Can Public Defenders be Reformers?

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Gregory Peck (L) and Brock Peters, in "To Kill a Mockingbird" (1962) Photo by jnbooth1 via Flickr

Defense attorneys and public defender offices have an important role to play in the broad, collaborative effort to achieve reform in the American criminal justice system.

And they must be prepared to advocate for a fair and effective systemic reform that transcends the areas of traditional defense concern.

The nationwide movement for change starts with the recognition that criminal justice system outcomes are disappointing for a significant number of Americans. That includes both the traumatizing effects of incarceration and being a victim of a crime, the inadequacy of treatment of those with mental illness and addictions, and the rates of recidivism and repeat victimization.

There also are problems frequently identified by exonerations, crime lab failures and, less commonly, actual misconduct.

Two critical shifts in thinking should accompany this recognition.

First, we have had an almost single-minded focus on the adjudication of cases at the expense of an equivalent attention to system outcomes. This old approach has led to a mistaken elevation of a competitive ethic which evaluates itself solely on short-term measures: number of arrests, prosecutions, convictions, or prison sentences.

Longer-term indicators are ignored or distrusted if adjudicatory practices seem to be in order.

Second, reform efforts, including Sentinel Events analyses which reflect a determination to learn from errors, are possible only when trust is created among system partners with differing and often seemingly antagonistic responsibilities.

The non-blaming Sentinel Events approach, first developed in the medical and aviation fields, is now increasingly being applied to the justice system. For defense attorneys, it means being willing to build trusting relationships with judges, prosecutors, police, and probation agencies whenever possible, because those relationships create opportunities that can reduce harm to their clients.

Defense attorneys have an important voice that can inform and even lead reform efforts. They spend more time with criminal defendants than anyone else in the system; only probation agents come in anywhere close.

An Active Role for Defense Attorneys

Diversion agreements, treatment courts, and deferred judgment programs all require an active role for the defense attorney working with other system professionals and their clients. These encounters, when they are effectively handled, represent an unparalleled opportunity to understand problems and identify resources in a community, and can help guide community and system partners to remedial outcomes.

Using the opportunity created when people are receiving representation to assist them to address and resolve underlying problems is what outstanding defense work is often about—keeping in mind the important ethical issues that must accompany this advanced practice.

Looked at in this light, a more holistic defense opens a window into the inadequacies of systems designed to serve people at risk.

Holistic Defense is Crime Prevention

Indeed, rightly understood, holistic defense is, in part, a crime prevention strategy. A holistic defense is an approach “in which public defenders . . . address both the immediate case and the underlying life circumstances . . . that [lead] to contact with the criminal justice system.”

Defense attorneys are students of systemic errors. They also are by training and experience deeply skeptical of reform efforts: they sense the mixed motives and unintended negative consequences lurking behind seemingly benign reform projects.

This sensibility, properly expressed, has great value in bringing honesty to discussions among stakeholders. Defense attorneys are not unique in this quality, but their work reinforces it in a regular way.

Of course, many defense attorneys balk at the suggestion that sharing their perceptions will benefit their clients. Strengthening an oppressive system seems like an obvious act of moral betrayal.

But perhaps our own thinking is in need of some reform, too, for we also are systemic actors.

Local context matters.Relationships characterized by honesty and trust are essential preconditions to any reform effort. For example, in Milwaukee County, where I head the Public Defender’s Office, there has been a sustained commitment to reform that has been rooted in many tough discussions which in turn have led to substantial improvements in pre-trial release, pre-charging diversion, post-charging deferred judgment agreements, drug treatment courts, and more.

There is nothing in these discussions that fairly could be described as surrendering clients’ sensitive information or providing moral support for oppressive law enforcement or prosecution at the expense of clients.

The strength of this collaboration has brought important resources from state, county and municipal governments and foundations, most notably, the MacArthur Foundation and National Institute of Corrections.

Understanding Violence and Trauma

Violence and the resulting trauma are the threads that run through the lives of clients and victims alike.

Both violence and trauma are poorly understood. Every experienced defense attorney has had clients who have been devastated by being the victim of violence, exposed to it, or both. Some of the worst excesses of the criminal justice system are tied to how these issues are handled.

Defense attorneys also should consider the role that they can play in helping to unravel violence by appropriately sharing their knowledge. Given the stakes for clients, defense attorneys have a responsibility to be engaged in deep learning and thoughtful efforts at violence and trauma prevention—not as members of a suppression effort, but as aspirants always to help clients in the difficult lives so many must lead.

If criminal justice reform is to be successful it must preserve its core competencies in adjudicating cases while expanding its capacity to learn from its errors to drive systemic change and reform.

Everyone needs to play a role. That includes defense attorneys, who have a critical voice that must be used─and heard.

Tom Reed

Thomas H. Reed

Thomas H. Reed has been a member of the Milwaukee Trial Office of the Wisconsin State Public Defender since 1982, and has served as the Regional Attorney Manager since 2000 for an office of approximately 60 attorneys. He is currently the Vice Chair of the Milwaukee County Community Justice Council. He welcomes comments from readers.

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