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| Russell Gold |
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| Kay Levine |
Public defenders, who focus their talents and too-scarce resources on representing individual clients in individual cases, have largely ceded the opportunity to offer a counternarrative.
They tend not to show the public the patterns of injustice they see every day, including overuse of pretrial detention, intensive pressure to plead guilty, overzealous prosecutors, cycles of violence and frequent constitutional violations.
Defenders ought to add their expertise to ongoing public debates about crime and criminal justice policy by strategically using social media.
Through their posts, videos and tweets, defenders can contextualize what might seem like individual instances of government abuse, bring into sharp relief the realities of our everyday criminal legal system for millions of people, and inspire policy shifts.
This strategy worked recently in New York, when defenders took to social media[1] to criticize Gov. Kathy Hochul's intended changes to discovery rules; following their social media blitz, she backed down.[2]
Defense organizations can also build on and amplify the work of decarceral organizations like participatory defense hubs, court-watching groups and bail funds.[3]
If defenders build alliances with community groups and provide a richer understanding of the balance of justice and injustice in the criminal legal system, the structures that produced mass incarceration might falter and erode.
We encourage social media use by both individual defenders and defender organizations. Individual defenders' accounts of their day-to-day experiences can resonate because of their raw authenticity. Office posts can promote a consistent, long-term agenda.[4]
A few defender offices and individual attorneys are already active in this space; their posts spotlight issues that resonate locally, regionally and nationally.
Defenders and defense organizations can use four of the most prominent social networking platforms — Facebook, Twitter, Instagram and TikTok — to catalyze social change.
The sites vary in the audiences they reach and the tools they provide. For example, Facebook's user base dwarfs the other platforms, and it is useful for organizing existing groups — in part to help drive online activism toward offline events — but the other three platforms are better for expanding existing networks.
Facebook and Twitter are better suited to articulate broad policy views from the chief defender, while Twitter, Instagram and TikTok provide an effective launching pad for individual defenders' stories.
TikTok and Instagram are especially important to reach young people.
Lastly, the sites vary in the nature of their messages: Instagram and TikTok are image-driven platforms, while Facebook and Twitter are text-driven platforms that can carry images. Due to these variations, we recommend that defenders use all of these sites to spread their message broadly.
Defenders' Use of Facebook
Defender organizations can, and sometimes do, maintain institutional Facebook pages that engage in public discourse around criminal law reform.
For instance, the Cook County Public Defender's Office Facebook page shown below highlighted a story about the state's recent bail reforms and promoted an event where that topic would be discussed with the public.[5]
The Facebook Events feature is particularly good for promoting upcoming protests, organized bailouts or other public events, as users may see that their friends plan to participate.[6]
Facebook also helps amplify mainstream media coverage, such as "Last Week Tonight" host John Oliver's coverage of misinformation campaigns run by bail reform opponents.[7]
Similarly, the Los Angeles Public Defender's Office shared on Facebook a local editorial discussing retroactive sentencing relief for minor drug crimes.[8]
Defenders' Use of Twitter
Twitter enables public defenders to serve as citizen journalists,[9] sharing stories that the mainstream media overlooks, downplays, filters or spins.
Some defenders already use Twitter to report what they see in court or in the jails every day.[10] Twitter is also an effective platform for calling out a district attorney's office[11] when it violates its public commitments:
I thought @ManhattanDA wasn't prosecuting theft of services cases anymore. Have already arraigned multiple cases tonight where someone has spent nearly 24 hours in jail for stealing $2.75 from the MTA.
— Eliza Orlins (@elizaorlins) January 22, 2018
The brevity of a tweet can also lay bare fundamental truths about the criminal legal system, including this viral tweet[12] that received nearly 25,000 retweets and over 100,000 likes:
Courts are closed tomorrow for Juneteenth. My incarcerated clients, all of whom are black men, will remain in jail to celebrate the emancipation of slaves. This is America.
