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Prosecutors Aren’t Just Enforcing the Law — They’re Making It

A homemade coffin placed outside the Rikers Island jail in memory of Kalief Browder.
Felton Davis / Flickr [CC]

Prosecutors Aren’t Just Enforcing the Law — They’re Making It

Just a few months ago, New York Governor Andrew Cuomo seemed sure that criminal justice reform was imminent. During his annual State of the State address in January, he called for a legislative package that would limit civil asset forfeiture, reform discovery, reduce trial delays, and most notably, significantly reduce the use of cash bail. “For far too long, our antiquated criminal justice system has created a two-tier system where outcomes depend purely on economic status — undermining the bedrock principle that one is innocent until proven guilty,” Cuomo said.

To underscore the dysfunction of New York’s criminal justice system, Cuomo told the story of Kalief Browder. Browder was 16 when he was jailed for stealing a backpack. He spent three years imprisoned at Rikers Island because his family could not afford his $3,000 bail. His time in jail was marked by abuse from guards and fellow inmates alike, as well as long stints in solitary confinement. Browder maintained his innocence, and eventually the charges against him were dismissed. But it was too late—Rikers had destroyed him. Two years after his release, Browder committed suicide. As Cuomo vowed to fix the state’s bail system, he addressed Browder’s brother, an invited guest, directly. “Akeem,” he proclaimed to the young man sitting in the audience. “I want you to know that your brother did not die in vain. Sometimes the Lord works in strange ways — but he opened our eyes to the urgent need for real reform.… We will address it and you have my word on that.”

Cuomo’s aides characterized the legislative package as “the most progressive set of reforms in the nation.” But as he tried to corral support from defense lawyers and reform supporters, many of them remained troubled by some of the details. At best, with some wrangling, it would be only the beginning of what is inevitably going to be a long road. But it was something.

Advocates were especially hopeful for bail reform: One poll found that more than 70 percent of people supported pretrial release for those accused of misdemeanors or nonviolent felonies, as long as they weren’t a flight risk. Even more striking, more than 70 percent of crime victims supported release under those conditions. “There’s a real delta between what the public wants and what is currently happening,” Zoe Towns, of, said. “We hope that the finding will really … encourage lawmakers to be bold on this issue.”

Until late March, it looked as if significant change might move forward. But then, suddenly, it was over. The budget, signed earlier this month and primarily negotiated in private by the governor and just three powerful legislators, did not include the criminal justice reforms Cuomo so adamantly supported just weeks ago. Despite what he said to Akeem, the budget doesn’t fund bail reform at all. As journalist Max Rivlin-Nadler wrote in this publication, “For bail reform advocates, including public defenders and advocates for incarcerated people, the plan’s failure serves as a bitter reminder of how difficult it is to eliminate cash bail, despite overwhelming support to do so.”

Whose fault is it that criminal justice reform failed in New York? While there’s plenty of blame to go around — a corrupt legislature, Cuomo’s craven maneuvering, the bail bond lobby — there’s one behind-the-scenes player whose influence gets little attention: the District Attorney’s Association of the State of New York (DAASNY).

DAASNY has been shaping criminal justice legislation in New York for over a century. The association’s membership includes all 62 elected district attorneys in the state, as well as many assistant prosecutors. In many ways DAASNY is like any other professional organization: It holds trainings, hosts conferences, and issues a newsletter. But its enormous leverage in the state legislature makes it uncommonly powerful. DAASNY largely serves as a lobbying group — and a very effective one.

Since its inception, this has been part of the organization’s purpose. The first press piece about the association, published shortly after its formation in 1909, notes the group’s desire for legislative influence. “While the intentions of the legislators are of the best,” it reads, “they oftentimes enact laws … which embarrass the prosecuting attorneys of the state.”

