Criminal defense is not for the faint of heart. We do an ugly job, representing people who are often very guilty of doing very bad things to other people, and still defending them and, if it’s possible within the bounds of the law, beating the case. Sure, there are innocent defendants and overcharged defendants, and there are defendants who’ve been burned by life and ended up committing crimes for lack of any viable alternatives within their sphere of understanding, but there are also defendants who are bad dudes. And then there’s the dirty little secret that most defendants are guilty.
Yet we defend them, and we don’t think too hard about whether we’re the good guys or not. Everyone has a constitutional right to a defense, and it’s our job to fulfill our end of the constitutional duty.
Add to that the burdens of being a public defender, overwhelming caseloads, unappreciative clients, lack of public defense and, in most cases, inadequate compensation, and there’s good reason why so many who go into public defense with grand aspirations become frustrated, angry and burnt out.* The mantra was that it was a tough job and the only way to survive was to “tough it out.” But there is now an additional burden, “moral injury.”
That narrative is changing within the public defense community, a group that includes not only attorneys but also social workers, investigators, paralegals, and other staff. Public defenders are grappling, at the individual and systemic levels, with the mental health impacts of their work. Rather than implying weakness, public defenders suggest that recognizing and confronting the mental and emotional toll of their work may actually make them better at what they do.
At the heart of this steady change is the recognition that public defenders face distinct mental health challenges. Given the unique character of their work, typical mental health advice—exercise, go to therapy, talk to a friend—is often woefully insufficient. Structural barriers and under-resourcing take a toll on defenders’ sense of self and justice. They’re also exposed to direct and secondary trauma coupled with a lack of education about traumatic effects. For many reasons, formal mental health care can be inaccessible. And yet, public defenders across the country are making significant efforts to respond to these challenges.
Over the past decade, people have become consumed with their own well-being, the theory being that you can’t care for others until you’ve cared first for yourself. Instead of focusing on saving the client, this empowers people to worry first about their own mental health where they’re the star of their feelings and the client is a supporting character in their universe of feelings.
Public defenders represent clients facing devastating, potentially life-destroying punishments; they witness the effects of criminalizing mental health needs, substance use, and poverty. A 2020 study of public defenders, jointly conducted by faculty of Rutgers University–Newark and Drexel University, concluded that public defenders suffered from the “stress of injustice” or the “demands of working in a punitive system with laws and practices that target and punish those who are the most disadvantaged.”
Andrews believes that her experience, and the experience of other public defenders who leave the work, can be understood using the concept of moral injury.
Essentially, PDs suffer vicarious injury of their defendants, subsuming their clients misery in conjunction with the unfairness of society and their client’s suffering.
The important takeaway from the concept is that traumatic effects can be felt even if one doesn’t experience the trauma firsthand. According to Andrews, secondary traumatic stress appears often in the course of public defense work: “A huge piece of public defense is listening to really painful stories of experiences. Not just the facts of a particular case, which definitely can include someone being very severely harmed … but it’s also the background information when we get to know the people that we represent and their families and communities.”
Public defenders are subject to both the “trauma” of doing a near-impossible job that fails miserably to align with their hopes and purposes in doing the job of defending the indigent, plus the secondary trauma of their clients’ suffering. For many who make the choice of entering this godforsaken niche of criminal defense, empathy is who they are and they can’t compartmentalize their job and slough off the collateral suffering of the people they come to know and defend.
But can they, individual public defenders, and the system of public defense, survive if they can’t overcome this “moral injury” that’s inherent in the job?
One tool to address this problem is therapy, although it has its issues, from cost to availability to efficacy.
Public defenders who do choose to seek professional mental health care often face barriers. There are, of course, the generalized obstacles like cost and provider availability, but there are also specific struggles, like finding a therapist who understands public defense work. Tina Fang, the chief deputy public defender at the Office of the Colorado State Public Defender, cited the loathed question often posed to public defenders: How could you defend that person? “I’ve had therapists ask that question, and nothing will shut down a therapy session faster,” Fang said.
But the purpose that’s gaining traction is that the burden on public defense, beyond the problems with financing it and staffing it, are best “fixed” by addressing the underlying social trauma itself.
