Q. As the son of a Pittsburgh community activist, you were weaned on protests in the ’60s. You went to Chicago, where you received a BA cum laude in economics, then Princeton for a masters, earning some sterling credentials that would have given you entree into any shop on Wall Street and the good life. Yet, you went and screwed it all up by going to law school. Why? What’s wrong with earning a good living, buying fancy stuff, talking up the virtues of Goldman Sachs at cocktail parties?
A. I was raised by two parents who were deeply affected by the issues that gave rise to the civil rights, women’s, and anti-war movements. Both were academics. My mother taught, wrote, and was a political activist. She continues to be very politically conscious. My father was a well-known radical economist in those years, although he became a bit more conservative in his older years before he died in 1991. I understood from a very young age how those in power often oppressed those without power in an effort to maintain the status quo. I was raised to be skeptical of authority and to understand that having a voice carries with it the obligation to use it to speak out against injustice. I was also raised to believe that finding purpose in one’s work is essential to being fulfilled. So taking on a career that would allow me to wake up every day and fight for justice was ingrained in me.
But I also understood that those in power are inclined to only listen to those who have credentials they respect. So I went to the most respected schools that would have me (and I was rejected from more schools than I was accepted to). And while I do not embrace the view that those who attend higher ranked schools are any better able to make an important contribution to the world (in fact, if you are not careful, these “better” schools are more likely to strip from you the passion necessary to make such a contribution), I do understand that credentials can give one a voice. So I attended Chicago and Princeton – before deciding to attend law school — as I figured out how to best position myself to have an impactful and purposeful career.
Many of my classmates at these schools graduated and made lots of money. And I do not think there is anything wrong with earning a good living. The question is, “what is the cost of pursuing those things?” If the cost is giving up personal and professional fulfillment, it is not worth it. And I was raised to understand that personal and professional fulfillment had to be intertwined with the purpose of your life’s work.
There is a video clip I often use when speaking that shows people on the street being asked, “When is the last time you felt needed?” Most struggle to answer that question. I often share this video when I speak to young people who are still trying to figure out what to do with their life. I tell them that nothing could be sadder than being unable to answer that question. I tell them that while I spent a few years living on rice and beans, Ramen noodles, and macaroni and cheese as I struggled to pay off my student loans, I have never had a day in my career as a lawyer when I was not fulfilled and had a strong sense of purpose. There was never a day when I had to think back more than 24 hours to answer that question. I tell them that I too want to live a comfortable life; that I like nice clothes and good food. But I also tell them that there is no amount of money one could pay me to not be able to answer that question. I warn them to make sure they do not find themselves at the age of 50 or 60 without an answer to that question or they will regret the career path they chose.
Q. Despite a diploma with the name of that notorious racist president, you chose to head down to D.C. and attend law school at George Washington. What made you want to go to law school? Did you go in with a plan? Were you interested in criminal law from the outset, or did it come from your internship with the Public Defender Services? What about that experience made you say, this is where I belong? Would it have been any different if you’d got an internship with the prosecution?
A. You certainly pack a lot into each question, Scott. [Ed. Note: Yup.] To address the first statement, which is not really a question, I have never gone to a school because the diploma or name impressed me. In fact, I have no idea where any of my diplomas are. No diploma has ever hung on my office wall. The walls to my office have always been lined with thank you cards from clients, honors from people and organizations I admire, and inspirational quotes. The degree is not an end; it is a means to an end that I continue to work towards.
I wanted to be a lawyer from a young age because as a kid a number of lawyers were family friends. They would represent protesters and other people whom I saw as targets of a government with tyrannical tendencies. I loved movies about outlaws: Butch Cassidy and the Sundance Kid and The Godfather, for example. I admired those who were outside the system.
As I grew older I had many friends who were in trouble with the law. These were working class kids who did not have many of the opportunities that were afforded more privileged kids, including a kid like me with two academic parents. I always went to mixed income schools and understood at a young age that kids were tracked by race and class. The kids who were clearly destined for college were mostly white and upper-middle class. Working class kids didn’t talk about college. Most of their parents did not go to college. I understood that when these kids got into trouble, the quality of the lawyer they had determined how they would be treated in the system. I wanted to be a criminal defense lawyer because I saw that as the best way to fight back against a system that targeted marginalized populations.
