person accused of a crime has adequate counsel, regardless of wealth. The report traces our nation's lack of support for public defenders and the cost that comes with that neglect, and suggests how we can make public defense more effective.[2]
Reformers have put forth proposals to decriminalize less serious offenses, change draconian sentencing laws and elect less punitive prosecutors. These changes can reduce our criminal justice footprint by lowering the number of cases entering the system on the front end and promoting less severe punishment on the back end.
But without public defense in the equation, these proposals will result in a smaller version of the status quo, at best. The reforms might lead to less injustice, but nothing close to justice.
As the Brennan Center's report notes, many states and counties have resisted investing in professional public defender offices. People accused of crimes in these jurisdictions are appointed lawyers if they can't afford one, but those attorneys, compared to those in public defender offices, are more likely to lack the time, resources and expertise to handle their cases.
Some states and counties use flat-fee funding where defense attorneys bid for contracts to take cases. These contracts are often awarded to the lowest bidder, and the fee remains the same per case regardless of the need to find witnesses, collect evidence or perform other investigative tasks to defend the client. In order to keep a larger share of the fee, the lawyer is incentivized to do as little work as possible.
Another approach used instead of a public defender office is appointed counsel systems, where courts assign a private attorney to each defendant who qualifies for a public defender. These lawyers are not necessarily experts in criminal law and often lack the institutional support of a full-time public defender office.
Furthermore, studies in Texas[3] found that switching to a public defender office model instead could save the state millions, and significant cost savings are also found in similar analyses of New York[4] and Iowa.[5] Additionally, well-resourced public defender offices not only represent individuals, but they can also engineer challenges to systemic injustices.
In recent months, all across the country, organized public defender offices have led the charge to free people from dangerous jails during the COVID-19 pandemic. Public defender offices have routinely been at the forefront of efforts to reform oppressive bail practices, to rewrite unfair discovery laws and to illuminate prosecutorial misconduct. Without a dedicated, professional public defender office, communities most impacted by our approach to criminal justice are left without an organizational advocate to partner with in the fight for comprehensive reform.
Public defense advocates, who have been shouting in the wind, have reason to believe their cries are finally being heard. For the first time, during this campaign season, Democratic presidential nominee Joe Biden has began to tout his service as a public defender early in his career and has included support for public defenders in his criminal justice platform.[6]
Last year, his running mate, Sen. Kamala Harris, D-Calif., introduced the Ensuring Quality Access to Legal Defense Act, also known as the EQUAL Defense Act, to allocate resources to overwhelmed public defenders. The bill would provide funding to states that ensure manageable caseloads, pay parity between public defenders and prosecutors, data collection needed to monitor compliance, and training and support, as well as provide public defenders desperately needed student loan relief.
It is a hopeful example of how federal legislation could condition funding to states on their commitment to ensure Gideon's promise is realized.
In addition, there is some movement on the ground that warrants cautious optimism. Like many other places, New Orleans public defenders have historically been severely underfunded. To begin to right this wrong, the city council unanimously passed an ordinance to guarantee public defenders receive at least 85% of what the city's budget allocates to the district attorney's office.[7] Previously the budget only gave public defenders about a third of what DAs received. This is progress, but it is just a first step.
In this moment of reckoning with the many ways our criminal justice system does not live up to its core mission — to provide equal justice for all — the role of public defenders must be squared on a national scale. My hope is that we are entering a new era, one of long overdue recognition that reforming public defense is critical to any comprehensive strategy to ensure equal justice in the criminal legal system.
Jonathan Rapping is the director of the criminal justice certificate program at Atlanta's John Marshall Law School and the president of Gideon's Promise. He is the author of "Gideon's Promise: A Public Defender Movement to Transform Criminal Justice" (Beacon Press, 2020).
"Perspectives" is a regular feature written by guest authors on access to justice issues. To pitch article ideas, email expertanalysis@law360.com.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the organization, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
[1] "Making Justice Equal," Rebecca Buckwalter-Poza, Center for American Progress (Dec. 8, 2016).
[2] https://www.brennancenter.org/our-work/research-reports/fair-fight.
[3] Evidence for the Feasibility of Public Defender Offices in Texas, available here.
[4] Estimate of the Cost of Compliance with Maximum National Caseload Limits in Upstate New York - 2015 Update, available here.
[5] State Public Defender's Efficiency Report, available here.
[6] "Joe Biden's Time As A Public Defender Was A Brief Line On His Résumé. Now It's A Virtue Signal For His Campaign." Henry J. Gomez, BuzzFeed News (July 25, 2019).
[7] "City Council vote gives public defenders important funding parity with prosecutors," Jake Clapp, Gambit (Aug. 20, 2020).