« Matthew L.M. Fletcher: Cited in the Supreme Court | Main | Prosecutors and Prison Admissions: The Main Story »

Tuesday, July 09, 2013

The Poor are Still Losing: Gideon's Empty Promise

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.   


Posted by Tamar Birckhead on July 9, 2013 at 07:52 AM in Criminal Law, Current Affairs, Film, Judicial Process, Law Review Review | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference The Poor are Still Losing: Gideon's Empty Promise :


What does it take to be a public defender? Barbara Babcock said it best in her seminal piece, Defending the Guilty, “… it’s not for everybody. Criminal defense work takes a peculiar mind-set, heart-set, soul-set.” Babcock, Barbara. Defending the Guilty, 32 Cleveland St L Rev 175, 175 (1983-4).

Gideon’s Promise (formerly the Southern Public Defender Training Center) is focused on training and supporting those unique and motivated souls who want to devote themselves to defending the poor and ostracized … the lowest of the low … criminal defendants. Gideon’s Promise is an organization that provides public defenders in over-burdened and under-funded offices with training and community. Specifically, Gideon’s Promise offers their young attorney fellows (1) the technical lawyer tool set from client counseling to specific courtroom trial skills and (2) the support of community of like-minded and dedicated professional colleagues and mentors. Those who graduate law school will the mind-set, heart-set, and soul-set to become public defenders need practical training and coping skills to sustain themselves and serve their clients as public defenders. Gideon’s Promise is filling this niche. Beyond training the line public defenders, Gideon’s Promise trains leaders from public defender offices and criminal defense clinicians at law schools around the country.

Public defenders are witnesses to tragedy – tragedy in the court system, tragedy in the lives of the clients they represent, and tragedy in their clients’ community. Public defenders toil in a system which swiftly and efficiently convicts and locks up the indigent. There are problems at each of the three stages of our criminal justice system: (1) policing, (2) the court process, and (3) punishment / incarceration. As a whole, the system functions to disproportionately stop, search, arrest, charge, convict, and punish / incarcerate minority citizens. It is true that quality representation of indigent defendants will not alone solve the pervasive problems in the U.S. criminal justice system. However, focusing on the crisis in indigent defense is an important and necessary part of a improving a flawed system. When our system provides truly zealous and effective representation of the poor, the impact spreads beyond the court process to expose problems in policing and to reduce overly harsh sentences of incarceration.

We are currently experiencing the dismantling of the federal defender program due to unequal and severe sequester budget cuts. Federal defender offices across the country are averaging 30 % reductions. The prosecutors at the United States Attorney’s Office are not subject to the same sequester budget cuts … those cuts were forestalled by a concern for the importance of prosecution in protecting law and order. As a result of cuts, federal defenders are going to experience higher caseloads, fewer resources, and lessened opportunities for community and training. There is no way around it: cuts impact the lawyers and the cuts will soon impact the ability of the lawyers to zealously represent their clients. Nationally, on a state level, state prosecution spending exceeds state spending on defense by nearly $3.5 billion annually. In California, where I practice, the budget for prosecution exceeds that of defense by roughly $300 million. We need films like Gideon’s Army to tell us what it is like in these broken systems to fight against the popular perception that resources for prosecution are more important than resources for defense.

Gideon’s Promise, motivated young attorneys, and experienced public defenders devoted to supporting fledgling attorneys … these are the antidote to the crisis in indigent defense. I was a the public defender in Washington D.C. for five years, and, for the last five years, I have had the privilege of practicing while training budding lawyers in a juvenile justice clinic at the Center for Juvenile Law and Policy at Loyola Law School in Los Angeles. Law school clinics provide excellent training for law students aspiring to become public defenders and ensure excellent representation of clients. Clinics, like those offered at Loyola in LA, like those offered by Professor Birkhead at UNC, by Professors Lasch and Sterling-Walker at Denver, and Professor Chapin at Boulder, are also an antidote to the crisis in indigent defense. These defender training programs can work together and in conjunction with Gideon’s Promise in the movement to make Gideon’s Promise a reality rather than merely an aspiration. I am a proud volunteer faculty member and mentor for Gideon’s Promise. I also encourage my students to become public defenders, while being realistic about the lifestyle sacrifices the work entails. Like Travis, the warrior public defender who was featured in the film Gideon’s Army, I think there is no better work on earth.