But to be honest, after four years of college, I became disheartened. People convinced me that if I went to law school I would incur incredible debt and wind up taking a job I hated just to make enough to pay off my student loans. I worried about that so I decided to work for a while to figure out what to do next. My father was an economist, who thought a lot about the connection between class and economic policy. My admiration for my father had led me to major in economics, and I decided to see if policy work might be fulfilling. I worked at the Federal Reserve Board for two years focusing on the impact of fiscal policy. I then got a scholarship to attend the Woodrow Wilson School and study public affairs. But after graduate school, I realized policy work would not be purposeful for me. I wanted to work with people. My mother pushed me to consider law school. She always thought I was born to be a lawyer in the mold of the great activist lawyers. So I did.
I knew I wanted to be a defense lawyer but I did not consider public defense. I had an image of public defenders as overworked, uncaring, and bumbling. It is the image that popular culture promotes. It was reinforced in what I saw when my high school friends had public defenders. I wanted to be more of a William Kunstler or Clarence Darrow.
But I then spent the summer after my first year of law school working as an investigator at the DC Public Defender Service. I met so many young, passionate public defenders. They were smart, talented, and dedicated. They were the best lawyers I had ever met. That summer convinced me that public defense was my calling. I spent the next two years volunteering at PDS. I was rarely at the law school. My legal education came through my work with these public defenders. I learned lessons that were never taught in law school. Law school teaches that the law is about rules and doctrine. That success requires that we learn to “think like a lawyer.” But thinking like a lawyer left no room for caring. I understood that law school was the start of a process of seeing people as cases. a dehumanizing process that drives lawyers to forget about the people behind the pages of a casebook. These PDS lawyers showed me how to be a lawyer without losing sight of the humanity of those impacted by the system. In fact, that humanity was front and center of everything they did.
Of course, an internship at a prosecutor’s office would have been different. As my friend, Paul Butler describes in his book, Let’s Get Free: A Hip-Hop Theory of Justice, prosecutors tend to measure success by conviction rates. There is incredible institutional pressure to do so. It becomes easier to play that game when you convince yourself that the people you prosecute are no more than they crimes with which they are charged. As Paul describes, good people can be shaped by a prosecutorial culture that depends on embracing a narrative that sees poor people as dangerous – as needing to be prosecuted and controlled. What I got from PDS was the opposite: a lesson in the importance of seeing the humanity of every person, even those who have made mistakes. That justice depends on never losing sight of that humanity.
Q. You worked with the D.C. Public Defender during law school, and for real afterward, from 1995 through 2004. How did your first trial go? Were you like so many baby lawyers who thought they knew it all, until the first time you heard a one-word verdict? Looking back now at baby lawyer Rapping, what kind of job did you do as a newly-minted PD?
A. It is funny that you characterize so many lawyers as thinking they know it all. I suppose that is true. But I have been fortunate to surround myself with public defenders who, while incredibly talented and committed, continually question whether they can give each client the representation they deserve. They understand the magnitude of their responsibility and that becomes humbling…and terrifying. I always felt that way. In fact, I heard that one word verdict after my first trial. And I nearly quit as a result. I thought I was not good enough. I was filled with self-doubt.
I was co-counsel in the case of a fifteen-year-old boy who accidentally killed his best friend as they played with a gun. The boy was grief-stricken over the role he played in this tragic accident. He had never been in trouble before. He was a good student with a promising future. I came to really love this young man. He was convicted and sent to Oak Hill, a notoriously awful detention facility for juveniles outside DC. He would be there until he turned 21. His future was destroyed. All the hope for this young man gone. I was devastated.
After the verdict, I went in my office, turned out the light, sat at my desk, and cried. I felt inadequate. I wanted to quit. But fortunately I was surrounded by supportive colleagues who helped me understand that sometimes injustice occurs despite our best efforts. It happens because the system is designed to treat poor people unjustly. That we must learn to forgive ourselves for the things that are beyond our control. This was my first lesson that would become the foundation of the work I now do, that one cannot continue to carry on the fight against injustice without a supportive community reminding them of why they do the work. It is too easy to lose sight of one’s purpose – to become beaten down, jaded, or cynical – without support.