Over 100 years later, that influence persists. In January, DAASNY sounded optimistic about bail reform. “We understand that there is room for improvement in New York State’s bail statute,” said Oneida County District Attorney and current DAASNY President Scott McNamara after Cuomo’s speech. But, in the end, the organization released a statement concluding that the proposed bail legislation, as well as the other legislative initiatives, “go too far.” The statement insisted that supporters of criminal justice reform don’t understand “the realities of human behavior” and “how the criminal mind operates.” It also “strongly advised” against including the reform measures in the budget. It’s unsurprising, then, that legislative reform was unable to get off the ground.

This phenomenon is not New York-specific. Every state has an equivalent organization of prosecutors with strong policy perspectives, which often have enough sway to simply shut down criminal justice reform at the legislative level. The failure of bail reform in New York mirrors countless other legislative reform failures in many other states. As Jessica Pishko wrote in The Nation, “district attorneys’ associations are powerful political actors. They do not just “enforce” the law; in fact, they help to make it.”

Across the country, DA associations are using that power to defeat a wide range of bipartisan reform efforts. Though the criminal justice system has come under increasing scrutiny, these organizations continue to successfully hinder legislative reform. When it comes to criminal justice, associations like DAASNY are largely responsible for the gulf between policy and public opinion.

The stories are endless. Take Alabama. Not much is bipartisan in Alabama anymore, but recent efforts to rehabilitate civil asset forfeiture managed to bridge the impossible gap between parties. Civil asset forfeiture allows law enforcement to seize and keep someone’s property if they allege it is related to a crime — even if that person is never convicted or even charged with anything. Police and prosecutors can take millions of dollars’ worth of cars, cash, real estate, and other property from hundreds of innocent people, and often profits from those seized assets are deposited directly into law enforcement coffers.

Late last year, the Southern Poverty Law Center and the Alabama Policy Institute, a conservative organization, both supported a strong asset forfeiture reform law. “API and SPLC don’t agree on 99 percent of stuff, but we do agree that we need to monitor civil asset forfeiture,” said Leigh Hixon, API’s senior director of policy relations.

In January, Republican State Senator Arthur Orr introduced the Alabama Forfeiture Accountability and Integrity Reform Act, or FAIR, which would have required a criminal conviction before the government could seize a person’s property. Both parties supported the legislation — but the Alabama District Attorneys Association (ADAA) and other law enforcement groups did not. The presidents of the ADAA and the Alabama Sheriffs Association wrote an op-ed espousing the value of civil asset forfeiture, declaring, “Law enforcement uses civil asset forfeiture only to go after criminals.”

A wealth of evidence, of course, says otherwise. Frank Ranelli owned a small computer repair shop in Birmingham. Almost eight years ago, 20 police officers, some with assault rifles, barged into his store and confiscated almost 130 computers that they suspected were illegally purchased. In the end, though, only one laptop was actually even in question — and that charge was dismissed after Ranelli proved that he had followed the law. But, as of October, Ranelli still hadn’t gotten any of the computers back.

The prosecutor and sheriff’s op-ed conveniently fails to mention stories like Ranelli’s. Instead, it was chock full of outlandish predictions, none of which were undergirded by evidence. They insisted that if law enforcement had to share the profits from seized property with other agencies, there’d be “fewer busts of drug and stolen property rings” since there won’t be incentives to seize the assets if law enforcement has to share the spoils. They also claimed that limiting asset forfeiture law would result in “more people going to prison for lesser crimes.”

This is how many prosecutor associations maintain their influence — by trading on paranoia and fear, and convincing voters and lawmakers alike that, without harsh criminal sanctions for even the most minor offenses, crime will run rampant and legislators who vote for reform will be at fault.

Statements like these are easily rebuttable, but in Alabama it didn’t matter. In the end, the only thing that mattered was that prosecutors and cops didn’t like the bill, and legislators weren’t “comfortable” passing the legislation without their validation. So, civil asset forfeiture reform, which had overwhelming bipartisan support, was dead in the water, replaced by a diluted bill that only requires the state to maintain data on seized assets.

In state after state, this has been the pattern: District attorney associations stand in the way of a popular wave of criminal justice reform.