I recently organized a screening of Gideon’s Army with a small group of former clinic students who are now public defenders in Los Angeles and current law students in a seminar class I taught this summer. The film was an important demonstration of many major issues in our criminal justice system – collateral consequences of convictions, pressures to plea bargain, mandatory minimum sentences and lack of discretion, the use of cooperators / snitches, the personal and financial sacrifice required of public defenders, the overwhelming caseloads and inadequate resources public defenders face, the state of indigent defense in the South today, the de-humanization of criminal defendants, the lack of agency and empowerment facing indigent defendants and their families, the impact of astronomical bail price points on the poor, and the far-reaching impact of injustices to families and communities … to name a few. My students are always focused on what we need to do to change the system. Exposure of the problems, concrete and replicable solutions, and creation of public will in favor of reform … these are the answers to which we return.

As legal educators, we can afford our students knowledge about the problems in our system so that, as the next generation of attorneys, they can fight for change to create fairness and justice – as defenders, as judges, as prosecutors, as legislators, as journalists, and as activists. As a part of that legal education, we can equip the students who possess the mind-set, heart-set, and soul-set to do the work with the practical training they need to hit the ground running as public defenders. Those superiorly trained attorneys will then become resources and leaders within their offices. This same model of change employed by clinical legal education is what Gideon’s Promise is doing nationally and on a large scale. The crisis in indigent defense, and more broadly, the many failings of our American criminal justice system, can only be combated with a multi-frontal attack on the myriad problems. Gideon’s Promise is combating the specific problem of the crisis in indigent defense with a concrete and successful model. Gideon’s Promise embodies the words of Margaret Mead …. “Never doubt that a small group of thoughtful, committed citizens can change the world; indeed, it is the only thing that ever has.”

Posted by: Samantha Buckingham | Jul 18, 2013 10:16:13 PM

I write to explain why I contribute my time to Gideon’s Promise. Like others who have commented, I am a trainer in the program. I do it precisely because it is a community of defenders who are dedicated to systemic change. Russell Gabriel hit the nail on the head in describing the transformative power of Gideon’s Promise as flowing from its “value centered training.” I’ll try to describe three ways in which I believe this to be true.

First, the emphasis on client-centered defending is, I find it sad to say, a radical one. A commonly held view of defense lawyering holds that there are only three choices that “belong” to the client – whether to plead guilty, whether to request a jury trial, and whether to testify. Everything else is up to the lawyer. Gideon’s Promise flips that calculus on its head, rejecting lawyer-centered lawyering at every turn. This is a redistribution of resources that is transformative not only because it empowers individual clients to determine the trajectory of their cases (and like Robin Walker Sterling, with whom it is my privilege to teach, I believe individual acts can transform not only clients’ lives but lawyers’, jurors’, and judges’ as well), but because on a large scale this is a redistribution of legal resources from the elite lawyer class to their clients.

Second, because Gideon’s Promise trains lawyers to attend to the values that are expressed through our criminal justice system, these lawyers are not “cogs” in the system. A “value neutral” training system would produce such cogs. But lawyers who are trained to see what is actually going on beneath the superficial mechanics of the humdrum defendant processing system will, as Tamar Birckhead hopes, “crash the system.” They will file motions challenging the way things are routinely done. They will take more time, when it is needed, to make sure their client retains control, instead of acquiescing to the system’s demand that the lawyer take control.

Third, Gideon’s Promise trains lawyers to reflect on, question, and transform their own values. Birckhead is worried that the film, “Gideon’s Army,” will induce lawyers to become public defenders for the wrong reasons. The opposite is true of Gideon’s Promise, which requires lawyers to reflect on their own motivations for doing this important work, as part of the program’s mission to produce resilient lawyers who will persist in the face of the adversity so well documented by the film. Travis, the young lawyer in the film who is in his first year of defense work, already recognizes that singlemindedness can’t get you through the day. The goal of helping individuals won’t always get you through, and neither will a view of yourself as a warrior in the new civil rights movement. But a lawyer like Travis, who can recognize that there are many reasons to do this work, and can draw on multiple values and move flexibly between them, will survive. Teaching lawyers to be self-conscious about why we do this work is a valuable component of the support system Gideon’s Promise delivers. The hope is that these non-cogs in the broken system won’t need to be replaced any time soon.