But most importantly, I began to understand the importance of being by the side of another person during their most trying times. That even when you can’t achieve the result you desire, there is incredible value in being there for another at their time of need. Too many people go through life with no one who cares about them, and they are processed through a system that reinforces the idea that no one cares. Simply refusing to be part of that type of system, and insisting on resisting it, has intrinsic value.
So, looking back on a young Jon Rapping, I probably did not appreciate the value I brought to the job. I gauged my success on my technical skills. I look back now and realize that what made me and my colleagues special was less about our technical expertise, and more about our dedication to those we served, and our refusal to abandon our passion for justice. We may not have changed the system, but we refused to let the system change us. That is success. Law school never forces you to think about how hard it is to go through the legal profession unscathed by the injustice.
Q. A lot of people who do public defense want nothing more than to do anything but public defense. They hate the workload, they hate the money, they hate the fact that clients don’t take them seriously. Then there are some who thrive on the work. So which one was Jon Rapping? Were there times as a PD that you wanted out? Were there clients you dreaded seeing? What was the worst insult you ever received during your time as a PD in the trenches?
A. Those public defenders who want to get out, need to get out. Their clients deserve someone who continues to be passionate and committed to the work. There are those who get into the work for reasons that are not about the client – they want trial experience or they could not find another job – and that is shameful. Low income people with serious legal troubles deserve a committed advocate. They are not there for practice. They are not the warm-up for one’s next career. Anyone who sees low-income clients as less worthy of a skilled, committed, inspired attorney than their wealthier counterparts should not be a public defender.
Then there are those who get into this work for the right reasons but have the passion beaten out of them in a system that hates poor people and disrespects their lawyers. Every public defender experiences burnout. It is easy to become jaded. But if the pressure drives any lawyer to hate the work or lose respect for the clients, it is time to get out. I do not blame any person who becomes cynical and jaded. The system is designed to do that to the best of us. But we owe it to our clients to recognize when we are no longer able to give them the lawyer they deserve.
Of course I have felt like quitting. I described one such experience above. It is hard watching terrible things happen to people you come to care about deeply. It is hard to not feel inadequate and responsible. That is why a strong and supportive community is critical to sustain oneself in this work.
I would not say there were clients I dreaded seeing. However, I certainly had clients who were more difficult. People who have to rely on public defenders often begin with deep suspicions of public defenders. There is a sense that we are part of the system and that we are not really going to fight for them. Unlike private lawyers, public defenders often have to invest a lot of time developing a relationship that allows the lawyer and client to work together as a team. It is amazing how much trust comes along with a client who chooses their lawyer and pays twenty thousand dollars for the service. Public defenders do not have that luxury. Developing client relations becomes an especially important skill. Some clients take longer to build a strong relationship with. Some have had bad experiences with public defenders in the past and are especially suspicious. Some have mental health issues that make the process more challenging. For any number of reasons, I have certainly had my share of clients who took longer to build a rapport with.
When I have been especially stressed out and emotionally drained, I have been less enthusiastic about dealing with a more challenging client. We all have times when we are short on patience. In those moments, I have felt irritated with some challenging clients. That is human nature. But I always have been able to step back and appreciate that this is a person who is at the lowest point in their life. They have no reason to trust me. They may have psychological or emotional issues. When I took the time to step back, I understood the challenge is not personal. With time to reflect, I have always been able to recapture my resolve. I always felt like I wanted to be on the side of that client in this battle.
As for the worst insult…it never came from a client. It came from those outside the system who had little respect for the important work of public defenders. When I started at PDS, our trial chief had a button that said “Don’t tell my mother I am a public defender, she thinks I play piano in a whore house.” Every public defender understands where that joke comes from. So, when you realize there is no nobler work in the legal profession than public defense, the disrespect can be quite insulting.
Q. Clearly, you found a purpose in public defense that many others don’t. What made that happen? Was there one experience in your career that made you realize how critical public defense is to the poor? Are you a “true believer,” that public defenders are the heroes in the courtroom, or is it just a job, albeit a necessary one, needed to give the appearance of balance?