In California, the District Attorneys Association is pushing legislation that would limit Prop 47 and Prop 57, two criminal justice ballot measures that passed with overwhelming voter support. Last year, the association successfully stalled bail reform legislation. Meanwhile, the Arizona Prosecuting Attorneys’ Advisory Council has pushed for harsher drug penalties while opposing forfeiture and bail reforms. Earlier this month, Nebraska lawmakers failed to pass a bill requiring more transparency around the use of jail informants, after the Nebraska County Attorneys Association fought against it. Similarly, after legislators introduced civil asset forfeiture reform legislation in March, the Minnesota County Attorneys Association and other law enforcement agencies immediately started pushing back. And, in November, the Indiana Prosecuting Attorneys Council delivered a “firm warning” to lawmakers opposing any marijuana legalization, including for medical use, and linking it to welfare dependency.

And then there’s Louisiana.

The Louisiana District Attorneys Association is one of the most powerful DA associations in the country. According to Pishko, “from 2012 to 2015, criminal-justice bills backed by the LDAA had an 85 percent rate of passage in the Louisiana Statehouse, while criminal-justice bills it opposed passed only 38 percent of the time.” Given prosecutorial power in the state, then, it should not surprising that Louisiana is the most carceral state in America, which is the most carceral country in the world.

Last year, Louisiana was poised to pass a series of major criminal justice reform laws — a mighty feat in a state that has historically demonstrated an unshakeable commitment to tough-on-crime policies. But the LDAA reared its head, releasing a public opposition report while pushing legislators to vote against it. In the end, some pieces of last year’s reform legislation still passed. But, as Pishko reported, as a result of the LDAA’s involvement, “many key provisions had been gutted.”

In state after state, this has been the pattern: District attorney associations stand in the way of a popular wave of criminal justice reform.

This year, the LDAA came back to deal a death blow to criminal justice reform in Louisiana. Prosecutors are pushing five new bills that many advocates consider a rollback of the reforms that did pass last year. The bills would allow judges to extend probation past the current limit, and would require that people in the criminal justice system “pay restitution” to the court and their victims, which could add up to hundreds of thousands of dollars. Those who can’t pay would end up back in prison.

Earlier this month, Baton Rouge Representative Denise Marcelle introduced legislation that would “require criminal grand juries to review all officer-involved shootings resulting in injury or death.” She decided to bring the bill after the Louisiana attorney general decided last month not to file charges against the cops that killed Alton Sterling, a Baton Rouge man who was shot in 2016.

But LDAA Executive Director Pete Adams was fiercely opposed, claiming that the bill was “unconstitutional.” Marcelle decided to shelve the legislation.

The way prosecutor associations wield their influence reveals an uncomfortable truth about the current makeup of the profession. Prosecutors are tasked with a sacred duty — the duty to seek justice. But their lobbying efforts often reflect priorities that simply are irreconcilable with justice as a paramount concern.

Time and time again, these organizations throw their weight behind legislation that reflect the tough-on-crime dogma that has long defined criminal justice policy in America. This in itself reflects a troubling misunderstanding of their role — prosecutors are supposed to do what is right, and sometimes what is right is what is lenient.

But that misunderstanding is exacerbated by another pattern — as these organizations lobby for increased sanctions for ordinary citizens, they also fight to limit oversight over law enforcement. In states across the country, prosecutors are supporting more punishment for low-level theft while simultaneously fighting any attempts to limit law enforcement’s ability to seize property without cause. They fight to increase substantive punishments while reducing procedural safeguards.

How can these be reconciled? Only one value connects these otherwise inconsistent priorities: victory. Overwhelmingly, prosecutors throw their weight behind legislation that makes winning easier, even when it pushes them further from justice.

