Current Affairs

The Problems With Public Defense Are Big, But They’re Fixable

A growing number of public defenders are refusing to submit to a brutal and soul-crushing system.

When a young lawyer applies for a law license, she must give over a huge amount of information on her “character and fitness” to practice law. In some states, this Kafkaesque process involves requiring the applicant to submit a signed affidavit from each of her prior employers. It is for this reason that I know with certainty that I held over 20 different jobs prior to becoming a public defender. I was an axe thrower at the renaissance fair, a cashier on the graveyard shift at the Jack in the Box drive through, and a mental health technician at a psychiatric hospital. One summer in high school, I spent several weeks standing on various suburban and industrial street corners brandishing a six-foot-long arrow-shaped sign directing passing cars toward “model homes.”

During my first few months as a public defender in Louisiana, I encountered a problem I had never faced before: I could not figure out how to do my job well. I had navigated jobs with perverse incentives in the past, sometimes with success. I had also shipped my share of burgers out the window missing pickles or lettuce because it was more important to “move a car” in under two minutes than to give the car’s driver what she paid for. The incentives in the courthouse were more perverse, the costs to human beings were unimaginably higher, but none of this was new to me. It was just another assembly line grinding up human lives and (usually) spitting them out again as though they were so many patties of ground beef or bags of french fries. 

For all its brutality, the courthouse machine was rather simple in operation. Here is how it worked in my town: Every second week a stack of about 40 files would appear on my desk, each representing a person who had been arrested for a felony like stealing a pair of shoes from the mall or starting a fire. Most files only contained the accusation in the form of a police report and information about the person accused (including a little mugshot picture). I would have about an hour per case to meet my client and discover whether they were innocent. Then I would need to go to the prosecutor’s office for a meeting that lasted about an hour, which meant I could spend about a minute and a half “negotiating” each case. The prosecutor would carefully consider the cases one by one, then explain that my client would be offered some sentence less than the maximum if he waived all of his rights and admitted guilt at the next court appearance. 

If I felt particularly strongly about a case, and if the prosecutor had not used up too much time in careful consideration, I might have time to make an argument that the client was in fact innocent, or that the fire was much smaller than it appeared on the news. Either I would win and the prosecutor would decrease the penalty being offered by a few months of prison or a few hundred dollars, or we would move on. We only had 90 seconds per case, so this happened rarely and with a frankness that was not seen elsewhere in the criminal process: 

“Third offense theft. Looks like a serial shoplifter. Maybe she’ll learn her lesson with five years [in prison].”

“She’s homeless. The shoes were for her kids. They were waiting outside the shoe store barefoot. If you put her in prison, that’s three kids in the foster care system. [Not a good look in an election year.] How about probation?”

”Three years and she pays restitution to the shoe store. Next?”

”Arson. The fire never left the garbage can, though.”

We were adherents to a culture created by the process of plea bargaining, through which 97 percent of all U.S. criminal convictions are obtained. This culture dictates that everyone charged with a crime is assumed to be guilty—the question is only the price which will be affixed to that guilt. There are a number of rights a person has when they elect to have a criminal trial, such as the right to confront the witnesses against them or the right to have the accusation proven beyond a reasonable doubt in a public court proceeding. These rights are expensive to vindicate and they require time. In my courthouse, as with almost everywhere in the country, it was not a priority to allocate time or money to the defense of citizens’ rights. Far better to convince or coerce each person to give up their right to trial, keep the assembly line moving, and speed up “case processing time.” These rights, like so much burger garnish, would be left behind to keep the line moving. 

Plea bargaining culture came upon courthouses gradually, promising that since the courts had neither the time nor the resources for everyone to be tried by jury, some people should have their cases resolved efficiently to make room for others to have trials. By the time I became a lawyer we had reached peak plea. There was no longer any notion of making space for jury trials—we needed room for more guilty pleas. Most people were expected to stand before a judge with five or 10 others and plead guilty in a group. Of the 1,000 people I would go on to represent, 25 of them would have a trial. The rest would be informed of their trial rights on the day that they were expected to waive them. They would be asked to mark their initials more than 20 times on a long sheet of paper designed by the judges. “Did you know that you have the right to subpoena witnesses and have them appear and testify on your behalf? Having been informed of that right, do you now voluntarily give it up in connection with your plea of guilt?”