A. I absolutely believe public defenders are heroes, not only in the courtroom, but in the criminal justice system. As a public defender in Washington, D.C., I felt tremendous purpose. I got to know men and women whom prosecutors and judges treated in ways we would never allow our loved ones to be treated. But these professionals did not see these people as they viewed the folks who were most important in their lives. To them, these folks were expendable. But I got to know my clients in a different way. I got to know them as mothers and fathers; sons and daughters; shopkeepers and bus drivers. I knew them as people who struggled with incredible challenges in life; challenges that would defeat the strongest of us. They were people with stories. Deeply human people worthy of respect the system would not give them. Fighting for them, and against a system that devalued their lives gave me purpose.
But I also understood that as a public defender I was able to give every client the representation our Constitution guarantees. In those early days, I saw my role as solely fighting for individual clients in individual cases. I did not see myself as a systems reformer.
But for the past eleven years, I have worked in the Deep South and with public defenders in some of the most broken systems in the nation. These are systems in desperate need of reform. And I now realize that the public defenders I work with not only stand up for individual clients in individual cases but that they are also collectively capable of driving systemic reform. I now see public defenders as civil rights warriors on the front lines of today’s greatest civil rights struggle: criminal justice.
Conscientious public defenders in the system wear two hats: they fight for individual clients, regardless of who they are or what they are accused of doing, and they help to challenge a system that punishes people based on class and race. Collectively these defenders challenge the assumptions of every person in the system; assumptions about poor people and how they deserve to be treated. Collectively, public defenders make up an army that can awake us from our collective unconsciousness. They can change a criminal justice narrative that accepts unequal justice.
Q. In 2007, you and your wife, Ilham, started the Southern Public Defender Training Center, later renamed Gideon’s Promise, with the help of a grant from the Soros Open Society Foundation. What was the need you sought to fill? You had trained PDs in D.C. and Georgia. Where was the training gap? Why were public defenders not getting the training they needed to fulfill their mission? What could they get from Gideon’s Promise that they weren’t getting elsewhere?
A. To understand how my wife, Illy, and I got into this, I need to tell you a bit about her. Illy is not a lawyer. She was trained as an educator. She did Teach for America and taught in urban schools in Washington DC and Atlanta. Illy comes from Buffalo. Her father went to prison when she was only five. He was locked up for allegations from several years earlier. By the time he went to prison, he had converted to Islam, started a business, married, and had a family. When he got locked up, he had three girls and a boy on the way. But his lawyer never told his story. He did not have anyone to fight for him. Illy was the oldest so she helped raise her siblings. She brought her baby brother with her to college at Cornell to help him escape the influences back home. But she could not overcome his growing up without a father. Her brother ended up in prison. Every man in her life ended up in prison. None ever had a lawyer who cared. Illy hated public defenders and became a teacher to try to interrupt the cradle to prison pipeline.
But as a teacher she saw far too many children fall through the cracks. She could not compensate for all the challenges these children brought with them to school every day. It was inevitable that many of her kids would end up in the criminal justice system. But through my work at PDS, she also met public defenders for the first time who were committed. She gained a renewed sense of faith in the power of a lawyer who is there at the final stage before the cradle to prison pipeline is completed. She appreciated the importance of fighting to interrupt the process at that back end, and saw that with good lawyers it could be done. This is an important back story to understand why a woman who devoted her career to teaching would decide to build an organization designed to empower and support public defenders.
So this helps explain why, when I was invited to leave PDS to join the effort to help build a new, statewide public defender system in Georgia, Illy agreed. We had recently married, bought a home, and had a daughter. Life in DC was perfect. So it took a partner committed to public defense to agree to pick up and move.
I spent two years helping to build the public defender system in Georgia. Then, after Hurricane Katrina hit, I was invited to help rebuild the public defender office in New Orleans. I spent a year in New Orleans helping with that effort. In the meantime I did some work in Alabama and Mississippi. My experience in the South was my introduction to public defense outside Washington DC. I saw what most public defenders have to deal with every day. It was my introduction to systems that had come to accept an embarrassingly low standard of justice for poor people. And sadly these systems beat down good public defenders. I met so many young, passionate defenders who came to the work for all the right reasons; but within a couple years the system would beat the passion out of them. Many would be forced to either quit or to become resigned to the status quo. These were great lawyers who desperately needed support. There was no community for them like what I took for granted at PDS.
