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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.

Data Shows Police Brutality in America is Getting Worse — 2018 Could Be the Most Deadly in Years

Demonstrators rally in protest of the police killing of Saheed Vassell in Brooklyn
Drew Angerer / Getty

Data Shows Police Brutality in America is Getting Worse — 2018 Could Be the Most Deadly in Years


“Police brutality in the United States is not worse. Phones and social media just make it feel that way.”

I see and hear some version of that thought pretty much every single day.

It’s a lie. It sounds good. I wish that was what we were dealing with right now. But it’s not.

See, some things are hard to measure.

Racism itself is difficult to measure. We can measure hate crimes — which are absolutely an indicator. We can measure reports of discrimination. We can measure the number of times hateful words are being used across the internet. Those things all help us measure racism, but it can sometimes be nebulous. Some of the most destructive forms of racism — like being denied a home loan or being passed on for a job where you are the most qualified candidate — are hard to measure in real time.

Police brutality is not that.

We can measure it. We can track it. In fact, every single day of the week, I study every single case of every single person who was killed by police.

Each case is unique. I know they seem to all blend and blur together sometimes, but each victim, each story, each city, each cop, each police department, each circumstance is unique.

But the one thing I can measure with absolute certainty is whether or not the number of people killed by police in this country is rising or falling. That’s not esoteric. It’s not theoretical.

And when people say things like, “Police brutality is not getting worse, social media and cell phones just show it more,” I know why they think that.

Social media and cell phones have indeed taken what was the secretly lived reality for people in this country — it’s taken that horrible reality and made it mainstream.

Truthfully, until 2014, when police killed Eric Garner and Mike Brown and John Crawford and Tamir Rice, most stories of police brutality lived in the shadows. Most of us would struggle to name a single person killed by police in 2011 or 2012 or 2013. So yes, it’s true, cell phone cameras and social media make police brutality more known, but I am here to report to you the painful fact that the problem is actually getting worse.

According to Killed by Police, a website that has painstakingly tracked police killings since 2013, there have been more police killings thus far this year than in the same timespan in any of the last five years. That means the problem is getting worse. It doesn’t just feel worse. It’s not just the cameras and the hashtags. It’s actually getting worse.

And it’s important for us to acknowledge this reality because I think it actually feels like it’s getting worse. That horrible feeling is backed up by measurable facts.

On the heels of the racist murders of Trayvon Martin and Jordan Davis, we entered 2014 with our nerves already frayed about what was going on in this country. When police in New York, Ohio, and Ferguson then killed Eric Garner, John Crawford, and Mike Brown — three unarmed black men — in a span of three weeks in the summer of 2014, a movement was sparked.

And so it may feel like 2014 was the worst year for police brutality because in that year we became activated to how serious the problem was and we learned more of the names and stories. But this year, despite all our activism around police violence, is likely to be worse.

By April 15 of 2014, at least 293 people had been killed by American police. By the end of the year, the number totaled 1,114.

By April 15 of 2015, the number had increased to 350 people killed by police. By the end of the year, the number rose by a staggering 108 fatalities over the year before to 1,222 people killed by American police.

By April 15 of 2016, the number declined slightly to 348 people. By the end of the year 1,171 people had been killed by police — a drop of 51 people.

Now, we have to remember, those may just be numbers for us, but many of us celebrated when we saw that drop because those are 51 lives — 51 mothers and fathers, sons and daughters, who are still alive.

By April 15 of 2017, the first year of the Trump administration, with 346 people killed by police, it looked like the numbers were going to stay steady. But by the end of the year, with 1,194 people killed, there was an increase of 23 people over 2016.

And this year is worse. We’re up to 378 people killed by April 15, the highest yet. If this trend continues, this could be the first year tracked by the site where we have 1,300 people killed by police in the United States.

It was my long-held belief that police brutality would increase under the Trump administration. While nearly all policing decisions are made at the state or county level, Trump has already signaled to police that he is in their corner and has made remarks suggesting that he didn’t really mind a little police brutality here and there. The Department of Justice meanwhile made clear last year that it wouldn’t be spending its resources to hold corrupt police departments accountable when it ended a DOJ program that scrutinized them. Now a recent decision from the conservative-majority Supreme Court has doubled down on protections for police who use force even in situations where it was not called for.

These actions each have a trickle-down effect and it appears we are now living in that effect. In spite of previous police rhetoric claiming they no longer felt comfortable using force, they clearly do. The “Ferguson effect” was a lie. Police are using lethal force even more than in 2014. It hasn’t slowed down — it has sped up.

