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June 17, 2025
"Public Defenders and Collective Action"
The title of this post is the title of this new paper available via SSRN and authored by Nirej Sekhon. Here is its abstract:
It is clear that American carceral policy is excessively harsh, but it is unclear how to bring about the dramatic transformations required to fix it. Prosecutors, police, and other carceral interests have outsized influence on law and policy. Collective action problems prevent the group with the greatest interest in systemic reform -- those directly targeted by carceral interests -- from seriously challenging those interests. Neither incrementalist reformers nor abolitionists have offered plausible solutions for this structural impediment to systemic reform.
This Article contends that the solution lies with public defenders. They are uniquely situated to advance systemic reform in the legal, policy, and political arenas. More than any other existing institution with potential influence in those arenas, public defenders' interests align with those directly impacted by carceral policy. Public defenders have been overlooked as systemic reformers because they are traditionally seen as serving an individual defendant's parochial interest in avoiding conviction. Sixth Amendment jurisprudence has idealized and entrenched this narrow framing of the defenders' role. This framing misconceives both the nature of the State's carceral power and public defenders' potentially critical role in constraining it. Scholars, policymakers, and activists should reject the narrow framing and make defender empowerment the centerpiece of their reformist agendas.
June 17, 2025 at 11:16 AM | Permalink
Comments
Given that the vast majority of defendants are, in fact, guilty, I think framing the defense attorney's job as avoiding conviction odd.
I also wonder if someone who tried this gambit, of forcing cases to trial in order to aide some clients at the expense of those who do go to trial, would not be committing malpractice.
Posted by: Soronel Haetir | Jun 17, 2025 11:31:24 AM
Soronel,
That's a pretty glib statement. We're all guilty of SOME things, some of which are crimes and others not. Your claim assumes that which has to be proved; that is, you're "begging the question".
Many indictments charge multiple crimes and every crime has (usually multiple) elements. It is the job, or burden, of the prosecutor to prove each and every element of every crime charged. If the prosecutor cannot meet this burden, then the defendant is not, in fact, guilty, variously in whole or part.
Part of the defense attorney's job is to force the prosecutor to satisfactorily meet his burden. When 90%+ of cases plead out, with a robotic allocution or recitation of "facts" by the defendant, we encourage investigators and prosecutors to get sloppy, to abandon the discipline and integrity that enables them to meet their evidentiary burden, and encourage judges to be inattentive to said indiscipline and loss of integrity.
I wondered after the dismissal-with-prejudice of the Alec Baldwin _Rust_ case over a Brady violation whether that outcome shocked New Mexico prosecutors and detectives, and whether the handling of exculpatory evidence in that case was "standard operating procedure", or simply informal common practice, widely thought to be harmless to the interests of justice. With what frequency does the New Mexico trial bench find Brady violations at all?
Baldwin's attorneys AVOIDED malpractice by trying that "gambit", and forced the prosecution to confront its evidentiary burden. Recall that the special prosecutor assigned to the case (Erlinda Ocampo Johnson) resigned because she felt that she could not do so, but was commanded to proceed anyway. She similarly avoided malpractice by refusing...and, I would guess, sharply limited her future career prospects in New Mexico's public sector. All she had to do was play ball, and notch a win by perpetrating injustice.
Posted by: Frank Fosdick | Jun 17, 2025 3:50:45 PM
The basic ethical rule is that attorneys have a duty of loyalty to the client.
If the attorney believes that it is in this client's best interest to go to trial, then the attorney's job is to advise the client that he should go to trial.
If the attorney believes that it is in his client's best interest to take a plea bargain, then it's the attorney's job to recommend that the client take the plea offer.
In either case, the attorney has a duty to notify the client about the plea offer and to tell the client the pros and cons of taking the plea offer.
What is being proposed here is that attorney's should advise clients to go to trial even if it would potentially screw the clients to benefit other potential clients (or clients of other attorneys). Taking into account the interests of other defendants is pretty close the definition of a conflict of interest and should, at the very least, lead to the disqualification of the attorney from the case and can lead to serious discipline of the attorney.
But when you are talking about waging war on the system, the cannon fodder (i.e. your clients) are expendable in the name of the greater good.
Posted by: tmm | Jun 17, 2025 5:10:17 PM
Once again, we get Gratiano speaking an infinite deal of nothing. SH makes the point that public defenders going to the mat will often harm their clients. We are then treated to Gratiano making niggling points and going off on tangents and cherry-picking one case.
Posted by: federalist | Jun 17, 2025 5:14:07 PM
tmm,
All right. What are some other ways we might reliably detect and prevent Brady violations?