Nowhere is this truer than in Florida, where the Florida Prosecuting Attorneys Association (FPAA) has maintained colossal impact for at least half a century. The organization has repeatedly fought to enact harsher legislation at the state level, and last year, its dedication to barbaric tough-on-crime law enforcement led the group to turn on their very own. When Orlando State’s Attorney Aramis Ayala, a member of the FPAA, announced her decision to refuse to seek the death penalty, the FPAA filed a brief against her, which, according to Pishko, said that “Ayala had violated the separation-of-powers doctrine by effectively setting her own policy.” In a conversation with The Nation, Glenn Hess, another Florida prosecutor, justified the decision to file a brief against Ayala. “At the FPAA, our job as prosecutors is not to make law,” Hess said. “It is to take the law the legislature makes and enforce [it] in the state.”

The separation of powers is supposed to be sacrosanct, a way to ensure balance and prevent the always looming threat of authoritarianism, but the association’s appeal to these values is hypocritical.

Prosecutors are supposed to be squarely within the executive realm — tasked with enforcing the law, not making or interpreting it. As a rule, prosecutors have executed the enforcement mandate fanatically. Yet, Hess’s implication that the prosecutorial role is so narrow is misleading. Prosecutorial power has grown beyond the limits of mere enforcement. In fact, over the past forty years it has ballooned so drastically that prosecutors’ influence has seeped into the other two branches, as well.

The judicial branch is meant to be a relatively neutral force that protects the individual defendant from the power of the state. But, in a criminal system that handles most cases by plea deal, judges have less oversight over the criminal process than ever before, giving prosecutors a leash so long it is functionally non-existent. The presence of a judge has been replaced by the whims of a prosecutor.

This is why the legislative influence of DA Associations is so concerning. It gives prosecutors a stronghold over not only executive and judicial power, but legislative power, as well. More than any other position, prosecutors threaten the traditional balance of powers within the criminal justice system. Ultimately, this more than anything else has shifted tough-on-crime from hypothesis to axiom.

The presence of a judge has been replaced by the whims of a prosecutor.

Last month, Maricopa County Attorney Bill Montgomery was asked about the outsize influence of prosecutors on criminal justice legislation in Arizona. Like Hess, he responded by asserting that they aren’t lawmakers. “Prosecutors don’t have a vote at the Legislature,” he said. “We don’t sit on committees. We don’t sponsor bills. We don’t get to vote on the floor.” This, of course, is technically true. But in many—if not all—state legislatures, they have leverage over those that do.

This level of power is close to impossible to rein in, and DA associations serve as its primary guardian.

Last month, Pishko wrote for this publication about two bills that would implement prosecutorial oversight for elected DAs in Louisiana. “The legislation is intended to fill a gaping void that is especially noticeable in Louisiana,” she wrote. “There are limited ways in which prosecutors can be held accountable.”

Perhaps predictably, this proposal was unpopular with the LDAA. Neither bill made it out of committee.

Public Defender Foils Prosecutor’s Murder Charge in Drug Overdose

Public Defender Foils Prosecutor’s Murder Charge in Drug Overdose

On April 9, a Florida public defender persuaded a judge to drop a first-degree murder case against his client related to a fentanyl overdose last fall.

The case involves Christopher Toro, 30, who is accused of selling illicit fentanyl that resulted in the overdose death of 32-year-old Alfonso Pagan in September 2017. Seminole County prosecutors originally charged Toro with murder “which resulted from the unlawful distribution” of opium and its derivatives.

Seminole County attorney Nick Kramperth’s basis for the motion to dismiss his client’s murder charge was twofold: Fentanyl is a synthetic opioid — it is not made from opium — and the addition of fentanyl to the list of substances covered under Florida’s “unlawful distribution” law did not go into effect until eight days after Pagan’s overdose death.

From 2015 to 2016, Florida saw a 97 percent jump in overdose deaths linked to illicit opioids like fentanyl, and prosecutors have responded to the surge by charging alleged dealers like Toro with first-degree murder which, under the state law, is punishable by death or life in prison without parole.