Posted by: Christopher N. Lasch | Jul 18, 2013 9:21:16 AM

This is the 50th Annivesary of the Gideon decision, so I re-read Gideon’s Trumpet, Anthony Lewis’s Pulitzer-prize winning narrative of the unbelievable story of how a poor man’s handwritten letter to the Supreme Court became one of the transcendent decisions of our time. Or, as a friend of mine put it, “the book that has tricked generations of people into going to law school.”

By now we all know about the Warren Court’s courageous decisions that dismantled the scaffolding of Jim Crow, one indignity at a time. Gideon and so many other rights-based cases were born of that same concern about racial injustice. Burt Neuborne has a fantastic piece in the Supreme Court Review called “The Gravitational Pull of Race on the Warren Court” on this topic.

Reflecting on the 50th anniversary, a lot of commentaries have decried the many profound and troubling deficiencies of our nation’s criminal justice system: for the clients, persistent racial disparities at every discretion point; for public defenders, staggering caseloads, low wages, low resources, and little respect. I’ve lived (when I was a public defender in Washington, DC and now as a clinical professor teaching criminal defense), heard and read about the gaps between what the criminally accused need and what their public defenders can actually provide. The gap is almost overwhelming, and lends real credibility to the narrative that public defenders can do only so much. That narrative is so seductive, in fact, that I have always been suspicious of it. I have seen instances of lawyering that, for a moment, do seem to change the system – even if it’s just for a moment, for a single client, in a single courtroom. In one courtroom, at the juvenile defense attorney’s urging, a judge orders a probation officer to buy a juvenile respondent a prom dress to reward her for finishing her junior year. In another courtroom, a judge at sentencing hears the prosecutor say that the defendant is facing years of back up time, then turns to the defense attorney, and asks her, “In light of the prosecutor’s representations, is anything you have to say at all of moment?” The defense attorney, seemingly unphased by the gasp in the courtroom at the judge’s dismissiveness, answers, “It is to Mr. [Client], whose compliance while on release has been, literally, perfect,” and continues her argument. In still another courtroom, a defense attorney wins a motion on Brady grounds, litigated over several years, on behalf of a man who has been in prison for 34 years.

How are all these things connected to Gideon’s Promise? The way those victories, large and small, come about stems, in part, from being part of a collective consciousness. Like the zeitgeist that fueled the Civil Rights Movement, Gideon’s Promise is at the eye of an empowerment narrative for public defenders. Each summer I am part of the faculty for the program, which convenes in Birmingham, Alabama in August, and I see that that’s what it provides. In short, being part of the faculty at Gideon’s Promise confirms for me that that narrative about public defender powerlessness is false. Gideon’s Promise: creates a supportive community of lawyers who will reject a culture that disrespects poor people; who will become leaders in criminal and juvenile indigent defense; who will hold, in their hearts, a different vision for how the system processes people.

In short, Gideon’s Promise is the kind of long-view medium for social change that can start to meet the issues in our current criminal justice system. If we are lucky, it will trick a new generation into going to law school. The zeitgeist has got to start somewhere.

Posted by: Robin Walker Sterling | Jul 16, 2013 12:00:28 AM

Violeta and Russell: Thanks for commenting. It truly sounds as though Gideon's Promise is doing valiant work. I've been a public defender myself for over 20 years, I know some of the trainers with the organization, and I've met Jon Rapping and respect him and what he's trying to accomplish. My blog post was not meant as a "mini-review" of the film, "Gideon's Army," which I'd encourage people to see, or as a vehicle by which to "take to task" the organization, and I apologize if it came across that way -- particularly to those of you who are personally invested in and committed to the work of the organization. Instead, I used the film as merely a springboard for my musings on the work that I've given my life to, and a way to generate discussion about the broader forces at work in the criminal justice system.

Also, I respect Russell's view that organizations like Gideon's Promise can -- and do -- help change cultural attitudes, rates of retention and level of commitment by PDs themselves. There never can be too many organizations with that mission. I, myself, was quite lucky that I received comprehensive training as a new PD in Massachusetts twenty years ago, and today I am involved in the top-notch training that PDs receive in North Carolina through the UNC School of Government and other entities. But, of course, I am certainly aware that this is not the norm in many other places in the country, particularly in the South.

In any event, thanks again for taking the time to comment -- both here and on the Juvenile Justice Blog.


