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No Country for Jailed Men

Our incarceration rate makes America exceptional. The public defenders who push back are some of our greatest patriots.
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(Photo: ER_09/Shutterstock)

"The right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours."
     —Justice Hugo Black, writing the majority opinion for Gideon v. Wainwright

If you want to know a place, talk to the public defenders.

When reporters and photographers from all over the nation flocked to the streets of Ferguson and Baltimore to cover the grief and protests over the killings of Michael Brown and Freddie Gray, the articles they filed became kindling for the slow-burning national conversation about the meaning and value of justice.

It was a crucial story to tell, especially for an audience so often shielded from the ground-level experiences of marginalized communities—but that story didn’t begin with the deaths of Brown and Gray, nor did it end when the reporters left town.

The images of tear-gas canisters and SWAT teams were shocking, but also deflected our attention from some of the more revealing, personal reporting to emerge from those cities: Todd Oppenheim, a public defender in Baltimore, walked us through the way the harsh bail system can punish even defendants never convicted of a crime. ArchCity Defenders Executive Director Thomas Harvey chronicled Missouri’s court fees-to-prison pipeline. And Marci Tarrant-Johnson, another Baltimore defender, took to social media to reveal how arrested protesters were being held for days without meals or medical care, sometimes without even having been charged.

Lawyers like Oppenheim, Harvey, and Tarrant-Johnson have watched as America puts the “mass” in “mass incarceration.” They stand with their clients before judges on a daily basis and announce themselves to the court, and the way they announce themselves says a lot about our system: While the prosecutors follow their names with a mighty epithet—“for the United States,” or “for the people”—public defenders say simply: “for the defendant.” The lexical implication is that neither “the United States” nor “the people” include criminal defendants—especially not the indigent. In many ways, this language often feels as though it excludes the lawyers of the accused. But why should we treat public defenders with less respect?

We struggle to dignify and support both halves of the courtroom in equal measure. Public defenders are perennially overworked, under-resourced, and sometimes paid at levels low enough to nearly qualify them for indigent defense themselves.

Prosecutors belong to all of us; they are often appointed or elected, but regardless are chosen to represent “the people.” Public defenders are assigned, not chosen. They do, however, choose to stand for those we so often ignore, despise, reject, shame, or otherwise other-ize—and by proxy or even proximity, our defenders become cast as outsiders and villains themselves.

On television, public defenders provide every legal show’s favorite punchline. From Law & Order to Better Call Saul, they are portrayed as inept, untrained, boozy, unable to maintain neat case files or haircuts—and, most drearily, stuck in a job they don’t want. The kind of lawyers for whom the position is both the floor and the ceiling of their skills. The knuckleheads whom, even as just a first-year associate, The Good Wife’s Alicia Florrick must step in and rescue. It’s an unchallenged cliché as pernicious as the “CSI Effect” has become among juries, and has bled similarly into our non-fictional lives. Stand beside a public defender at a party and see how quickly someone asks: “How can you defend those people?” At best, you will hear the grudging concession: “I guess everyone’s entitled to a fair trial.”

But despite the reputational shade thrown their way, public defenders are just as much for the people as are their government counterparts (even constitutionally so!). Our Sixth Amendment right to counsel allows us to say the “all” in “liberty and justice for all” with a semi-straight face. Defenders time and again witness and challenge the individual and structural failings of our criminal justice system—as prosecutors do on occasion, sure—but with the added stake of having their client’s life and liberty hang in the balance.

Because they perform in triage-mode, public defenders also know the difference between “most of my clients are guilty” and “most of my clients are found guilty.” Many of those charged with crimes are, in fact, guilty. But plenty are not. Many are casualties of substance abuse, over-criminalization, excessive sentencing, poverty, and the revolving door of inadequate re-entry programs. But just as courts seek to hold defendants accountable for the charges they face, defenders are tasked with holding those courts accountable to the Constitution and the promise of Gideon v. Wainwright as much as they are with keeping their clients out of jail. Their public service is to the people—all the people—as much as it is to the due process of any one client.

Liberty, in this context, is a more concrete concept than justice.

Disclosure: I’ve spent two slivers of my legal career working in public defender offices: a summer clerking in the duly-heralded halls of the D.C. Public Defender Service, plus my last year of law school, when I used my third-year practice certificate to take misdemeanor cases at the local defender’s office in Charlottesville, Virginia. Though my strengths and interests led me into policy work, these are my people.

My first client was charged with driving on a license that had been suspended because of past-due court fees. He was living on poverty wages, paying for food and rent while his court debt became a crime in itself. The suspension permitted him to drive to and from work, period. On the day my client was arrested, he was returning from a one-off second job he’d picked up to try to make some ground on his balance due. The side gig wasn’t the exact “work” approved under his suspension order, so he was cuffed and put in a squad car—for a traffic offense—on a busy roadside while afternoon commuters gawked.

I was able to negotiate with the prosecutor and provide her with proof my client was driving as part of his employment. She didn’t have to nolle prosequi the charges, but thankfully she did. My client wasn’t convicted, but it’d be tough to say he didn’t serve a sentence: He’d been detained for several days and, as such, fired from his regular hourly job for being a no-show. Without representation, he could’ve also lost his license altogether or served more time.

It was a small case for me, but a big deal for my client. And even that meager degree of representation can be a colossal deal for the millions of indigent defendants brought to court in the U.S. each year. Liberty, in this context, is a more concrete concept than justice.

Still, we struggle to dignify and support both halves of the courtroom in equal measure. Public defenders are perennially over-worked, under-resourced, and sometimes paid at levels low enough to nearly qualify them for indigent defense themselves. In 2013, Miami defenders litigated and won the right to refuse case assignments—an attempt to address overwhelming caseloads that diluted attorneys’ time and attention down to unconstitutionally inadequate levels. Without additional funding and staff, other defender offices around the country may be forced to do the same, out of both protest and necessity. Sadly, funding priorities and cultural attitudes toward justice suggest that, in the minds of most Americans, defense work for the poor is an afterthought, a luxury, rather than a fundamental right.

Patriotism—a devoted attachment to the United States—can come with a set of blinders or a pair of bifocals. It can be rooted in the presumption of an already-achieved greatness, or the aspiration, the relentless drive to be better. It can be inscribed on the lapel pins of district attorneys, but it can also most certainly—guilt and innocence aside—be found smudged in the pencil strokes of Clarence Gideon’s cert petition. If our incarceration rate has indeed tragically become what makes America exceptional, then the public defenders who toil daily to push back against it are surely among our greatest patriots.

Unlikely Patriots is our series of essays for July 4th that celebrates surprising, forgotten, and/or contrarian expressions of love for one's country.