"Five Faces of the Public Defender"

The title of this post is the title of this new paper authored by Scott Howe now available on SSRN. Here is its abstract:

Special stigma attaches to zealous public defenders.  They are widely viewed as undermining the public welfare, of acting immorally and of inappropriately empathizing with criminals over victims.  Poor funding for public defender offices in many jurisdictions underscores what the body politic in those places thinks of unsparingly zealous public defense.  The stigma finds sustenance in an account endorsed by zealous public defenders themselves that they function as client-centered advocates, operating largely outside the criminal-justice system, and without caring about the public welfare, about guilt or innocence or much about victims.  This scenario poses a dilemma for zealous public defenders who aim to counter the allegations or for poorly funded defender offices that seek to acquire more resources so that they can provide consistently zealous representation.

How can they rebut criticisms with which they largely agree?  This article argues that they could, in theory, acknowledge their work as multi-faceted, requiring that they sometimes serve as zealous advocates but often also in several roles that directly benefit the state.  This alternate perspective finds support in the Supreme Court’s acknowledgement in recent years that criminal justice has become for the most part a system of guilty pleas rather than of trials.  Although this strategy is the most truthful and responsive to the critics, the article finds it unworkable from the perspective of the zealous public defenders, which reveals a conundrum.  The zealous public defenders must deceive themselves that they are rebels who do not care about the public interest (or about justice or victims) to effectively serve it.  Yet, while zealous public defenders face difficulty in making their own case, the article exposes the reality and the illusion to help defend them against their critics.