Posted by: Frank Fosdick | Jun 17, 2025 11:33:43 PM
Indeed, going to trial for the benefit of that client is fine, it is the going to trial for (a potentially unknown) somebody else's benefit that I take exception to.
Posted by: Soronel Haetir | Jun 17, 2025 11:59:36 PM
To Soronel's comment, "Given that the vast majority of defendants are, in fact, guilty...": there's certainly research out there that talks about how often overcharging is present in criminal cases (and my personal experience, admittedly anecdotal, more than supports that), so I disagree with that premise insomuch as the vast majority of defendants are guilty of the most serious offenses as they are charged. And I think that matters a lot when discussing both plea bargaining and systemic reform. Not to get too far afield, but LE's very regular practice of overcharging anything and everything, prosecutor's willingness to never question that as the status quo, and conversations on plea bargaining almost always avoiding that topic seems to be missing a huge part of the puzzle. I will caveat all of that by saying it applies more often to state courts rather than federal but still holds there plenty as well.
However, I generally agree with Soronel's conclusion that "I think framing the defense attorney's job as avoiding conviction odd" (even if the article itself limits that to public defenders, point still holds). That -might- sometimes be the job, but hardly ever is.
To the point of forcing cases to trial made by both Soronel and tmm, both well-made whether as "malpractice" or clients as "cannon fodder": many a public defender lunchroom conversation has discussed that in a vacuum nothing would be sweeter than entire offices of public defenders forcing prosecutors and judges into so many trials the system would most definitely collapse, but practically we still face the Hobson's choice of fighting unjust felony overcharging that carries 5X or 10X penalties (for instance) vs. simply taking a plea on a much lesser charge that allows our clients to walk out of jail that same day with little or no real penalty to their day to day.
Particularly for clients who are in custody, prosecutors make plea offers on those lesser charges to let them out the same day but won't agree to ROR because "they're a danger." And we're supposed to advise clients to reject the offer on those lesser charges, because...the principle of the thing? It always felt that Alford pleas were almost tailor made for this exact purpose. And this is somehow ducking trial or not "going to the mat" for our clients? Spoke like someone who has never looked in the eyes of a defendant who will do practically anything to be released from the cage they’re being held in; yes, even plead guilty when they are entirely innocent.
To the greater point in the article of public defenders as the single, best institutional actor to effectuate real systemic change: I admit I see this as self-evident, because who else in the system actually engages with the various actors from prosecutors, LE, jail and prison personnel, judges, defendants, defendants’ families, even victims, etc as regularly as public defenders? And (ready for the criticism on this....) who else has little to no incentive to keep the status quo beyond public defenders? As examples, prosecutors will regularly prioritize their relationships with the charging officers over any real pursuit of "justice" (not to mention those office-wide conviction rates, although that certainly wouldn’t dictate a prosecutor’s decisions....), judges regularly prioritize keeping the system moving over actually and regularly implementing the few legislative efforts that do exist such as bail reform or implementing risk assessment tools that typically consider most defendants as low risk and eligible for release (not to mention the disproportionate % of judges as former prosecutors....), and certainly LE have no incentive to do anything but keep juicing the numbers in their own favor (yes, TQ, plenty of hyperbole in this paragraph in case you’re feeling upset). I'm all ears, but what incentive drives public defenders other than acting as a release valve to the overburdened system?
Of course, the entire premise of the article rests on the assumptions that things like mass incarceration and America as a carceral state even exist. Considering many prosecutors and LE regularly push back on these, almost universally accepted, realities as "real," just show why it’s always been a mistake to assume policy driven – only- by them was entirely credible. Not saying they shouldn’t sit at the table, but when they comprise the entire table why would the system turn out any other way beyond a society that criminalizes a higher percentage of our population than any that has ever existed in the history of our planet? The ratchet effect is real, and prosecutors are almost solely responsible. They know public sentiment will almost always support harsher penalties (certainly touched on in the linked article here, and very much appreciate the media connection as purveyors of that click-bait, if you will), but never admit that the idea that public sentiment should drive criminal justice policy ignores most of the public have little to no understanding of the system itself.
Posted by: Jon S - public defender | Jun 18, 2025 6:29:27 AM
My experience is that the six most disliked words in the minds of defense counsel is for a prosecutor, worn out with plea negotiation hijinks, to say: "You client is going to trial."
Posted by: Bill Otis | Jun 18, 2025 5:19:55 PM
Errata: "YouR client is going to trial."