What’s more, a frank discussion around the challenges of public defense work might provide another source of fuel for efforts to advocate for change in the criminal legal system. Andrews argues that the concept of moral injury can be an effective tool for turning a critical lens back on the systems in which public defenders work. In that sense, efforts to improve mental health for public defenders and advocacy efforts directed at changing the criminal legal system itself are not separate fights, but in fact inform and feed one another.
Does public defender burn out from the “moral injury” suffered vicariously “inform” reforming the criminal legal system? On the one hand, it may well be that this focus on vicarious suffering of clients suggests that people entering public defense may be too empathetic to survive. The job isn’t easy and it never will be. There’s a lot of merit to “toughing it out,” even if it’s fallen out of favor. On the other hand, are reforms directed at making public defenders’ lives less traumatic the proper way to run a criminal legal system? What about crime victims? What about society. There are other issues at work here beyond those that concern PDs.
But on the third hand, the system can’t work without public defenders to fulfill the constitutional mandate that every criminal defendant receive a zealous defense. And if public defense is unsustainable as is, then something has to give.
*No doubt most public defenders will be outraged by this post, despite recognizing the difficulties and importance of the job. There’s no tolerance for anything other than veneration for their bravery and tears for their trauma. While this may make them feel better, it does little to address the problems.
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cry me a river…
You are courting disaster from all the baby PDs. Not that they liked you and your old man “clients come first” attitude before.
They must have taken a wrong turn while looking for the public defender’s office with the tennis courts and the condominiums.
“Does public defender burn out from the “moral injury” suffered vicariously “inform” reforming the criminal legal system? On the one hand, it may well be that this focus on vicarious suffering of clients suggests that people entering public defense may be too empathetic to survive.”
Being a public defender is a thankless job that someone has to do. Just as the cops and prosecutors over at the other table, you see and hear things no sane person would willingly ever want to. I’m not sure how the criminal legal system could be reformed to stop PDs, DAs, and cops from enduring what they see and hear.
Yes, there is burnout and the weak leave. It takes a special breed, I think, with a strong stomach and thick skin to do what you and I do. Developing those comes with a cost not all can bear; and I don’t know how you make it easier.
PDs (or good PDs, at least) tend to fall on a continuum with “fighter” on one end and “helper” on the other. Fighters do the job because they enjoy the battle. These are the guys with coffee mugs that say “Prosecutor Tears” and live for going toe-to-toe in the courtroom. Helpers are way more sympathetic and empathetic, and are far more likely to work miracles in getting good results for the client, not just in the case but in their lives. Of course, both attributes are necessary but most of us tend to emphasize one aspect or the other.
I think helpers are more likely to burn out–every one of us has a story about the client we couldn’t save and got utterly screwed by the system, but fighters have a bit more emotional detachment and can take comfort in the fact that they’re going to kick the state’s ass some other day for some other client. The helpers carry it around with them.
Noel Erinjeri
I love the idea of a good fight in court.
But I’m very much not in favor of having a fight that I can pretty much guarantee I’m going to lose and, as a result, my guy ends up in prison because of his criminal history.
I want trial experience, but not at the expense of my client being in prison.
Many of the loudest “eliminate pleas, every case should go to trial” advocates fail to understand that most defendants have no defense, can’t win and will get crushed at trial, then sentenced to life plus cancer. We, as lawyers, care. They, as theoretical activists, do not.
I was a PD-represented defendant in a rwo-week jury trial facing multiple charges and decades of prison liabilities. (The State “piled-on” for some ungodly reasons.) So public defense is a topic near and dear to me, one we’ve spent two decades contemplating. Am the proud owner of a 500 page transcript which no one has read, except me.
Have also observed other criminal proceedings, including two for murder. This “moral Injury” concept is new to me, but certainly intriguing. Out of the gate, methinks Jenny Andrews may be onto something. However, there are plenty of other issues surrounding these enterprises. Can you say Prison Industrial Complex?
One that has not been touched on is the fact that PDs typically graduate at the bottom of the class. Actually I do not know that, but is a strong suspicion based on experience, observation and anecdote. Hey, somebody has to occupy the last chair! And when you graduate, you still have to pay the rent and eat, not necessarily in that order. It’s ironical to me that Yale Law is just a couple of blocks away from the Nightmare on Elm St. You never see the Ivy Leaguers in the courts of common pleas!?!
In other words, you’re a newbie who wasted three years in law school, and now you need a job. Furthermore, the Sate is hiring because they need warm bodies at the defense table, irregardless of their competence.