Prior to October 1 of last year, however, Florida’s murder statute did not apply to the sale of fentanyl. Toro’s dismissal could potentially apply to at least eight similar cases that occurred in Florida before October 1, Jeff Dowdy, chief assistant public defender for the 18th Judicial Circuit in Florida, told In Justice Today.

Toro’s public defender, Kramperth, argued in his motion to dismiss that Florida’s murder statute stating that a death resulting from unlawful distribution of a drug only applied to “opium or any synthetic or natural salt, compound, derivative, or preparation of opium.” Fentanyl, Kramperth wrote, is not a “synthetic of opium,” as specified in the statute. Similarly, Jannet Brown, a crime analyst with the Florida Department of Law Enforcement and expert witness for the state, testified that “fentanyl is a synthetic opioid and not made from opium.” Circuit Judge Debra Nelson ruled in Toro’s favor and called the language in the statute “unambiguous,” that “fentanyl is not made from opium at all and essentially has nothing to do with opium.”

“The state attorney thought they would get creative with the statute,” Dowdy told In Justice Today. “Between the language in the statute and the legislative history, I think we’re on solid legal ground.”

Kramperth told local reporters, “[The judge] really had no choice but to grant the motion” to dismiss. “She followed the law perfectly.”

Further supporting the defense’s position is the fact that the bill signed by Florida Governor Rick Scott adding several analogues of illicit fentanyl to the murder statute didn’t take effect until eight days after Pagan died. “For some unknown reason, the state attorney started indicting people on the new statute before it took effect,” Dowdy told In Justice Today. “Their theory is the statute covered any synthetic of opium. But opium and opioids are two different types of drugs.”

In the context of drug distribution, this isn’t the first time that the wording of Florida’s statute has led to a dismissal. In 2009, William F. McCartney III’s first-degree murder charge was dismissed because he allegedly sold methadone that resulted in a man’s death. Like fentanyl, methadone is a synthetic opioid, not a “synthetic of opium,” as specified in the statute. The statute was updated in 2010 after McCartney’s case to specifically include methadone, but still did not apply to other synthetics like illicit fentanyl.

Toro’s dismissal is already affecting other cases that took place before October 1, such as Jamie Nelson, 35, who is accused of accepting $50 for taking Tracy Skornicka, then 41, to a dealer who sold her a lethal dose of illicit fentanyl on June 15. Nelson was charged by Seminole County state attorney’s office with murder simply for being a “middleman” in the deal.

In light of Toro’s dismissal, Dowdy told In Justice Today that he expects Circuit Judge Melanie Chase to dismiss Nelson’s murder charge. “But the state’s attorney made a surprising announcement in court,” he said. “They plan to get creative and charge her with ‘manslaughter by act’ instead,” a second-degree felony.

Dowdy told In Justice Today that he believes that prosecutors will also try to charge Toro with manslaughter. “It’s them being creative again,” he said, adding that he’s never seen a manslaughter charge applied to a case in which a person died from self-administering drugs and accidentally overdosing.

“Recent dismissals in these Florida cases illustrate the enormity of the stakes, as these defendants would have likely spent most of their lives in prison, if convicted,” Leo Beletsky, a drug policy researcher who has studied the application of “drug-induced homicide” laws for Northeastern University’s Law School, told In Justice Today.

“The stark difference between the rhetoric of ‘going after drug kingpins’ and the reality that these laws are being deployed to go after small-time dealers or other drug users calls for a wholesale re-examination of this approach,” Beletsky said.

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Why Public Defenders Matter More Than Ever in a Time of Reform

Clarence Earl Gideon’s handwritten petition for certiorari.

Why Public Defenders Matter More Than Ever in a Time of Reform

In 1963, the Supreme Court handed down Gideon v. Wainwright, which held that the government had to provide a lawyer to any poor defendant facing prison time. While often trumpeted as one of the Court’s greatest modern decisions, it has also been embroiled in controversy from the beginning. Like all Supreme Court opinions that impose new obligations on state governments, Gideon was an unfunded mandate — and, given the political unpopularity of criminal defendants, the states have aggressively gone out of their way to make sure that this constitutional obligation stays unfunded.