This is what happens when you get old. On the other hand, it's better than the alternative.
Posted by: Bill Otis | Jun 18, 2025 8:59:07 PM
"What a drag it is being old"---Mick Jagger.
I have a prosecutor friend: "I don't like bad guys, and I love trying cases."
That wife-beater Kilmar is going to wuss out and plead. Just watch.
"They know public sentiment will almost always support harsher penalties (certainly touched on in the linked article here, and very much appreciate the media connection as purveyors of that click-bait, if you will), but never admit that the idea that public sentiment should drive criminal justice policy ignores most of the public have little to no understanding of the system itself."
I vehemently disagree. I think the public has an innate sense of fairness and does not like hard time for not so hard offenses. That's why we always hear about "non-violent" offenses etc. etc., which often cover for violent offenses. The public doesn't like soft time for hard offenses because the public understands that criminal behavior generally isn't a "one-off." If you have the guts to knock over some old lady to steal her purse, you have gotten so far past normal that you are a danger to society. And you need to go to prison for a long time. Plus a lot of criminals seem to have friends in the Democrat Party--take a look, for example, at Keith Ellison's history. (He was high ip in the DNC, so the 'rats can be tagged with his relationship with violent offenders.) And just now we see a federal LEO almost killed by some illegal alien kiddie rapist. Why did this happen--a 'rat policy not honoring ICE warrants.
Posted by: federalist | Jun 19, 2025 9:58:13 AM
Hey PD, that was a thoughtful post.
Posted by: federalist | Jun 19, 2025 10:03:24 AM
Jon stated: “ and certainly LE have no incentive to do anything but keep juicing the numbers in their own favor (yes, TQ, plenty of hyperbole in this paragraph in case you’re feeling upset)…”
Aw, mentioning me in threads I haven’t even been involved in? I guess it’s so empty up there both Bill and I are living rent free in your mind.
The sad part?
I agree with most of your comment.
I see it all the time. Corrupt and ignorant cop goes hands on a person who broke no laws other than perhaps “contempt of cop” and decided to not identify himself, maybe call the cop a pig or tyrant, or refuse orders based on “officer safety” instead of law. (Sorry, I can keep my hands in my pockets if I have broken no laws.)
The cop arrests him for vague BS charge such as interference or resisting, even when the bodycam video shows no resisting, just the cop yelling, “Stop resisting!,” which they are trained to do whether the person is resisting or not.
The DA goes along with it, because he has a working relationship with the officer, not the poor sap who had the temerity to “question authority.”
The local judge goes along with it for the same reason.
It’s not until tens of thousands of dollars are spent on a defense attorney that an appeals judge with no relationship with the officer or DA sees the case for what it is and throws it out.
The person files a section 1983 lawsuit.
Qualified immunity is usually granted. If not, the cop is indemnified by his agency.
The cop never pays a dime and seldom loses his job, only the taxpayers pay.
So much of this systemic problem can be changed with eliminating qualified immunity (let’s do away with judicial and sovereign immunity while we are at it). Replace it with insurance paid for by the cop, not the agency, just like a doctor’s malpractice insurance. Bad cops will price themselves out of a job, leaving fewer such cases going up the food chain to the DA, judge, etc.
My dad told me at a young age that the system says, “Ignorance of the law is no excuse.” Yet, we have immunities for government actors who are “ignorant of the law?” If the government actor has legal protections that you don’t (the right to carry firearms in government buildings is another), you are a sucker.
Posted by: TarlsQtr | Jun 19, 2025 12:11:10 PM
federalist --
It's a decades-long refrain from the Left that, "If the public only knew as much as I do and were as smart as I am, they wouldn't be such a bunch of retrograde wahoos and would instead hold my More Elevated Liberal Beliefs."
Posted by: Bill Otis | Jun 21, 2025 6:04:14 PM
Yes, and the left tends to be ignorant. So funny.
Posted by: federalist | Jun 23, 2025 9:58:01 AM
Not a belief that crime has "plunged" - https://www.pewresearch.org/short-reads/2024/04/24/what-the-data-says-about-crime-in-the-us/sr_24-04-23_crime_3/
Not a belief that the public almost always believes crime is increasing - https://news.gallup.com/poll/544442/americans-crime-problem-serious.aspx (see data about halfway down in link titled "Americans Believe Crime Is Increasing in the U.S. and in Their Local Area")
Nothing to do with the public seeing things as I see them; everything to do with the public as seeing things not consistent with reality.
Posted by: Jon S - public defender | Jun 24, 2025 8:41:16 AM