So in 2007, I got a grant from Soros to start SPDTC (the precursor to Gideon’s Promise). The idea was to not only provide public defenders training, but to also give them mentorship and support to resist the pressures to process poor people. It was designed to become a community that would nurture and inspire these lawyers as they fought to raise the standard of representation for their clients immediately and to develop into the leaders of the effort to reform criminal justice in the South.
Illy agreed to take a year off to help me build the organization. It started as a small start-up in our living room. Eleven years later, Illy has not returned to teaching. She is now the Executive Director of Gideon’s Promise, an organization that has blossomed into a multi-program model to transform criminal justice in some of the nation’s most broken systems.
At the heart of this model is training, but it is not merely a “training program.” Training is one tool, along with mentorship, and community building used to drive a movement to change the existing culture of criminal justice. It starts by changing the culture that exists in public defender offices as we catalyze these lawyers to drive change in the systems where they practice.
Don’t get me wrong…I believe Gideon’s Promise provides the best public defender training available. There are many great training programs for lawyers, but Gideon’s Promise is specifically for public defenders. It combines trial skills, with pretrial advocacy, with ethics, and – most importantly – with a heavy dose of values-based lessons. These lawyers learn skills to represent clients well in individual cases as well as strategies to resist systemic pressures to abandon their ideals.
What these lawyers get from Gideon’s Promise that they cannot get anywhere else is the support and inspiration needed to do this work, combined with first rate lawyering skills.
A short story helps illustrate this. I was teaching at a leadership and management program a few years ago. Each public defender leader brought a “management challenge” to discuss. One said his challenge was that he had a great lawyer who “hated his clients.” What he meant was he had a lawyer who possessed very good trial skills who hated his clients. But can this be a good lawyer? We teach that caring for the client is at the center of being a good lawyer. As long as one “hates” their clients they can’t be a good lawyer. They can have good trial skills, but that is different. Our profession often teaches that lawyering is something done independently of those we represent. As if the client – especially the poor client – is just the case, or a vehicle for the lawyer to do his or her thing. We teach that the work is all about the client and that the skills are simply a set of tools necessary to fulfill a larger mission. This is a critical perspective that is lost in overwhelmed systems designed to deal with poor people.
Q. When Gideon’s Promise opened its doors, what was the reaction? Were you seen as a resource for public defenders who weren’t getting the training they needed, or competition for local offices who thought you might be stepping on their toes? You received some pretty sweet awards, like the Lincoln Leadership Award from the Kentucky Department of Public Advocacy, but were you every public defender’s darling? What sort of negative reaction came your way?
A. As you guess, the reaction was mixed. There was suspicion by some. It can be hard for those who have been working within a system for a long time to hear an effort to transform a system as anything other than a criticism of them personally. So there were certainly lawyers who felt like we were pointing a finger at them. But over time, I think many of those lawyers have come to embrace the idea that there is no shame in admitting that the systemic culture is so strong that it shapes even the best of us. Acknowledging that we may have adopted practices that are inconsistent with who we want to be as lawyers is not a personal attack. It is about the system. The best of us own where we can be better and work at it.
In fact, as much as I love my colleagues from PDS, I have a level of admiration for those lawyers who came to systems that were dysfunctional and made a commitment to help in these broken systems. While they cannot work in these systems without being affected, they are the ones fighting where the need is greatest.
Over the years we have developed a growing community of defenders who embrace this perspective. They recognize that the system is broken and that without support it will break them. They embrace a community that helps them continue to fight in these systems while getting the support they need to fight to maintain their values.
There remain some defenders, mostly older lawyers who are very resistant to change, who are critical of our model. They have learned to work within the current system, and have come to believe it works well. But I find that every year those who embrace our approach grows.
We started with sixteen lawyers from two offices and now have worked with over 400 lawyers from across sixteen states. That does not include our first statewide partnership in Maryland where we have trained and supported over 500 defenders and many other non-legal staff.