Posted by: Tamar Birckhead | Jul 15, 2013 11:09:53 PM

A few remarks in response to Professor Birckhead’s musings on indigent defense: It seems to me that creating a strong system of public defenders is, in itself, a form of systemic change. It also seems like systemic in the legal system, especially in the part that has such a large impact on the poor, has at least some potential to foment even larger systemic change. More on this below.

Birckhead’s essay is in part a mini-review of the film Gideon’s Army, and she takes it to task for promoting the non-profit organization, Gideon’s Promise, which was formerly called the Southern Public Defender Training Center, though it appears that Birckhead is not otherwise familiar with the organization. I’ve been volunteering as a trainer of new pd’s with Gideon’s Promise for the last several years, so I’d like to make a few comments in support of its work and at the same time respond to the idea that systemic change cannot be achieved through strengthening the public defender system. The film does an excellent job of telling the public about public defenders through the eyes of three new public defenders, and helps educate the audience about public defenders, their clients, and the criminal law system. While the Gideon’s Promise organization is featured to some extent, it’s not the main attraction of the film, so it is not surprising that people would need more information.

I appreciate Professor Birckhead’s mention of Paul Butler’s point about formal rights being meaningless without substantive improvements in living conditions – you can’t eat rights. But the fact that you can’t eat rights needn’t lead to the conclusion that rights should be tossed out or ignored, or that rights are great for rich people but that poor people shouldn’t bother with them. Unfortunately, that is exactly the message that the criminal law system delivers to poor criminal defendants every day – at least in most jurisdictions. It’s not the message of our abstract principles, but it is the message of the legal machinery that implements those principles. And while it may be that the legal system’s disdain for poor people, and for lawyers for poor people, is merely reflective of society, it is also plausible that the legal system helps construct that disdain. That is to say, the legal system is not just a messenger of society’s disdain for the poor, it helps author that disrespect by modeling it.

In the few minutes that Congressman John Lewis’ appeared in the film, he spoke from experience about the role of criminal defense lawyers. In the 1960’s John Lewis was arrested 41 times protesting segregation. In Gideon’s Army he recalled that experience and in particular he recalled the lawyers who came and helped him and his colleagues get out of jail. If you know the story, you know that it was not always the same lawyers. Because in Southwest Georgia there was one lawyer, and in Southern Alabama there was one lawyer, and in Atlanta there were more, but only a few. Those few lawyers who came to the rescue of civil rights protestors were courageous souls, who knew very well what it meant to work against a legal culture that tells you not to stand up, not to argue, not to file that motion, not to take that case. And the legal culture that told them not to practice law was simply the legal representative for the same culture that told those lawyers where to sit on the bus.

Though Lewis’ appearance in the film is a cameo, his image and the history it represents provide more than cameo support for the systemic change argument. The legal system, by failing to establish a robust system of public defenders, is a major participant in the messaging that the poor don’t count. A strong public defender system is not just a group of lawyers zealously representing individual clients, it is an organization with a presence both in court and out. It provides organizational support for advocacy in the statehouse as well as the courthouse. It gives individual public defenders and PD offices support in standing up for funding, for ethical standards, for reasonable caseloads, for investigative resources, and for all of the other parts that constitute a robust public defender system. People who think otherwise do not understand what a strong administrative system of indigent defense representation can be.

The Gideon’s Promise approach is grassroots. Jon Rapping, the director of Gideon’s Promise, is a skilled public defender trainer. When he moved to Georgia (after years as the trainer for PDS in DC), he ran smack into a culture of resistance from some sectors of the existing system of indigent defense representation. Rather than wanting to further zealous advocacy for indigent defendants through Georgia’s new public defender system, these lawyers saw nothing wrong with meet ‘em and plead ‘em representation. This was the culture of representation not just in isolated pockets, but in many places around the South. It still is, though the South holds no monopoly in this regard.

When recent law grads land in public defender offices that practice in this way, they either quit after a year or they acquiesce to the local traditions, perpetuating a culture of representation that is a mockery of the adversarial process. Rapping has taken on the project of interrupting that perpetuation. Necessarily, this goes well beyond the trial practice training he was accustomed to delivering. Gideon’s Promise is trying to instill an alternative set of lawyering values – values that are not so different from those values that Monroe Freedman, and for that matter any legal professions class, espouse, but seasoned with the understanding that reality will push back hard against advocating those values and that lawyers need to develop methods for holding onto those values while practicing under far from ideal circumstances.