I’ve watched lawyers, both private and public, screw up badly. Have also seen masterful ones. (Am not a lawyer myself, but did stay at Motel 6 last nite. ) It’s inherently a flawed system. Mental duress comes with the territory. Around here, less stressful jobs go begging! Your judge can arbitrarily dismiss, or not dismiss, the charges. It’s maddening. The judge can, and will, walk over the PDs. My judge said, “I don’t want to hear about that! ” End of story, you can sit down now. (That is an order, for those who have never been inside a courtroom. )
My judge directed the verdicts she wanted to achieve, the PDs be damned. That is what I say, not necessarily what someone else might say!??
Finally, moral injury to overcharged and innocent defendants is of greater concern to me than the agonies and ecstatacies of the public pretenders in the courtrooms of Amerika. So-called Mental Health of the defense is almost laughable. What is next? What is the next study going to reveal that we did not already know? Inquiring Minds demand answers!
That was long ago, Bill. Things have changed. Over the past 10 years, top students from top schools have chosen to become PDs.
The more things change, the more they stay the same! Ha. Why would a graduate of a top school want to become a PD? Certainly not the pay. Prosecutors get paid double, and judges more yet. Everybody should get paid the same. The pay scale indicates the relative importance and power of the position.
A decade ago, the Chief Justice of our Supreme Court C0urt here in Mass. Complained publicly the justices were not being paid enough. My sentiment was, I’ll do the job for half price. She was utterly ridiculous.
Anyhow, hope you are correct, but color me skeptical?
The why is fairly simple…
Changes to student loan payments.
While Public Service has long been a way for loads of careers to eliminate student debt (if you don’t miss any payments for 10 years) there are new payment schemes (such as ability-based payments, which are based on income and I believe certain expenses like rent) that reduce the cost of loan payments to affordable levels.
Also, several states are in the process of increasing compensation for PDs – Kansas last year did an almost 8k jump for their 0-1 year experience “Baby lawyer” starting pay, in addition to funding for more attorneys.
And the pay scale indicates nothing more than the willingness of a state (or county or city, depending on where you are) to fund a system for an indigent defense system that works.
No elected official ever lost an election because they wanted to pay prosecutors more money, but I bet loads have at least had a real fight on their hands at the ballot box because they wanted to pay those filthy PDs more.
You can thank PSLF for that. That makes one wonder whether they believe in the cause or for loan forgiveness. I can imagine that the moral injury is more likely to inflict the latter group.
“How could you defend that person?” “I’m not – I’m acting as quality control on the system that ‘that person’ is stuck in.”
Are we in that “generational difference” our host has touched on in other threads? Newer lawyers are more “helpers” described upthread and not so much “fighters?”
Oregon, like most other places, is having its public defense crisis. Not enough lawyers to go around – cases are being dismissed and, as of last reading, 77 people are behind bars. Without representation.
One lawyer’s suggested solution was to “draft” other lawyers. Take a class – presumably a weekend CLE or such – and then get tossed into the trenches. I can’t imagine any better representation than some attorney who’s been doing real estate transactions for the last 20 years suddenly being appointed as counsel in a multiple nasty-misdemeanor case.
Maybe a better solution would be to abolish prosecutors and defenders as such, and simply appoint lawyers on cases based on rotation from a list. It would arguably be good for each “side” o see what the other has to go through, particularly the more zealous prosecutors out there.
As the saying goes, though, “that which can’t continue – won’t.” But who can say what will happen if – or when – things finally crash because they can’t continue….
We’ve discussed the “pro bono” criminal defense lawyer concept here before. It’s ungood.
The pro bono lawyer is a will o’ the wisp, as we discovered first hand. It’s a legalistic myth and the product of wishful thinking. Water water everywhere, but not a drop to drink, sez it quite nicely. Glad I’m not in Oregon. Glad I’m not a lot of places. Could be in prison for godsake.
And then there’s Murphys Law, which is not taught in law school. But should be!
Agreed, particularly when the “pro bono” is being forced, and even more so when the drafted attorney is not particularly competent in the area, despite the preparatory CLE.
I would never deign to claim that the “harm” I experience as a public defender is anything close to the jeopardy my clients are in but I do concede how vicariously awful the job can be. It’s largely an artifact of my own privileges in life though, because overwhelmingly my clients have experienced the kind of debilitating mental illness, crushing poverty, and raw violence that I am almost completely ignorant of in my day-to-day life. On top of that, I still can’t wrap my mind around simple concepts like what “years in prison” actually entails.
