This past weekend I spent some time thinking about the future of indigent public defense and what role, if any, defense lawyers can play in a system beset by racism and classism. First, I read a provocative essay by Paul Butler, “Poor People Lose: Gideon and the Critique of Rights,” in the Yale Law Journal’s most recent issue, which contains over twenty articles (all available for free download) by law professors and lawyers reflecting on the 50th anniversary of Gideon v. Wainwright.
Professor Butler makes a strong case for the idea that the focus on rights discourse — the right to counsel at trial, the right to counsel during plea negotiations, the right to Miranda, the right to a jury trial — ultimately has little impact on a criminal justice [or juvenile justice] system in which poor people nearly always lose. Why do they lose? Because, as Butler explains, protecting defendants’ rights is much different than protecting defendants: ”What poor people, and black people, need from criminal justice is to be stopped less, arrested less, prosecuted less, incarcerated less.” Providing a lawyer — especially one who is underpaid, overworked, and under-resourced — does little to change this calculus. As Butler reminds us, the reason that being poor and African American substantially increases the risk of incarceration has more to do with class and race than with the quality — or lack thereof — of the indigent defense system.
So, what do we do about it? That, Butler acknowledges, is the hard part. We certainly don’t discourage law students from becoming public defenders, because on an individual level, they do help clients [more on this below]. But what is the alternative? Michelle Alexander has urged defendants to take their cases to trial, putting a stop to the vicious plea mill that has subsumed the adversarial process, and to “crash the justice system.” Butler has called for “racially based” jury nullification for nonviolent, victimless crimes as well as decriminalizing or legalizing drugs. I’m not convinced that these specific strategies in and of themselves will catalyze a social reform movement large enough to alter the system, but it’s clear that nothing should be discounted, for the situation is dire.
With all of this percolating in my mind, I happened to watch the new HBO documentary, “Gideon’s Army,” which follows three public defenders working in under-resourced counties in Georgia and Mississippi. The film was engrossing and offered (what seemed to me, at least) a realistic portrayal of the challenging and gruelling nature of indigent defense. The three young PDs — two women and one man, all African-American — were dedicated and driven, although one understandably walks away from the job when she can’t pay her bills to support herself and her son. The film concludes (perhaps for marketing purposes) with a happy ending — an acquittal after a jury trial, which made me — a total sap — cry as the PD was hugged by her (young black male) client and his (low-income) single mother.
But as the credits rolled, I didn’t feel much like recruiting baby PDs for this “army” or donating to the organization that inspired the documentary — the Southern Public Defender Training Center (SPDTC) (now called “Gideon’s Promise”), led by the dynamic (white male) Jon Rapping. Instead, I wanted to crash the system. The film’s explicit message is that there’s a “battle” going on in which dedicated and hard-working PDs can win if only enough of them sign up, endure slave wages, and get down with representing one poor person of color (and the occasional white poor person) after another, as our prisons only continue to expand.
The director, Dawn Porter, draws clumsy parallels to the civil rights movement (and even offers a cameo by John Lewis who appears at a fund-raising event for SPDTC), but there’s no acknowledgement that the lawyers who represented civil rights workers in the south had clear goals and objectives, while these PDs are fighting for…what exactly? By acting as cogs in a broken machine, one that even Rapping admits is “hell,” they are not bringing about systemic change. Yes, they may make a difference to an individual defendant, but there is no talk of broader-based action — such as a demand for a living wage, reasonable caseloads, or enough funding to perform basic investigative tasks and forensic testing. Let’s be real — how could there be this sort of activism? These lawyers are barely hanging on, working 15-16 hours/day and scrambling for change to buy enough gas to get them to the courthouse.
Don’t get me wrong — I was a proud public defender for ten years, and as a clinical professor, I still represent the same client population; I am heartened whenever one of my students enters this field. But I would never suggest that the work of the average PD, like the ones featured in the film and in most offices across the country, actually transforms the populations they serve or that the appointment of a lawyer — the RIGHT to a lawyer — helps dismantle the incarceral state.
I would also be reluctant to recruit young lawyers for this work using the pitch championed in the film, because as romantic as it sounds, it will inevitably attract people for all the wrong reasons, such as one of the women who balks when a client feels no remorse for his heinous crime. She thought she was on the “right” side of the war, only to find that the lines are not so easily drawn. As Travis Williams, my favorite PD in the film said, “I don’t see how you can do this job for any period of time and not love it. Either this is your cause or this ain’t.” He’s the guy who has tattooed the names of his clients who have been convicted after trial on HIS OWN back. He will be a career PD, and his clients will be truly blessed to have him on their side. He also recognizes, however, that the work is thankless, that the conditions are unlikely ever to change, and that it’s more of a marathon than a war. A marathon with no end in sight.
Your thoughts? Please share in the comments.
This post also appeared at PrawfsBlawg.