In terms of method, Gideon’s Promise intentionally designs “value centered training” (my term, not theirs). It integrates lawyering values throughout the training program, including exercises designed to develop a client centered approach, rather than one that is efficiency-of-the-process centered, or judge centered, member-of-the-local-bar centered, self-centered, etc. A second cornerstone of their approach is to provide an alternative support community for assistant public defenders who are isolated in offices, both rural and urban, and who are at risk of losing the vision for zealous advocacy that fueled their desire to be public defenders in the first place. In short, Gideon’s Promise defines public defender training as a contest of values, among other things.

That strikes me as an effort at systemic change, within the legal system. I agree that larger systemic change is the ultimate project, and any movement in that direction is incremental at best, but I would not be so quick to discard the possibility that structural change of the public defender system has a role to play in substantive improvement in the structure of poor communities. A good public defender office can – and should – be a good community advocate. This vision is not unique, nor is it new. See, e.g., Justice Douglas dissent from the denial of cert. in Hackin v. Arizona, 389 U.S. 143 (1967).

But even without that larger, “ultimate,” goal, Gideon’s Promise is worth supporting. I worked in PD offices, state and federal, in various capacities for 17 years. Now I’m a clinical law professor. When I started as an assistant PD we had no training at all – of any kind. We learned, haphazardly, by going to court and trying to learn as best we could, though the public defender would be the only lawyer in the room other than the prosecutor and the judge, so we were not even learning by observing more experienced criminal defense lawyers.

Now I volunteer with Gideon’s Promise because it is the best training I’ve seen, and its model is strategic with respect to building a robust public defender system. Its mission is not merely to train lawyers, though it seeks to accomplish its mission through the lawyers it trains. It understands the value of community, and public defenders from across the county volunteer to train and mentor new defenders, and themselves become part of the supportive community that, as I mentioned, is one cornerstone of the project. These volunteers include several chief public defenders from the South who believe it is possible to change the culture of public defense. Particularly relevant to this listserv, several criminal defense clinicians are among the volunteers, and Gideon’s Promise has much to offer us with respect to clinic goals, design and instruction.

In sum I would say that regardless of one’s posture with respect to long term structural change, supporting Gideon’s Promise is a way to support a vision of robust public defender organizations that push back against the excessiveness, the thoughtlessness and the inhumanity of our criminal law system.

Posted by: Russell Gabriel | Jul 15, 2013 10:33:06 PM

Gideon’s Promise is to public defender offices today what Charles Hamilton Houston and the NAACP was to the civil rights pioneers in the 1950’s when they said THINGS CAN BE DIFFERENT. It is worth all of our support.

It would be wonderful if our society arrested, prosecuted and incarcerated less poor people than we do. That is a worthy goal and an ambition that we should never lose sight of. In the meantime, poor people charged with crimes need lawyers who fight, every day on their behalf, in a meaningful way that our society, justice and the Constitution demands.

The three lawyers portrayed in “Gideon’s Army,” Dawn Porter’s film about public defenders facing enormous challenges in the South, are part of a larger movement that is working to change the way that poor people are processed through a criminal justice system that treats them as little more than numbers on a page. The film is called “Gideon’s Army” because those three lawyers are not alone; they are part of an organization that is 200+ strong, made up of fellow public defenders, former public defenders, faculty and mentors who both support each other on a daily basis as these lawyers do their jobs, and work together to bring about a sea change in the way that poor people will be represented in criminal court.

Gideon’s Promise is an organization that was begun by Jon Rapping, a former public defender in Washington, D.C., who knows first-hand about the day-to-day struggles facing lawyers who defend the poor, and about the bigger societal issues surrounding the mass incarceration of people of color in this country. Jon and his wife, Ilham Askia, went to the South and witnessed first-hand how poor people are afforded little justice in courtrooms where the judges, the police and prosecutors are indifferent to the lives they disrupt and the communities they shatter by targeting and incarcerating ever-increasing numbers of the poor. So Jon and Illy did something about it.

They started small, with a tiny faculty and sixteen new lawyers who had taken jobs working in two public defender offices in the South that could not afford to train them. Today, they are welcoming dozens of new lawyers every summer in Birmingham, Alabama, to begin a three-year program with intensive training sessions every six months and mentorship in between. This is accomplished with a committed core faculty who return several times a year for follow-up trainings. Lawyers who graduate from the initial training program have the option to sign up for a graduate program, where they learn to provide support for newer lawyers as they develop into leaders. The bigger picture is always in mind, as Jon and Illy developed a leadership component in which they meet with the chief public defenders from offices across the South twice a year, to talk about how we can work to collectively drive transformation in the field of indigent defense. They have included training directors from public defender offices across the country, as well as law professors teaching criminal defense clinics, to discuss strategies for steering students towards rewarding opportunities in lesser-resourced offices that desperately need smart, driven lawyers to join their ranks.