— SCA (@scasca16) June 17, 2021
Two features of Twitter enable information to garner wide exposure. First, the Twitter algorithm predicts content the user will like, including tweets by users they don't already follow. As a result, a user whose feed includes decarceral views on criminal law might then see tweets by more defenders or defense organizations. Second, Twitter has a "Trending" panel, which shows all users what topics are currently trending across all users.
Defenders' Use of Instagram
In Instagram posts, defender organizations can take prominent stances on criminal justice policy matters, while individual defenders can share their experiences and perspectives.
The Orleans Public Defenders office has been particularly active on Instagram. OPD posted about the mayor's decision to prioritize rehabilitation and accountability over punishment in a recent juvenile case.[13] It also publicized a protest challenging the transfer of children to Louisiana's very dangerous Angola prison, as the below image shows.[14]
OPD has used the comments section on its Instagram posts to provide ways for large numbers of users to show their support — posting links to a petition that users can sign electronically, for example — paired with posts about their offline protests of the same action.[15]
Instagram posts by a handful of defender offices and individual defenders sometimes highlight the pervasive underfunding of indigent defense and defenders' intolerably high workloads, as in the meme shown below.[16]
At the office level, a post from OPD featured an op-ed by a New Orleans Saints player applauding a city ordinance that requires near funding parity between OPD and the district attorney's office.[17]
If defenders and their organizations can attract the attention of people with large Instagram followings, those influencers can help promote these messages.
Defenders' Use of TikTok
TikTok provides a punchy, colorful platform that reaches young people who are still forming their political views and who will become an important future voting bloc.
Because it hosts video, it can be a powerful tool for defenders to tell stories of daily injustice or to lift up others' stories. Much of #PublicDefender TikTok involves lawyers recording themselves rather than their clients.
Some public defenders have posted TikTok videos discussing the unjust treatment their clients received — such as the court detaining an HIV-positive transgender client when even the prosecutors did not request detention.[18]@loloverruled Reply to @rahel ♬ original sound - Alex Peter (Lolo)
To the right, a public defender with more than 800,000 followers explains that it does not matter to him whether his clients are innocent or guilty "because they're poor people who are constantly getting screwed over by an overly punitive system that is out to get them from the get-go."[19]
These videos bring to a large public audience a complaint that has long loomed in the academic literature about poverty's connection to the criminal legal system.[20]
Short videos can also be posted to a defender's Facebook page, but they are more likely to reach diverse audiences through TikTok's algorithmic distribution.
Similarly, short videos could, and probably should, be cross-posted to Instagram reels or videos;[21] posting in multiple locations would ensure the widest exposure.
Conclusion
In sum, eradicating the structures that led to mass incarceration will not happen without the voices of the institutional actors whose expertise and incentives have largely been missing from public discourse — indigent defenders.
Individual defenders and their offices should look beyond courtroom advocacy to become strategic, active participants on social media; in that forum they can educate, engage with and learn from community members who share their interest in criminal justice reform.
Over time, coalitions of defenders and community activists can generate narratives to counter police and prosecutor narratives that have dominated for decades.
Using social media and building strategic alliances enables defenders to activate[22] the citizenry, inspiring them to take more interest in the criminal legal system that operates in their communities.
An activated citizen might sign a petition, volunteer at a participatory defense hub, donate to a bail fund, write to a member of Congress or even run for office.
Through a combination of such efforts, criminal justice reform issues can become and remain salient public policy issues — perhaps driving fundamental change over a generation or two.
For all of these reasons, we believe that developing a public voice is an important part of effective legal advocacy for defenders in the 21st century.
Russell M. Gold is an associate professor of law at the University of Alabama School of Law.
Kay L. Levine is a professor of law and associate dean for research at Emory University School of Law.
This piece has been adapted from their longer article, The Public Voice of the Defender, forthcoming in volume 75 of the Alabama Law Review.
"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 their employer, its clients, 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] Carl Hamad-Lipscombe (@carlken), Twitter (Apr. 2, 2023 5:07 PM), https://twitter.com/carlken/status/1650984859681136642.
[2] Jacob Kaye, Discovery Reform Rollback Doesn't Make Final Budget Cut, Queens Daily Eagle (Apr. 28, 2023), https://queenseagle.com/all/2023/4/28/discovery-reform-rollback-doesnt-make-final-budget-cut.