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In Louisiana, Threatening to File a Complaint Against Police Can Lead to a Five-Year Prison Sentence

Livingston Parish Sheriff’s deputies
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In Louisiana, Threatening to File a Complaint Against Police Can Lead to a Five-Year Prison Sentence


On April 30, 2015, William Aubin Jr. was at home with his wife in Livingston Parish, Louisiana when a patrol car from the sheriff’s office pulled onto his street. The deputy, William Durkin, was there to investigate a reckless driving complaint. Aubin wasn’t involved in the incident but he knew about it and went outside of his home to speak with Durkin. During a vulgar and combative conversation, according to Aubin, Durkin repeatedly called Aubin a “pussy.”

“I’m calling your supervisor,” Aubin said. “I’m gonna get you fired.” Aubin took out his cell phone, called the sheriff’s department, and started walking back towards his house. But before he made it inside, Durkin arrested him. The charge: intimidation of a public official — a felony that in Louisiana carries a maximum penalty of five years’ imprisonment.

The 21st Judicial District Attorney’s Office (whose jurisdiction includes Livingston Parish) ultimately declined to prosecute Aubin. But in a lawsuit filed in April 2016 in the U.S. District Court of the Middle District of Louisiana against Durkin and his supervisor, Sheriff Jason Ard, Aubin challenged the constitutionality of the statute that led to his arrest. The statute prohibits “the use of violence, force, or threats … with the intent to influence [an official’s] conduct in relation to his position, employment, or duty.”

The statute’s constitutionality was also called into question in a December 2015 incident in nearby Tangipahoa Parish, when officers pepper sprayed a man named Travis Seals even though he was already in handcuffs. After telling the officers he was going to file a complaint against them, he too was charged with public intimidation. Seals then launched his own lawsuit, also in federal court, challenging the constitutionality of the statute.

Louisiana Attorney General Jeff Landry intervened in both cases to defend it. But in the past year, federal judges in the two cases have called the statute unconstitutional. In a September 2017 ruling, Chief Judge Brian A. Jackson of the United States District Court for the Middle District of Louisiana pilloried the application of the statute in the Aubin case. “The right to criticize the police without risk of arrest distinguishes a democracy from a police state,” he wrote.

In the Seals case, Jane Triche Milazzo, a judge in the United States District Court for the Eastern District Of Louisiana, ruled last July that the statute violates the First Amendment.

“The Attorney General does little in the way of arguing that [the law] is constitutional as written or in overcoming the presumption of unconstitutionality,” Milazzo wrote. She noted that the statute broadly criminalized “threats to engage in lawful conduct such as, criticizing a police officer, writing a letter to the newspaper, filing a lawsuit, voting for an official’s opponent, or filing an ethics complaint.”

Landry has appealed her ruling to the United States Court of Appeals for the Fifth Circuit. His office did not respond to requests for comment.

Kearney Loughlin, the New Orleans-based attorney representing both Aubin and Seals says that the statute has become a “sort of a hammer that the police officers can use” since it was ratified in 1942. “You get a higher bail because it’s a felony,” he said. “It’s a more serious felony than battery on a police officer. You can punch an officer and not face the same ramifications.”

According to Loughlin, higher bail means that often many are jailed simply because they can’t afford to purchase their freedom. Loughlin also says that prosecutors may be using the law against defendants arrested for less serious offenses, such as public intoxication, in order to leverage them into pleading guilty to lesser charges.

In August 2017, the ACLU condemned the statute after it was used in the case of a Northern Louisiana man who raised his middle finger to a state trooper. “Among the freedoms this country provides is the right to criticize the government and public officials, including police officers,” wrote Marjorie Esman, who was then the executive director of the ACLU of Louisiana.

Sheriff Ard, one of the defendants in the Aubin lawsuit, argued in court filings that the statute is necessary to protect public officials from threats and coercion. “The government certainly has a substantial interest in ensuring that such threats are not allowed to influence the behavior of police officers and other officials,” Ard’s office wrote in a memo submitted to court in January 2017.

Not everyone in law enforcement, however, agrees that the statute is necessary to ensure the safety of public officials. Twenty-first Judicial District Attorney Scott Perrilloux recently told the Advocate that there are other laws that his office can use to fulfill the statute’s original aim — protecting public officials from true threats and coercion. Perrilloux did tell the newspaper, however, that he believes that the basis for the statute is sound.

But Seals’ and Aubin’s attorney Loughlin maintains that the statute’s broad reach is a clear violation of constitutional protections. “Ultimately the case is, can you threaten to do something lawful and go to jail for it, or is that protected by the first amendment,” Loughlin said. “That’s what this comes down to.”

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