My problem as a young public defender was that I could identify my job duties, but I couldn’t figure out how to execute them in a way that upheld all the lofty ideals my law professors and lawyer-mentors had invoked. For example: on any Thursday, the judge may have 60 of my clients whose probation he wants to revoke in the two hours before lunch. I have never met any of them before. If I talk quickly and get lucky, most of these people will go to jail, but for less time than if I were not here at all. As my hand cramps from filling out “waiver of rights” forms, as people stand up a dozen at a time and admit to various wrongs usually without ever talking to me, I wonder whether I am a “guardian of due process.”

It seems insincere to frame it that way, but consider the alternative. During my first year I followed around the senior public defenders in the office to see how they practiced, and I read a number of trial and hearing transcripts. One of the lawyers I shadowed had a policy of never going to the jail. He explained that he was very likely to catch one of those terrible resistant infections that had been going around lately—and besides, he was experienced enough to meet with the client in about five minutes before the judge took the bench. I read a trial transcript where a judge asked another of my colleagues whether he had an objection to the prosecutor’s sentencing recommendation. He said, “I’m just a speed bump in this courtroom.” That lawyer sincerely believed that his voice did not matter and that there was no point in pretending otherwise.

Within the well-entrenched culture of the courthouse it was tempting to believe that two minutes of heartfelt begging on behalf of each probation client was effective public defense. Still, the whole thing didn’t sit well with me, and I remained with the question like an itch. What did it look like to do this work well? Were we doing as well as we could under the circumstances? Perhaps in Louisiana the public defender was wise to be content as a bump in the road, slowing down the bus as it sped people to prison. A humble job, but surely better than nothing. 

I knew one thing about this perspective: I would sooner quit. I had been fired from my high school job as a road sign. I would not now, 12 years later, lay down in court and become an even lower traffic fixture.

After a year as a public defender, I attended two weeks of training in Birmingham, Alabama. It was the first installment in a program offered by a lawyer training organization called Gideon’s Promise, which asked us to make a commitment to return every six months for the next three years. The request for a long commitment was unique in a field where most legal education providers offered unrelated one-hour courses or half-day programs, but eight years later I still go back. Unlike other lawyer training programs such as the National Criminal Defense College or the Gerry Spence Trial Lawyer’s College, which bill themselves as elite bootcamps that produce the most highly-sought trial lawyers in the country, Gideon’s Promise is an organization only for public defenders. 

This means that Gideon’s Promise is able to focus its training curriculum on issues that are particularly relevant to public defense. In the first two weeks we practiced making arguments under typical public defender conditions: we were only given two minutes to meet our (fictional) client, then argued for pretrial release before a judge who only allowed us to speak for 30 seconds, dismissing any objections we made to the insane procedural rules of the mock courtroom. We were then challenged with empathetically telling the human story of our client’s innocence, and to secure for him every feature of a full and fair trial under conditions which would have been unbelievably comic in their cruelty if we had not all experienced them before in real life. We were pushed to make principled objections to the everyday courthouse practices that stripped our clients of their rights and dignity, but most importantly we were emphatically disabused of the notion that any of the insults which are levied against public defenders and their clients are normal just because they are common. 

This type of training is not the most important thing that Gideon’s Promise does, which is fortunate because it would never be enough. The organization’s founder, Jonathan Rapping, has been working for the last 15 years to answer my question about public defense: how can public defenders—especially those working in the most hostile environments in the country—do their jobs well? Training was certainly part of the answer, but the harder part (and the thing at which his organization excels) is culture change. A well-trained public defender must be supported by an office which values client service and aggressive defense, rather than one which is focused on pleasing judges or prosecutors. That office of public defenders must then act in concert to beat back the powerful courthouse culture of stripping people of their humanity so that they can be locked in cages, without consideration of how this violence shatters not only lives but communities.