I am one of those criminal defense clinicians that has joined Jon, Illy, the faculty and the lawyers of Gideon’s Promise to bring about real change for those who are arrested, persecuted and herded through the system in the South. We mentor and support the lawyers who are crashing the system every day by demanding due process, filing creative motions, and stating, “my client is PRESUMED INNOCENT of these charges, and I’m asking that he be given a reasonable bond and a fair trial.” I have joined them because I am a public defender to my core, and I know that they ARE making a difference, every day, for their clients, and those that come next.
Jon Rapping, the lawyers and the faculty at Gideon’s Promise are pushing and changing the face of indigent defense. I believe that these efforts to change the way that the accused are treated by our “justice” system is the new civil rights movement, and I think Paul Butler and Michelle Alexander would agree. The lawyers who are part of Gideon’s Promise and come back every year to learn about how to be better lawyers, are the personification of Charles Hamilton Houston’s statement, that a lawyer is an agent for social change. A lawyer, according to Houston, is “either a social engineer, or a parasite on society.”

Posted by: Violeta Chapin | Jul 15, 2013 9:25:30 PM

What it seems here is that you are saying is that the poor need to be saved from their behavior. Crashing the system and jury nullification are methods to protect the guilty, not the innocent. You say the poor are hurt, but you don't say the poor are virtuous, but you do claim that the poor are disproportionately hit by the criminal justice system.

Not much of an arguement. OJ should go free because white people are racists. That is the essence of your arguement. And it is abundently clear by poor you mean non-white.

Do you really want to live in that world where violent thugs run free in hopes that you or your own won't be a victim? You sound like that San Francisco liberal who assured her child that Muslim terrorists would never kill her because they were not the people Muslim terrorists were targeting.

Posted by: Federale | Jul 9, 2013 6:12:17 PM

Patrick: Thanks for your comment. No, rights discourse is certainly not pointless. On an individual, case-by-case level, having a lawyer is preferable to not having one, as is having the full panoply of other procedural and Constitutional rights owed to criminal defendants. I just worry when the conversation stops there, because even if every indigent client had the "best" defense available or if Miranda rights were regularly given regardless of custodial status, it still wouldn't change the fact that we are warehousing poor people of color in our jails and prisons at an alarming rate that increases exponentially with each passing year.

As for Monroe Freedman's work, I support it wholeheartedly, as couching our refusal to serve as willing cogs in the broken indigent defense machine in the ethical rules and professional standards is very appealing. So is reminding the court that being forced to go forward when unprepared will result in a violation of the client's Sixth Amendment right to effective assistance. Having had the experience of making some of these arguments in actual courtrooms, however, I know that there is no magic bullet. Judges take note of your objection, overrule it, threaten to hold you in contempt, and before you know it, you've succumbed to the pressure and returned to old habits of capitulation and compromise. This is not an excuse but a reality that is important for scholars to recognize. Also, taking action of this sort will only succeed if it is part of a broad-based strategy involving entire PD offices. With PD administrators under the gun (so to speak) from state legislatures that are squeezing them dry of resources, they are loathe to make waves. Sad but true.

Thanks again for your comment, and I'll try to get a copy of Professor Freedman's article.

Posted by: Tamar Birckhead | Jul 9, 2013 6:12:11 PM

Strunkl: Thanks for the comment. No, I am not suggesting that criminal defendants aren't guilty of something -- maybe not the precise crime charged, but in most cases a related or lesser offense. Given that, I'm intrigued by your suggestion that there be more across-the-board prosecution of lawbreakers, and that this resulting impact (perhaps) on white folks and people of means would catalyze a revolt of sorts against the current biased regime. In other words, if the people with cultural capital are impacted in the same way as those on the margins, there is a better chance that things will change. An interesting proposal, but given the current degree of over-criminalization, is that really what we want? You may be right that lawmakers will only have the will to repeal current legislation if their constituents (i.e., those who vote and donate to their campaigns) are impacted directly, but need the solution be one that is so counterproductive? Do we really want more young people, for instance, prosecuted for terrorist threats as a result of a sarcastic Facebook threat (see http://www.cnn.com/2013/07/02/tech/social-media/facebook-threat-carter).