Someone asked me how I cope with the stress of my job and I reflexively said “I pretend none of it is real.” The idea that people can be sent to prison for years and years is so unfathomable to me that my brain just pretends it’s fiction. I’m on a stage and we’re all actors playing at make-believe in court.
Here’s another way to think about it. What better serves your client, you holding his hand and crying for his misery or you making forceful arguments on his behalf to keep him from spending years in prison?
It’s very much real, but your role in it is limited to doing everything possible to help and represent the client, not share his pain. If you want to share the pain of the downtrodden, do it on your own time. Your time as a lawyer is owed to the zealous representation of the client, not your feelings.
Oh absolutely, I didn’t meant to imply that my clients need to be privy to whatever turmoil I’m going through. I can adhere to my role as a stellar advocate while also acknowledging the emotional burden it imposes upon me.
That’s the question, can you be both a stellar advocate while also feeling that it’s an emotional burden imposed on you?
An old pal of mine who was the head of training at LAS told me that a lot of his new hires believe that, but they were completely full of shit. They let their emotions get in the way of their stellar advocacy and they were piss poor lawyers, but they all believed they were Clarence Darrow and nobody could tell them otherwise. I’m not saying that you can’t pull it off. Maybe you’re the exception. But if so, everyone isn’t you.
And it’s worthwhile to remember, your emotional burden ain’t squat compared to what your client will suffer.
I know who you’re talking about. He really cared about those baby lawyers. Too bad they didn’t care as much about themselves as lawyers as he did.
RIP.
May I put in a vote for “compartmentalize”? I’ve never been a CO but 25 years on the streets after 20 as a Marine gave me some experiences that would scare the hair off a dead cow. Put those in a box. Shut the lid. And, for the love of all that is holy, don’t take them home to your family. Settle for macabre jokes with your peers and an occasional slap on the back from someone you respect that means, “Me too, bud, Me too.”
I know that is in direct conflict with “modern day” thought, but it worked for my Dad and Uncle after WWII (two men I try hard to live up to) and it works for me.
As a PD, I don’t think anything you said could reasonably be interpreted as offensive to PDs. Although perhaps “reasonably” is doing a lot of heavy lifting there.
I think anyone who ends up doing PD work for more than a couple years learns to represent clients without taking on their emotional baggage. If you felt very strongly that every (or even most) cases in which there was an outcome that wasn’t exactly what your client wanted were outrageous miscarriages of justice and worth losing sleep over, you would very shortly collapse into a useless puddle of an attorney. I have seen some of the newer PDs who focus on how horrible it is that these things happened to their clients and know if they don’t figure out a way to avoid being so emotionally invested, they’re going to quit very soon.
A not insignificant portion of the job is hearing a soul crushing story from someone, and having to tell them that even though that sounds incredibly horrible, it’s not a legal defense, most of it will be excluded during trial as irrelevant, and I doubt the prosecutor will be particularly sympathetic considering what the client is accused of doing to the alleged victim. If you can’t emotionally handle doing that a couple times a week , all while losing motions and seeing your clients get convicted, then being a PD, or probably even a criminal defense attorney at all is not for you.
Bordering on a career public defender and having dealt with this problem myself, I have learned the following things:
a.) It is my client that is facing the charges, and not myself,
b.) A healthy amount of “mental anesthesia” (or emotional distance) is necessary to do this line work to avoid being overwhelmed by the stress and anxiety of the work,
c.) You have to compartmentalize. Leave work at work when you go home. Have a life outside of the profession, and
d.) Meditation or prayer when the bad days come around.
I just started as a PD last year (first law job) and I had already made “not my circus, not my monkey” a core part of myself.
I’m not the one doing the time. If my client WANTS the stupid, pointless, “son, they have 4k video of you from like five angles not just DOING the criming at issue, but like 30 minutes of you talking about how you did it, why you did it, and that you knew it was wrong so you are 100% going to prison, why will you not take this deal that avoids 5 years in prison and puts you on probation” trial, then hey lets go have us a knife fight.
All I can do is give them the best advice I can, and if they choose to not listen to it then all I can do is my best at trial.
You had some good mentors. They taught you well.