Rapping is an alumnus of the Public Defender Service of Washington D.C., one of the most highly regarded and well-resourced public defender offices in the country. A person of unlimited means could not likely hire a better criminal defense lawyer than those who represent their clients “for free” at PDS. After nine years there, at the same time that I decided to abandon the drive through window and go to community college, Rapping moved to Atlanta with his young family to help establish a statewide public defender system in Georgia which would provide the high-quality criminal defense that he was used to seeing in Washington D.C. 

The project would fail, and in his new book Gideon’s Promise: A Public Defender Movement to Transform Criminal Justice (2020), Rapping explains why. He begins with portraits of several Georgia public defenders who resembled those who would later be my colleagues in Louisiana. These lawyers were career adherents to the culture of the Georgia courts, which was one of rapidly processing cases, efficiently transporting bodies into cages, and running roughshod over any speed bumps along the way. This culture, Rapping writes,  was a greater challenge than any policy, training deficit, or funding impediment. He cites the example of the town of Cordele, where “public defenders almost never met their clients outside of the courtroom. Investigation, legal research, witness interviews, and motions practice were virtually nonexistent. As one could predict, the vast majority of people pled guilty, never receiving a meaningful day in court.” Rapping was determined to change this. He would bring talented new lawyers from all over the country, put them through an elite training program, and he would stand with some of the most renowned and talented senior public defenders when he entered towns like Cordele. They would all be overmastered by courthouse culture in about two years.

After this experience in Georgia, the book follows Rapping through his efforts to build a stronger public defender office in New Orleans after Hurricane Katrina. Learning from the past, he began to focus on culture change as a primary goal. It is a personal history which illuminates some of the most important yet under-covered events in the justice reform movement of the last two decades, and outlines how Gideon’s Promise came to play a role as a force for culture change in the legal community. Rapping tells dozens of stories from the front lines of places like New Orleans, where the district attorney had a defense investigator arrested and charged with a crime for interviewing witnesses; Memphis, where one public defender took her colleagues on an hours-long public transit tour to simulate the experience of her clients; and Jackson, where a judge—so irritated by a zealous public defender that he ordered all his cases reassigned to other lawyers—then held that defender in contempt for refusing to leave his clients.

Those stories of public defenders struggling to protect their clients in a climate of injustice and inhumanity eloquently illustrate the need for the core work of Gideon’s Promise, transforming the culture of public defense to support strong, client-centered defenders. Rapping argues that public defenders who compassionately tell the stories of their clients can catalyze broader change in the criminal legal system, but that they must be sustained by a robust culture of defense in order to succeed.

I can attest that he is correct on both counts. Eight years ago, I was the first person in my office to attend a Gideon’s Promise session. More than 10 lawyers have gone after me, including the whole management team. Without the support that the community has provided, I would not have lasted very much longer than that first year as a public defender. Now things are different in that office. There are dozens of dedicated career defenders, and though there are no speed bumps, judges and prosecutors drive carefully for fear of more robust obstacles. The culture has changed both in the office and outside it. Lawyers no longer meet their clients on the day of trial. They prepare carefully, they investigate, they write well-researched motions, and they win much more often than before. More importantly, even in defeat they give their clients voice and dignity in a system designed to eliminate both. These defenders work to sustain each other in service to a common goal. They are part of a movement. My old boss has taken to bragging that he runs the best law firm in town. People stop him in the grocery store to thank him and tell him that he does.

After a long summer of national protests against the systematic police practice of murdering Black women and men, and as people continue to awaken in shock and disgust to the myriad ways in which we have all been complicit in these atrocities, I think back to an early news interview with former Minneapolis public defender Mary Moriarty. She said, “The whole country is looking at George Floyd, but we see George Floyd often, unfortunately.” Mary and countless other public defenders have been fighting police and government misconduct for decades. For criminal justice reform to be truly meaningful, it will need to address the reality that a strong public defender is the only chance that most people will have at a fair hearing in court. I hope that Rapping’s book will help bring the reality of public defense to broader circles, and I appreciate it for helping me deepen my understanding of the history and context of the new public defense movement of which I am grateful to be a part. It is also an important addition to the justice reform conversation—because it places public defenders at the center of the story, where we belong.

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