Critics of the American criminal justice system have often pointed to Gideon’s failure as a major cause of mass incarceration, and of mass punishment more broadly. And they have proposed myriad ways, including increasing defender funding, to try to fix or repair or improve how we provide legal services to the poor. I count myself among those who have done so, having argued that funding indigent defense nationwide is one of the few steps the federal government could take that would really make a difference (although this is obviously not something that this administration would do).

To many, realizing Gideon’s vision of effective counsel for all is seen as one of the, if not the, most important steps toward real criminal justice reform that we can take. Indeed, one of the more high-profile reform groups is Gideon’s Promise, a nonprofit that partners with public defender offices around the country to implement best practices in public defense and has been the subject of a documentary aired on HBO.

There is no doubt that the work public defenders do is vitally important, and there is no doubt that they are underfunded — both in absolute terms, and compared to far better-funded prosecutor offices. Improved funding for indigent defense should be an important part of criminal justice reform.

But what if an emphasis on Gideon raises serious problems at a more fundamental level? What if pouring money into indigent defense really wouldn’t make the sort of difference for which many hope? What if Gideondistracts us from what really matters — or, worse, what if focusing on Gideonmakes more impactful reforms harder?

Georgetown University law professor Paul Butler made just this argument a few years ago in a provocatively titled Yale Law Journal piece, “Poor People Lose: Gideon and the Critique of Rights” (a not-at-all-stuffy-law-review essay everyone should read). Butler raised several powerful points, but here I want to focus on just one of them: that mass incarceration and mass punishment are not really the product of procedural breakdowns in individual cases — which is the implicit assumption of Gideon-focused reforms — but rather the result of systemic and systematic decisions about who to arrest, to charge, to send to prison.

I think Butler’s critique is spot-on. And, even just a few years ago, it was a powerful argument against directing too much attention and resources toward Gideon. But the politics of criminal justice have changed sharply over the past few years, and so too has, perhaps, the role that Gideon can play in bringing about real change.

For Butler and others, the jumping-off point of Gideon’s limitation is something that often gets overlooked in all the discussions of wrongful convictions, Brady violations, false confessions, bad forensics, and conviction integrity units: most — perhaps almost all — who are arrested, charged, convicted, and sentenced are guilty of a crime. Our criminal laws are sprawling, open-ended codes that punish people for wide swaths of behavior. More often than not, defense work is about triage, about minimizing the harms that come from an almost-guaranteed — and legally sound — conviction.

The core problem with Gideon-focused reform is that mass incarceration is driven by decisions made by police and prosecutors about who to arrest and who to charge, not procedural issues about how the arrest is made or how the trial or plea bargain is conducted. The criminal justice system is a blunt tool, and not everyone who violates the terms of a criminal statute should be arrested, charged, convicted, sentenced.

In fact, Butler suggests that focusing on Gideon might make reforms harder, by effectively white-washing the substantive injustices of our criminal justice system, such as disparities in which groups (such as low-income Black men) face higher risks of arrests, charges, and convictions, for the same conduct.

So while evidence suggests that competent indigent defense makes a difference — what few studies we have suggest that those with better lawyers are less likely to be convicted or serve less prison time — the traditional role of public defenders is individualistic and reactive: They handle the specific cases that the police arrest and the prosecutors charge.

In other words, while improving the often-frightening procedural failings of the criminal process is important work, real reform lies far more in changing the systemic choices made by police and prosecutors. The decisions about where to deploy police, what sort of arrest policies to have, what sort of cases prosecutors get charged vs. dismissed — these are the decisions that really drive mass punishment.

This is why, Butler suggests, focusing on Gideon risks making reform harder. If everyone has a decent lawyer, then we might be less troubled by why some people are more likely to need that lawyer in the first place.

Yet, suddenly, perhaps public defenders are in a position to make these changes. Perhaps today, Gideon can serve a new, substantive function.

