26 Apr Public Defenders Aren’t Just Criminal Defense Lawyers
Last week, WHYY published this essay by Keisha Hudson, the Chief Defender for the Defender Association of Philadelphia. The point of the essay is clear from its headline: “the mayor’s proposed budget sends the wrong message on public safety.” As Hudson explains, Philadelphia Mayor Jim Kenney’s current budget proposal includes a $27 million increase for the Philadelphia Police Department but allocates $0 — literally nothing — to the Defender Association of Philadelphia and its public defenders.
Maybe you’re a skeptic of criminal justice reform. Maybe you have a background or family members in law enforcement. Or maybe you simply see the justice system with a lock-them-up-and-throw-away-the-key mentality. If that’s the case, this $27,000,000-to-$0 disparity might sound like a good one. Police keep us safe, you might say, but public defenders protect criminals. This logic is as wrong as it is harmful. At a minimum, this rhetoric ignores the fact that the Constitution expressly guarantees that, “[I]n all criminal prosecutions, the accused shall … have the Assistance of Counsel….”
But even if you ignore the Constitution and the value of ensuring that some sort of obstacle exists between Americans — even non-rich ones — and government incarceration, this wrong and harmful logic also ignores another key thing public defenders bring to the table: public safety. Public defenders, arguably more than any other publicly funded group of people, play an essential role in stopping crime. That’s exactly what Hudson focused on in her essay.
Public defenders connect clients “to resources that address the root causes of what initially brought them into the criminal justice system.”
Hudson has worked as a public defender for nearly two decades. So, she understands the role public defenders play in our legal system. “Every day,” Hudson wrote, “the staff at the Defender Association do incredible work representing our clients in court and connecting them to resources that address the root causes of what initially brought them into the criminal justice system.”
The first part — “representing … clients in court” — is extraordinarily important. But it’s the second part — “connecting them to resources that address the root causes of what initially brought them into the criminal justice system” — that is almost always missing from elsewhere in the criminal justice system.
“Let’s talk about a young client who carries a gun and chooses to use it,” Hudson continues. “Why would he do this? Is it because he has suffered from lifelong poverty and a lack of quality education? Is it because he has a mental illness or suffers from a substance abuse disease? The answer is likely all the above.”
Yet, more often than not, public defenders are the only ones asking these questions.
According to Hudson, an incredible 80% — four out of every five — of Defender Association of Philadelphia clients have been witnesses to or victims of gun violence. “This week’s Defender client could be the prosecution’s victim in court tomorrow,” she wrote. That’s why, she says, “connecting them to resources proven to address their own traumatization and victimization is critical to stopping the cycle of violence and truly creating public safety.”
This work is just a glimpse of the out-of-courtroom work happening by public defenders across the U.S.
If you’ve ever Google-searched “public defenders,” you already know that they’re overworked so badly that it harms their clients. A few years ago, the Washington Post published this opinion piece with a headline that says it all. “I’m a public defender. It’s impossible for me to do a good job representing my clients.” More recently, the Baltimore Sun published this editorial, recognizing that “[e]xperts say the public defender’s offices can’t possibly handle them all and still provide effective legal representation.” And these are just a couple of easy-to-find examples.
But these easy-to-find examples often only touch on a public defender’s overwhelming caseload. For instance, in the Washington Post piece, the author, Tina Peng, a public defender, pointed out how she handles twice as many cases as the American Bar Association recommends. “The American Bar Association recommends that public defenders not work on more than 150 felony cases a year,” she writes. “In 2014, I handled double that.” That’s a problem in and of itself. But, as Hudson explained, representing clients in your caseload is only one part of the job as a public defender.
With such demanding caseloads, it’s virtually impossible for the attorneys at public-defender offices to do it all. But they shouldn’t have to so long as government officials properly support these offices and their budgets. In addition to the crucial role of support staff, most of whom are drastically underpaid (for instance, according to Hudson, “Defender Association administrative staff earn around $38,000” in her office), public-defender offices also rely on and desperately need social workers.
A 2021 study on the social worker model of public defense makes it clear that the practice is a win-win.
For decades, public-defender offices across the U.S. have been working on ways to meet clients’ needs with such limited budgets. In March 2021, Andreea Matei, Jeanette Hussemann and Jonah Siegel from the Urban Institute published this study assessing the quality of public defense services and case outcomes in Genesee County, Michigan, a mid-Michigan county that’s home to Flint, that used the Social Worker Defender Program (SWDP). You can read more about the SWDP and the study itself by clicking the link in the previous sentence. But the authors’ takeaway was clear: social workers helped not only those charged with crimes but others involved in the criminal justice system as well.
“Interviews with court actors and program participants indicate the program did have a positive effect on judicial considerations in sentencing, attorney-client relationships, defendant experiences with the court systems, and connecting clients to community services, as well as building court actors’ knowledge of services available in their own community,” the authors concluded. “Although implementing a social worker program in an assigned counsel system presents unique challenges, they are not unsurmountable.”
Attorneys are especially aware of the need. “As one attorney stated,” the authors wrote, ” ‘people shouldn’t be unable to participate because of how their county system is set up. The defendants shouldn’t have to suffer because of that. We demonstrated that it can work in this system with how we are set up, just as it works in other systems. At least from my vantage point, the program is essential everywhere.’ “
The government throws money at a lot of problems — but none of that money goes to public defense.
The federal government spent a whopping $6.82 trillion in 2021. That’s $6,820,000,000,000. For comparison’s sake, that’s almost 30 times as much as Elon Musk’s net worth. In 2019, state and local governments spent $3.3 trillion. Again, that’s $3,300,000,000,000. Or, again, almost 15 times as much as Elon Musk’s net worth. Put more simply, the U.S. spends a lot of money every year — literally trillions. Yet the attorneys and staff at public-defender offices are being paid far less than similarly qualified people in other jobs. And their pay is actually going down, not up. And it’s also rarely a part of proposed budgets. This remains the case despite well-known fears about rising home values, inflation and so on.
Yet we also know that public defenders and their offices are essential for public safety. “We care about public defense because it is integral to public safety: Public defenders help to lower recidivism,” the summary from “The Role of Public Defense” portion of the June 2, 2020 hearing before the President’s Commission on Law Enforcement and the Administration of Justice explains. “Criminal justice isn’t the best place to deal with issues like mental health, homelessness, or substance abuse. Public defenders connect their clients with services for these issues, keeping them out of jail and keeping the public safe.”
We know Americans are scared about public safety. And we also know that public defenders play a crucial role in public safety. So, why are politicians ignoring that clear connection when it comes to budgets?