As for directing energetic new lawyers to the prosecutor's office, I'm all for that -- and in fact, as many of my students who have practiced in the UNC Juvenile Justice Clinic go on to become prosecutors as they do public defenders. My concern is that entry-level ADAs typically have little discretion and soon learn that moving up the ladder requires them to follow the directives of their higher-ups, very few of whom would support such an approach. Besides, wouldn't this move to widening the net also require police officers to change their attitudes, policies and procedures as well as take conscious steps to overcome implicit bias? This is perhaps yet another insurmountable hurdle.

It's certainly a thought-provoking suggestion, though not easily effectuated.

Posted by: Tamar Birckhead | Jul 9, 2013 5:45:04 PM

First, while "rights discourse" may not have the effects we would hope to see or meet the expectations some place on it, I surely hope that doesn't mean we think it's useless, that it serves no purpose. In any case, I'm curious as to what you think of Monroe Freedman's proposal (the article is not available for download at SSRN but I'm sure Monroe would send it to anybody who asks):

In 'An Ethical Manifesto for Public Defenders,' Freedman calls upon public defenders to 'cease to be an essential part of a fraudulent cover-up of the denial of fundamental rights to countless poor people who are caught up in a criminal justice system that is unethical, unconstitutional, and intolerably cruel.'

Citing universally accepted ethical rules and professional standards for criminal defense lawyers, Freedman argues that every time a public defender accepts an assignment of one too many clients, 'she is involved in a conflict of interest, because total loyalty cannot be given to each client in each case.' In addition, he charges that a public defender who is overloaded with clients because of under-funding and under-staffing of her office is violating ethical rules relating to competent representation as well as the constitutional guarantee of effective assistance of counsel.

Freedman calls upon public defenders to decline overloads; to report to the appropriate disciplinary body any supervisor who orders a defender to undertake an overload; to seek permission of the court to decline an overload; to report to the appropriate judicial disciplinary authority any judge who orders a defender to assume an overload; to put on the record that the defender is not able to give competent, conflict-free representation to the new client; to advise the client that the defender does not know enough about the case to advise the client regarding a plea; and, if the client elects to plead guilty, to put on the record that the defender has not been able to competently represent the client regarding the plea.

While noting pragmatic justifications for taking these actions, Freedman argues that public defenders who did so would be doing nothing more or less than complying with their ethical obligations to their clients and to the administration of justice."

Of course this is not a "solution" to all that ails our criminal justice system, but it is certainly one strategy that PDs could adopt.

Posted by: Patrick S. O'Donnell | Jul 9, 2013 9:38:29 AM

I haven't given this as much thought as it deserves, so please forgive me if my comments are half-baked.

I don't think you are arguing that poor and/or minority defendants aren't guilty of the crimes they are charged with; only that they are charged and punished differently (more severely) than others in our society. Assuming that both of these things are true (those charged are frequently/often guilty, and enforcement/punishment is biased), isn't another solution more/better enforcement of criminal law against others in the system? Under this view, there could be more value in sending young, talented, idealistic lawyers to the prosecutor's office, not the PD.

Your argument is the idea that the law is unfair (as applied). You note Butler's call for jury nullification as a way to level the playing field. But wouldn't charging and sentencing the affluent in a manner similar to the poor lead to the same result of equality? Moreover, it seems to me that the most likely long-term result of increased prosecution and punishment of more mainstream defendants would be to force the public to take a hard look at the criminal law, and perhaps modify the laws that impose draconian punishments for non-violent and drug crimes.

I imagine a response analogous to the Congressional response to the TSA delays following the sequester: once the problems had an impact on the Congress and its most visible constituents, it was quickly addressed. Similarly, if wealthy defendants -- charged with insider trading, for example -- were sentenced or offered plea agreements analogous to the punishments meted out for drug offenses, for example, the problems with the sentencing and plea systems would become much more visible, and therefore more likely to be addressed.

Anyway, this is just an initial reaction to your comments, and is not meant to diminish or even contradict your excellent post. I'm interested in hearing what you think.

Posted by: strunkl | Jul 9, 2013 8:44:20 AM

The comments to this entry are closed.