Each year, we expose new offices to our approach through our annual Trainer Development Program. It is inspiring as defenders realize this is a community of like-minded advocates who are working to maintain the passion that brought us into this work in the first place.
Q. Once Gideon’s Promise really got going, how did your program develop and expand? The perpetual complaint of almost every public defenders’ office is that they lack the funds to hire sufficient staff to fill the need. And if there’s no money for them, there surely isn’t extra cash floating around for you to train them. How did you keep Gideon’s Promise afloat? Was it a struggle? Will there ever come a time when public defense, including training, isn’t the poor stepchild of the legal system?
A. As we continued to build partnerships with offices we expanded to meet new needs. We started with a three-year “core” program for new lawyers, providing ongoing training and support. We then added a Graduate Program to teach our graduates to become mentors and trainers. We added a Leadership program to work with the chief defenders and supervisors of our partner offices as they develop into better leaders and advocates for reform. We added a Trainer Development Program to both ensure all our trainers knew our model and taught it consistently and to teach others our model to take back to their programs. And we added a law clerk program to recruit law students to offices in places with the greatest need.
But, as you recognize, resources is an issue…a big issue. It is not cheap to provide the ongoing training and support these lawyers need as they fight the hardest battles in the most difficult places. And while our offices contribute what they can, the vast majority of the cost comes from our fundraising efforts. I spend ninety percent of my time trying to raise resources. We are constantly looking for grant opportunities and working to build our private donor base. All of our faculty are volunteers. And unlike other training faculty, we do not only ask them to come present for an hour or two. Being a faculty member for Gideon’s Promise is a huge commitment. You must go through four days of training, on your dime. You then commit to teaching and serving as a mentor. You commit to being an ambassador and helping to rally support and resources for the effort. It is a commitment to joining a movement.
But increasingly our community is galvanizing folks from within and outside the legal community to support our work. Interest about our work is piqued. Our lawyers are challenging assumptions in the courtrooms, in community meetings, through national presentations, through social media, and through a variety of channels. These advocates are raising awareness of the importance of this struggle and inspiring people to rethink the critical role of public defenders in the larger effort to reform criminal justice.
We are influencing law schools (we have a law school partnership project through which we work with twenty law schools across the nation), law firms, and non-legal supporters. I think that through this advocacy, we are raising awareness of the importance of public defense and the need to support it.
I am an optimist, but I do believe that there will be a day when public defense is given the respect in our profession that it deserves. When that happens it will be because a movement of public defenders has reshaped the controlling narrative about what justice means and the important role that advocates for the poor play in this rewritten story.
Q. You were the recipient of a 2014 MacArthur Foundation “Genius” grant, which is pretty damn cool. What did that do for you? What did that do for Gideon’s Promise? Is it true there’s a secret Genius handshake? You’ve also been teaching law school at John Marshall (and an occasional visit to Harvard), where you’re now a full professor. Would you rather teach trench lawyers how to save a poor defendant’s life or the young, idealistic and entitled who could easily turn to the dark side and ignore your good counsel? Do you ever wonder how many of these well-intended inchoate lawyers have what it takes to stand beside an indigent defendant?
A. The MacArthur Fellowship was pretty cool. Primarily because it validates what we have been discussing in this interview, that the work of public defenders is important and that they play a critical role in reforming our criminal justice system. There is still a lot of work to do to get public defenders the respect they deserve. Too many of our allies still leave public defenders out of national conversations about criminal justice reform. Reformers still have a blind spot when it comes to these lawyers. A narrative that casts public defenders as powerless has sadly affected even progressive criminal justice reformers and funders. But public defenders are mobilizing to change that. I think the MacArthur recognition helps in that effort – not just for Gideon’s Promise, but for indigent defense. It lends support to the idea that change can come from a community of public defenders.
I see my law school teaching as integrally connected to the mission of Gideon’s Promise because ultimately Gideon’s Promise is about culture change. And it recognizes that culture changes when those in an organization, or system, transform the value set that drives their attitudes and behaviors. How we shape legal professionals to understand justice and to see the poor begins in law school. Law schools are where the values-shaping process begins. And law schools have largely abdicated their responsibility to drive equal justice. I see teaching as a way to begin imparting important values to students who will work in the criminal justice arena. At John Marshall we launched the Honors Program in Criminal Justice, which I direct, to weave this “values and ethics driven teaching” into a criminal justice curriculum designed for students who will enter this field.
