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The End of Public Defenders

One path to ending mass incarceration is ending our modern conception of public defense. And being transparent about our work is one way to start.


A little more than 15 years ago, I began my career as a public defender. Propelled by outrage, I was encouraged to see my work as a crucial check on law enforcement — and I did. A few years in, working in Miami and then various offices in New York City, I began to question the role of public defenders. Are we a check or a collaborator? I wanted to be part of an equalizing force, and yet it felt that much of my job came down to assisting the court, however unwillingly, in extracting guilty pleas from my clients and thereby burying misconduct on the part of the police, the prosecution, and the court. Many of my colleagues were noticing the same thing. Was our perspective unreasonably cynical? We saw the creation of the public defender system as an inspired moment in our nation’s history, when human rights and decency won out.

For years, I lived in this schism: Where what I was seeing and what I was told I should be seeing didn’t line up. Was I hallucinating that parts of my job were aligned with the interests of law enforcement? About a year ago, I read a new history of the public defender that said to me, What you’re seeing is real. The creation of the public defender was not a victory of human rights, I came to learn. Instead, it was a formative step in the expansion of our system of mass arrest, guilty pleas, and incarceration. I had been sold a bill of goods, it turned out, as far as my role in our criminal legal system goes, but I had also found a new well of outrage to draw upon — and with it, a path forward.

There is something that public defenders can do to effect structural change, despite our role as collaborators: We should release the trove of information that our offices have been hoarding for almost 60 years, thereby equipping anyone in this country with the materials they need to change our criminal legal system. Now we just need to do it.

As Sara Mayeux recounts in her excellent Free Justice: A History of the Public Defender in Twentieth-Century America, what we call our public defender system wasn’t created by Progressive Era lawyers, or socialists, or by a man named Gideon holding the line against injustice. Rather, as Mayeux tells the story, it was the result of many years of behind-the-curtain work by white, wealthy attorneys. The solution that public defenders offered, in their view, was a path through which the legal establishment could avoid overhauling the criminal “justice” system by simply providing lawyers to everyone caught in it.

Voices of the poor, and anyone who was not an elite attorney, were excluded from any meaningful input in the design of the public defender system. By the middle of the 20th century, the Cold War was all-consuming for these attorneys, and a motivating interest for their concept of the public defender became positioning “democratic justice” over communism. In this context, defense counsel in a purely adversarial legal system was “elevated into an essential element of what made trials not only fair, but also democratic,” Mayeux writes. In other words, the real problem was not actual racial and economic injustice, but the appearance of procedural injustice. It wasn’t that there were too many unlawful arrests, but that we had too few lawyers ready to process them all.

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Cases like that of the Scottsboro Boys and Betts v. Brady laid bare an emerging catastrophe: the police and professional prosecutors, who were still finding their footing in this nascent system of punishment, saw their role as making arrests and securing convictions. The legal establishment, however, saw the problem as a lack of adequate counsel. The solution was not to reform the police, prosecutors, or the courts, if that even occurred to them. Their solution was to give everyone lawyers, allowing the great and ruinous gears of our fledgling criminal “justice” system to grind on — and with that, to destroy entire communities. The public defender system, in other words, wasn’t created to defend the public, nor was it designed to deliver justice. It was built to handle the traffic. The Supreme Court essentially ratified the work of these elite, establishment attorneys in 1963 in the landmark Gideon v. Wainwright.

That case was decided long before it got to Washington. As Mayeux notes, one justice who played a role in its outcome later remarked that “no lawyer could have lost that case.” Gideon, though widely touted as a triumph for David, was entirely Goliath’s victory in that it finally scrubbed the public out of the public defender. Mass incarceration exists and grows not in spite of but by way of our public defense system.

We continue to use the term public defender because we want it to be true, even though the conception of the institutional defender was essential in the development of the criminal legal system. By and large, we maintain a concept of our American criminal courtroom as an acceptable venue for productive engagement of adequately matched adversaries. The title public defender helps to obscure the overriding purpose of our courts: to remind workers and the poor that they are not in control and, should they forget, that there is a fate worse than poverty waiting for them. Slapping that term onto this system erroneously suggests that some kind of popular uprising is possible within its structure — and that’s the point. We want the fantasy. This idea of a corps of lawyers acting as a bulwark against injustice lends an air of legitimacy to the enterprise of police barreling through poor communities, often with excessive force and other demeaning tactics, to arrest millions of people who are then processed through the legal system by prosecutors and judges.

With this legitimacy comes structural support. Many of our clients are arrested in overpoliced, under-resourced neighborhoods and plead guilty to simply end the case and its intractable disruption to their life; many more do so to avoid the risk of extreme punishment after trial. By participating in this process, public defenders imbue the ensuing convictions with a kind of constitutional integrity, rendering them all but impervious to attack on appeal. The same protection is granted to any police action that gave rise to the arrest. Almost every illegal stop and instance of misconduct by the police is excused by a guilty plea, a process that depends on the presence of a lawyer. If, in the public imagination, those lawyers are embattled heroes sincerely wearing the badge of public defender, however, then perhaps the process doesn’t seem so devious after all.

