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March 16, 2021

"Defend the Public Defenders: Their ability to hold on to their job should not depend on the same people they challenge in court."

The title of this post is the full headline of this notable piece recently in The Atlantic authored by Irene Oritseweyinmi Joe. Here are excerpts:

Public defense might be one of the rare professions in which doing one’s job too well can lead to being fired.  The reasons for this are structural — public defenders are tasked with an obligation they cannot fulfill without upsetting those tasked with helping them fulfill it — and the system can be fixed structurally: by creating a state-level office whose job it is to defend public defenders....

Working as a public defender can be like walking a tightrope.  Attorneys are constitutionally required to provide effective representation to their clients, ethically required to do so as officers of the court, and subject to the ordinary human desire to keep their jobs.  Other actors in the criminal process complicate the public defender’s ability to do each of these things. At times, courts set restrictive and unconstitutional bail, show little patience for the time it takes attorneys to investigate and prepare cases, and fail to hold prosecutors accountable.  Prosecutors sometimes bring so many cases that public defenders cannot meaningfully represent every client they are assigned, and then use this tactic to move cases quickly through the criminal process.  Then, the leaders of the institutions within the executive and judicial branches of government can fire or reassign a public defender when they are displeased with his or her work.  It can be a vicious cycle, where a public defender is fighting a battle against the very entity that must provide that public defender with the resources and support it needs to do so.  So who defends public defenders when they are faced with serious consequences for challenging the decisions of opposing actors, when those very actors oversee the public-defender institution?

Most states house the public defender under either the judicial or executive branch, and each placement provides its own unique challenges. The executive branch has a clearly articulated objective of enforcing a jurisdiction’s laws.  This role is in some ways similar to the public defender’s role of ensuring that law enforcement complies with both constitutional and statutory law, but it also contradicts the mandate of the public defender to protect the individuals charged with violating those laws.

The state judicial branch is tasked with advancing the resolution of the courtroom process neutrally, efficiently, and fairly.  This role can sometimes lead courts to deprioritize the public defender’s needs in larger decisions about the courtroom process, as when judges feel they must support the requests of others involved in the criminal process, such as prosecutors and victims.  Courts can also punish the public defender who acts in a manner inconsistent with the court’s view of how the process should evolve....

The obvious solution would be to make the public defender an independent institution, so it could define its own structure to best suit the needs of its client base without fear of reprisal.  But doing so would overlook the need to secure funding in a government system where all actors must compete for limited resources.  While the public defender plays an important role in the criminal-justice system and protects the rights of the public at large, its influence and political efficacy are often smaller in comparison to other executive or judicial agents.  To secure a seat at the table, the public-defender institution requires an authoritative presence that can effectively pursue its agenda within the state structure.

Instead of asking for pure independence, public defenders should seek a protector, a state actor that possesses a degree of independence but is also able to effectively advocate for the institution.  This actor’s primary responsibility would be to ensure that public defenders receive the resources they need to comply with constitutional and ethical duties. The position would also challenge the leadership in its assigned branch, including identifying practices that hinder public defenders’ ability to do their job and holding other actors accountable in the larger system.

Fortunately, the nation already has a model in place for such a position: the inspector general.  Established by statute in 1978, the inspector general is a relatively independent government office tasked with neutrally assessing whether members of the executive branch have violated constitutional principles.  The public-defender version could notify the court of constitutional and ethical violations related to the delivery of public-defender services.  This position would also reaffirm the role of the public defender as a protector of the general public, as it serves as a check on the government’s intrusion into a citizen’s life through the criminal process.

March 16, 2021 at 03:25 PM | Permalink


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