I love teaching law school, but only because, through John Marshall, I have been able to marry it to the critical work I do in the field. I know some law teachers who believe that if they just teach students to be good prosecutors or judges they can make a difference. I think this ignores the power of culture. Even the best students will be shaped by the culture of the organization where they work. Sending good students into bad cultures does not change culture. It changes good students. So we must also work to transform the culture in the organizations that administer justice. Through Gideon’s Promise, we have a model to do so. It is a model that can be applied to prosecutors, judges, police, and any criminal justice professional.
But of course, I am most fulfilled when I am working with public defenders. No question. These are the folks who are committed to doing the most important work and struggling to earn to do it right. They are admirable and inspirational. I know a small group of my law students will end up in this fight. But if law schools were more committed to grooming students to consider purposeful careers, we would see more students entering the field and making a difference.
Q. As no discussion of public defense can ignore money, what about Orleans Parish Chief Public Defender Derwyn Bunton’s decision to draw a line and refuse to take on more cases than his office can handle? There is a huge dispute within the public defense community as to whether it’s better to take all defendants and do one’s best, even if the best falls short of effective assistance. Is Bunton right, that there comes a time when you have to stop feeding the machine as if everything is going fine? Should the system come crashing down or should it continue to limp along, giving the appearance of representation if not the substance? And what about the ACLU’s lawsuit against Bunton, to force him to take on cases his office can’t competently handle? Where is the line drawn?
A. I absolutely agree with Derwyn’s decision. In every field where we deal with lives, we recognize the need to know one’s limits. If an airline agreed to take more passengers than an airplane could safely handle, jeopardizing the lives of all aboard, we would close the airline and prosecute the CEO. We would never support a doctor’s decision to take additional patients if it meant the doctor could not adequately care for those already in their charge. Why do we expect lawyers to do less?
I understand and admire those public defenders who do not want to turn anyone away. But in the long run, if public defenders continue to agree to provide a lower standard of representation, because of crushing caseloads, they contribute to setting a lower expectation for what poor people deserve. Public defender offices set the standard for what kind of representation we afford the poor. An office that insists on providing the highest standard of representation – a standard we would expect and want for our loved ones – is the only way to begin to raise the expectation of what justice means for the poor.
This comes at a cost. It means there will be people in the short run who do not have lawyers. As public defenders we feel the need to take on this injustice. But in doing so we are lowering the standard of care that we can provide those who are already assigned to us. If we are to treat poor people the way we treat those with money, we must not take on more than we can handle.
Imagine if a person you loved hired a lawyer and that lawyer told you they could not give your loved one the representation they deserve because they want to take on twice as many cases than they did last year. You would find a new lawyer. Public defenders must begin to insist on the same expectations for low income people.
But I also understand that it is unrealistic to simply do that tomorrow. Every system has unique challenges and political realities. Public defenders must devise strategies, tailored to their realities, to begin to change expectations.
As for the ACLU’s lawsuit in New Orleans, while they are suing Derwyn’s office, and the state Board, for its inability to provide poor people the representation the Constitution demands, the ACLU is not saying Derwyn should just keep taking cases he does not have the resources to handle. It is saying that Louisiana is failing to live up to its constitutional mandate. Because the State is not funding Derwyn’s office, Derwyn is forced to decline cases. Poor people are deprived of their Sixth Amendment right to counsel. The suit against Derwyn’s office is an effort to force the state to provide the resources these defenders need to represent these clients.
At the end of the day, New Orleans is another example of how public defenders drive systemic reform; how they are the engine necessary to transform the system. The public defenders in New Orleans have refused to continue to go along with injustice as had been happening for years before Katrina. They shined a light on what has been happening to poor people in that city. And now there is momentum to achieve justice. Without public defenders who refused to accept the status quo, nothing would change in New Orleans. Without public defenders across the nation refusing to accept injustice, meaningful criminal justice reform will not happen.
Main image via Ben Dashwood