The integral role of public defenders within our system of mass incarceration lives alongside our active support of reform. Many, in fact, take the job for the purpose of being a part of changing the criminal legal system. I know I did. And all of us do play a crucial role in the individual lives of our clients once they are trafficked into the criminal legal system by the police. One of the things that’s most confounding about being a public defender is our bifurcated awareness: that the work is critical and useful on an individual scale, even as it directly supports a violent system of racist control of the poor. It is impossible to do the former without the latter, overwhelmingly so considering that so much of our work ends in standing next to a client as they plead guilty.

Public defenders, myself included, march in protest against injustice in the criminal legal system, as we are right to do. But we mustn’t also blind ourselves to how our daily work contributes to the expansion of the system we are protesting. This is true even for those of us who practice our craft at the highest levels. The legitimacy of the system depends on a warehouse of quick-witted defense attorneys whom police and judges can point to when asked whether their actions were, or are, constitutional. Without us, there wouldn’t be mass arrests and inhumane conditions of confinement. The system might just grind to a halt.

In New York City, for example, public defender offices quietly compete against each other in a bidding process to represent all the people whom the police are expected to arrest in a given year.  An office may contract to represent 40,000 people in the coming year, and that office is expected to meet that 40,000 number to remain competitive in subsequent contract negotiations. On the one hand we decry unnecessary arrests, but on the other we need to make our numbers in order to get paid. How can we conduct ourselves that way and still claim that the endless flood of arrests is something that is happening to us and we are powerless to stop it? When are we going to stop merely protesting the inadequacy of police reform and take greater responsibility in forcing the hand of police, prosecutors, and the courts?

Every day that this status quo persists, we show that we are not antagonists of the system. We are the system.

Because we’re so deeply embedded in this mess, there is at least one disruptive tactic within our reach as system actors: releasing our records. Not piecemeal — we never hesitate to release data that makes our offices appear beleaguered and heroic — but all of it. In our filing cabinets lie the detailed histories of so many people caught up in the system — witnesses, the accused, police, victims, judges, defense attorneys, prosecutors. We can turn over all the triumphs and lies and dirty secrets, in granular detail. Every instance in which an officer charged a Black and white person differently for the same set of facts, or investigated a case differently. Every time police stuck a suspect in a lineup or photo array despite scant evidence of guilt. Every time an officer sent someone to the hospital, and then charged them with resisting arrest. Every prosecution based on a shocking dearth of evidence.

Everything policymakers need to defund or abolish or otherwise overhaul the police is sitting idle in public defender hard drives and storage facilities across the country. We have a moral obligation to release this data — in the aggregate, and consistent with our duties to our clients and other ethical considerations. For almost 60 years, we have been witnessing, collecting, and archiving the stories of our clients’ lives at a time of crisis. These stories, often of gutting experiences of oppression to real human beings if taken individually, carry an additional weight when compiled. They become evidence. Patterns. Data — systemic data. By doing almost nothing with that data, we reinforce our role as collaborators. And in so doing, we betray our clients and their communities.

The public deserves to know the truth about our criminal legal system, even though releasing this information may disclose our failures, and further complicate our already-troubling relationship with the police and the governments we serve. What’s more, unlocking our archives may further empower people who don’t work in the field of criminal justice to meaningfully contribute to its reform, including our clients and members of their communities. Perhaps we could divest from seeing ourselves as heroes and recognize the utility in releasing this information. As founding participants in this awful system, we bear an obligation to be as transparent about it as possible — and empower the public and policymakers to dismantle it.

None of this is meant to deny the reality of the system as it is right now. Many people, when they are trafficked into the courts, feel that their lives are unraveling. They need someone to help them understand the byzantine rules of our legal system and fight for their stories to be heard. Institutional defenders play a critical role in that regard. We experience and support our clients’ humanity while police and judges and prosecutors strip it away. We provide what sometimes feels like a lifesaving service, by listening calmly and helping guide our clients through a gut-wrenching bramble of decisions that must be made. Our clients need us. Yet we cannot lose sight of the reality that they need us for the same reason this country needs the police: Because there is no alternative.

There lies an opportunity. And to grasp it, here’s a thought experiment: return to a time before our contemporary understanding of criminal justice had cooled and hardened. We might see that whatever we thought the whole business of police and judges was supposed to be, it was already clear that criminal concerns are rooted in social problems. And that those problems would never be resolved by an adversarial legal system where the interests of the parties fade behind the din of lawyers debating guilt and punishment — to say nothing of all the guns, chains, and cages. Entire communities now strain and crumble under the weight of a system presuming to keep them safe.

And so, as many of us have asked before, are we ready to take responsibility and control of our country back from a legal process that has stolen it from us? We could ask ourselves: Do we trust lawyers with something as precious as the mental and physical health of our neighbors, and ourselves? Are we prepared to shed the title of public defender, acknowledging the term’s origins in the very problems we fight against every day? There are no heroes in this system, which yields to no defense, public or otherwise. It must be dismantled.

Let’s begin by unlocking our archives, not just for the sake of transparency, but to empower people who don’t work in the criminal legal system to have a hand in making way for what is to come next. We’d be foolish to let history repeat itself and trust lawyers and judges and police to oversee their own reform — although that’s what we’ve been doing, in letting courts and the police dictate what data is routinely released, and consequently what data they wish to be judged by. Unless we reach total transparency and enable the public to refute judges, lawyers, politicians, and the police in intricate detail, the wisdom of Audre Lorde will continue to echo through our courts: The master’s tools will never dismantle the master’s house.

Image: Josh Appel/Unsplash