This piece is a commentary, part of The Appeal’s collection of opinion and analysis.
While the country practices social distancing and engages in shutdowns to stem the spread of COVID-19, the carceral machine keeps churning. Police officers are still arresting people. These people are still being charged and arraigned. Prosecutors are still asking for holds, both with and without bail. And judges are still sending people to jail and prison, with few governors granting commutations.
Most people charged in criminal court cannot afford an attorney. But in the 1963 case Gideon v. Wainwright, the Supreme Court decided that the Sixth Amendment requires states to provide an attorney to those unable to pay for one themselves.
The public defender system that sprung out of Gideon, however, has faced crises ranging from underfunding to staggering caseloads that make it impossible for defenders to effectively represent their clients. Now, COVID-19 is ushering in a new crisis: several states including California as well as the District of Columbia have postponed their bar exams, while other states have enacted a provisional licensing scheme, meaning that while law school graduates may be able to work in temporary, limited capacities performing the work that Gideon mandates, they will also bear the burden of preparing for the bar. So, what will happen to the marginalized—and Gideon’s mandate—when an entire class of public defenders cannot begin their jobs as scheduled in the fall of 2020?
It’s an especially important question because COVID-19 has also expanded the number of crimes for which people can be arrested and put in jail. In Mecklenburg County, North Carolina, a violation of a stay-at-home order is a misdemeanor that carries a potential jail sentence of up to 60 days. In the District of Columbia, Michigan, Maryland, Wisconsin, and Indiana, a violation of a stay-at-home order can result in incarceration for anywhere from 30 days to a year. In Hawaii, a man’s potential sentence for stealing a car battery was extended from 30 days to 10 years because it occurred during an emergency proclamation.
Members of marginalized communities have historically borne the brunt of overcriminalization that comes as a response to public health crises. For example, nonwhite poor people have long been hit hardest by the militarized “war on drugs” response to substance use. There is no reason to believe that this public health crisis will be any different.
Because marginalized people are particularly vulnerable to being overcriminalized, they will likely end up in prisons and jails where they risk contracting COVID-19. In April, the Cook County Jail in Chicago was the epicenter of the pandemic. This fact becomes increasingly salient when an entire class of public defenders, who marginalized people rely on to fight for their freedom and protect their rights, is at risk of delayed licensure due to COVID-19.
Solutions that postpone the July bar exam, including provisional licensure, are entirely inadequate for incoming public defenders and the people we serve. Public defense already suffers from high turnover due to high caseloads and low pay, and public defender agencies rely on scrappy law school graduates to join the profession each fall. There is also a dire need for public defenders, particularly in rural areas. National public defense caseload standards recommend that public defenders handle no more than 150 felony, 400 misdemeanor, 200 juvenile, 200 mental health, or 25 appeals per year. The average public defender in Kentucky, however, handles over 450 cases per year.
Provisional licensure is not a solution for public defenders because it would require heavy supervision by a more senior public defender who is likely already straining under a heavy caseload. Provisional licensure also essentially provides already understaffed public defender offices with glorified interns. Additionally, requiring provisionally licensed public defenders to sit for the bar exam two or three years after graduation will harm our clients. It is unlikely that public defender agencies will have the capacity to have their provisionally licensed defenders take two to three months off work in the middle of the year to study for the bar exam. Who will advocate for our clients while we are studying for the bar?
Furthermore, law students graduating into public defense positions are highly capable of practicing law without studying for and taking the bar exam. Public defender offices often prefer to hire law school graduates with courtroom and client interaction experience, and sometimes require skills-based components of postgraduate interviews such as arguing mock motion arguments and “interviewing” clients. Many of us took criminal law and procedure classes in law school, and have passed rigorous exams on these subjects. Many have completed numerous internships and externships at public defender offices, where they worked hands-on with clients and appeared in court on the record. Many have also worked in criminal defense clinics, where they represented their own clients under a student practice license. Additionally, criminal law and its adjacent subjects make up a fraction of those covered by the Uniform Bar Exam. Much of the UBE covers business topics like mergers and acquisitions and trusts and estates. This is knowledge that public defenders will never need to use.
There is also no certainty that the COVID-19 pandemic will end soon. Public health officials think that the U.S. could face 18 months of rolling shutdowns. And there is no doubt that COVID-19 will lead to an economic recession, likely without precedent, leading to much higher poverty rates. And widespread poverty means more people coming into the criminal legal system who cannot afford to pay for an attorney. These people will be in grave need of public defenders to stand with them and zealously advocate on their behalf.
Public defenders and the communities they serve cannot wait for a postponed bar exam or provisional licensure. Our clients need us now more than ever, and emergency diploma privilege—which would immediately grant law school graduates fulfilling certain requirements with a license to practice law—is the only way to ensure that the Gideon mandate is fulfilled in the coronavirus era.
Stefanie Mundhenk is a fourth-year JD/MA student and aspiring public defender graduating from Georgetown University. Emily M. Croucher is a third-year JD student and aspiring public defender graduating from the University of California, Irvine School of Law.