[3] For more information about these kinds of community groups, see Jocelyn Simonson, Radical Acts of Justice (forthcoming 2023).
[4] See Kim Taylor-Thompson, Individual Actor v. Institutional Player: Alternating Visions of the Public Defender, 84 Geo. L.J. 2419, 2420 (1996).
[5] Cook County Public Defender's Office, Facebook (Nov. 4, 2022, 1:23PM), https://www.facebook.com/CookCoDefender.
[6] See, e.g., Cook County Public Defender's Office, Facebook (Oct. 21, 2022, 10:40AM), https://www.facebook.com/CookCoDefender (publicizing an upcoming event where the Public Defender will address bail reform).
[7] Cook County Public Defender's Office, Facebook (Oct. 31, 2022, 11:51AM), https://www.facebook.com/CookCoDefender.
[8] Los Angeles County Public Defender, Facebook (Nov. 4, 2022, 10:26PM), https://www.facebook.com/LACOUNTYPD.
[9] Summer Harlow, Social Media and Social Movements: Facebook and an Online Guatemalan Justice Movement that Moved Offline, 14 New Media & Soc'y 225, 239 (2011).
[10] See, e.g., Peter Calloway (@petercalloway), Twitter (Dec. 2, 2022, 4:21 PM), https://twitter.com/petercalloway/status/1598804693698121729 (describing in a detailed, lengthy thread the "human rights crisis happening in San Francisco's jails" that explains the overlapping poor jail conditions and lengthy court backlogs).
[11] Eliza Orlins (@elizaorlins), Twitter (Jan. 21, 2018, 10:47 PM), https://twitter.com/elizaorlins/status/955300859780399109.
[12] SCA (@scasca16), Twitter (June 17, 2021), https://twitter.com/scasca16/status/1405577572864385031.
[13] Orleans Public Defenders (@orleanspublicdefenders), Instagram (Aug. 25, 2022), https://www.instagram.com/p/Chsta32LgmR/.
[14] Orleans Public Defenders (@orleanspublicdefenders), Instagram (Aug. 26, 2022), https://www.instagram.com/p/ChvFOzcp9wK/.
[15] Id.; Kids Don't Belong in America's Worst Prison, Organize For, https://campaigns.organizefor.org/petitions/stop-louisiana-governor-s-war-on-children (last visited Nov. 22, 2022).
[16] E.g., @anxious_public_defender, Instagram (June 3, 2021), https://www.instagram.com/p/CQc75BwJo7Q/; Public Pretender (@publicpretenderstory), Instagram(Mar. 26, 2022), https://www.instagram.com/p/CblyLt2LN0F/.
[17] Orleans Public Defenders (@orleanspublicdefenders), Instagram (Oct. 29, 2021), https://www.instagram.com/p/CVnnZTdlL-K/.
[18] Eliza Orlins (@elizaorlins), TikTok (Oct. 2, 2022), https://www.tiktok.com/@elizaorlins/video/7149790576739749162?is_from_webapp=1&sender_device=pc&web_id=7166284442947126826. Lawyers should obtain client consent before discussing specific clients.
[19] Lolo (@loloverruled), TikTok (Nov 18, 2021), https://www.tiktok.com/@loloverruled/video/7031998836876954927?is_copy_url=1&is_from_webapp=v1.
[20] See, e.g., Jocelyn Simonson, Bail Nullification, 115 Mich. L. Rev. 585 (2017); Jenny E. Carroll, Beyond Bail, 73 Fla. L. Rev. 143 (2021).
[21] Tom Taulli, TikTok: Why the Enormous Success?, Forbes (Jan. 31, 2020), https://www.forbes.com/sites/tomtaulli/2020/01/31/tiktok-why-the-enormous-success/?sh=2ea582c965d1 (quoting an analyst who explains that people sharing TikTok videos on Instagram has helped grow TikTok's popularity).
[22] Michael S. Kang, Race and Democratic Contestation, 117 Yale L.J. 734, 792 (2008).