Over the past few years, at least in more urban counties, voters have started to push prosecutors to adopt less harsh and more progressive policies. The changes they demand are systemic, not individualistic: to no longer ask for cash bail in entire categories of cases, to stop prosecuting entire types of offenses (such as marijuana and low-level theft), and so on. Prosecutors are facing political pressure to shift from tough-on-crime to something far more “smart-on-crime”-like, and they are increasingly making promises along those lines.

But promises are just words, and sometimes it seems like prosecutors running for election or re-election are quickly learning a set of reformist buzzwords they can trot out to voters — but then struggle to implement in practice. Many observers were deeply disappointed with former Brooklyn District Attorney Ken Thompson’s broken promises on declining to prosecute low-level marijuana cases. Thompson died of cancer in the fall of 2016 and court monitors report that under Brooklyn’s current DA, Eric Gonzalez, they still see marijuana possession cases whenever they’re in court. Manhattan DA Cy Vance, meanwhile, continues to promise to stop charging people with jumping turnstiles, yet seems to keep doing so.

The potential disconnect between promise and practice has become sufficiently concerning that at least in New York City, a group of nonprofits, including a coalition of public defenders, recently created Court Watch NYC, which sends observers to courts across the city to make sure that DAs are living up to their reformist promises.

The role of public defenders is thus clear: They’re in the best position to ensure that progressive-sounding prosecutors fulfill their campaign promises. Unlike court watchers, they are present at every step of the process — not just public hearings, some of which might be held in the middle of the night — but the behind-closed-doors plea bargaining processes that resolve about 95 percent of all cases. They see the charges that prosecutors threaten and then withdraw, the factors that seem to shape prosecutors’ decisions about when they drop charges and when they move forward, and so on.

Real reform requires real data, but prosecutor offices are notoriously stingy with their numbers. About 80 percent of all defendants nationwide qualify for indigent representation, which means that while defender offices do not handle every case, they handle most, and a data-rich annual report from a public defender’s office would inevitably provide a detailed picture of what the prosecutor’s office is up to as well.

As voters, or at least urban voters, increasingly demand a new form of criminal justice, there is increasingly a role for public defenders to ensure that substantivesystemic change happens. All of this, however, takes time — and money. If public defender offices cannot fulfill their basic ethical — and constitutional — obligations to represent their clients, they certainly can’t start generating data or court-watching reports.

In fact, the role of public defender offices could expand even more. When criticized for being excessively harsh, prosecutors often like to say that they are only doing what the legislature has instructed them to do. It’s a doubly disingenuous claim, not just because “prosecutorial discretion” means that prosecutors are not required to be as harsh as the legislature permit, only that they can be — but because many of those tough laws come about from aggressive lobbying by statewide district attorney associations.

As criminal justice reform becomes more politically tenable, however, there is room for public defender offices to take on a lobbying role as well. They are well-positioned to tell legislators the stories about the costs of excessive and counterproductive harshness, to help put a human face on the costs of punitiveness — and, as lawyers, to suggest how to change specific statutes and rules to minimize those harms. But this too requires funding.

It’s worth pointing out that the proposals here would only work in counties or states with centralized public defender offices, as opposed to those that contract indigent defense to otherwise private lawyers. But that could just mean that fulfilling Gideon’s more-meaningful promise also means pushing jurisdictions that don’t have public defender offices to adopt them.

Historically, public defenders have played primarily procedural roles — profoundly important, constitutional roles to be sure, and ones that should be far better funded than they are, even if you ignore all the arguments I’ve made here. But mass incarceration and mass punishment are not really the products of procedural failings at the trial stage. They are far more the result of discretionary choices by police and prosecutors, as well as judges and legislators. Yet in this reformist moment, as voters demand smarter policies from still-opaque prosecutor offices, and as legislators seem more open to less-punitive approaches to social problems, public defenders are well positioned to play a critical role—which makes the role of Gideon all the more important.

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