Ferguson and Staten Island: In Case Anyone Doubted the Public Needs Defending…

It may seem surprising, but as I have followed the public conversation in the wake of Ferguson and Staten Island, I am actually encouraged.  The distressing events have sparked an important national dialogue; one that would never had occurred if Officers Darren Wilson and Daniel Pantaleo were indicted.  It is a dialogue that has the potential to mobilize a movement for change.  But if it is to live up to that potential the focus must broaden from addressing unlawful police abuse to challenging systemic injustice that occurs routinely in our courthouses under the color of law.  The dots between what happened to Michael Brown and Eric Garner must be connected to the broader machinery of mass incarceration.  Public defenders are both essential to this larger movement and uniquely positioned to help make this connection.

Every public defender has experienced the indifference so many have towards those embroiled in the criminal justice system.  At times it makes us question whether we have lost our capacity to care as a society.  But in the wake of these events, suddenly there are new voices crying out in painful realization that justice in America is illusory.  While some of the outrage comes from those who spend their lives fighting against oppression, much is being expressed by people who have been awakened by these events.  These are people who spend their days insulated from the injustice visited upon so many of the most vulnerable members of our society, but who cannot ignore the disconnect between who we claim to be as Americans and what is happening in the streets of Ferguson, Staten Island, Cleveland, and an ever growing list of cities across the nation.  And while, of course, there are a seemingly equal number of outspoken commentators who refuse to accept that race and class play a role in America’s justice system, for me, it is the people who have come off the sidelines to speak out against these injustices that represent the real potential for a shift in our ability to come to terms with racial and economic injustice.  And so, I am optimistic.  Opportunity often springs from tragedy, and this is one such example.

However, I have been disappointed that in all of the national conversation over the past two weeks there has been no mention (at least that I have heard) of public defenders.  There has been talk about the role of police and prosecutors, grand juries and trial juries, judges and politicians, but nothing about the men and women who speak for millions of people dragged into the criminal justice system each year.  Many may not think public defenders have any part in these discussions.  These men were killed in the street, some may say; they were never arrested, let alone charged, so what do public defenders offer to their situations.  But for me, this is a dangerously narrow framing of the discussion.  In my mind, our failure to demand equal justice for the most vulnerable people in the most routine aspects of the criminal justice system is the start of a slippery slope that leads to the brutal treatment of these people in every day police encounters; perhaps especially in cases where they are killed.  And so it seems clear to me that the Brown and Garner cases speak directly to the role of public defenders in creating a more just world.

For if we have learned anything from recent events, it is that Michael Brown and Eric Garner belong to a population whose lives are not valued.  In the context of our criminal justice system, they are deprived their humanity.  As a result, we have come to accept a different standard of justice for this “otherized” population.  No policy reform can fix a system in which the professionals who administer it neither respect those they have power over nor believe they deserve equal justice.  The dehumanization of our poorest citizens in our courts infects the way they are perceived by law enforcement in general.  We cannot expect a more civilized approach to justice in the streets than we demand in our courts of law.  And if the public defender is the vehicle necessary to ensure equal justice in the courts, our failure to deliver on the promise of Gideon vs. Wainwright bears some responsibility for our quality of justice writ large.

In fact, I do not believe that we can have any serious conversation about meaningful criminal justice reform that does not consider the critical role that public defenders play in the solution.  For every person killed by a police officer in the street, tens of thousands are arrested and subjected to the abuse of a legal process that is disproportionately punitive to poor people and people of color.  Even if we could deter law enforcement from using excessive physical force against those they police, we still must address the fact that these officers disproportionately monitor and arrest people of color.  Some will fabricate evidence, embellish accounts, and misrepresent the facts to cover up constitutional violations.  Many prosecutors will continue to accept the version offered by the police and refuse to challenge or investigate its accuracy.  Without an advocate in the system, poor defendants will continue to be blindly given bonds they cannot afford, plea offers that do not consider alternate possible versions of events, and sentences that do not take into account the whole person.  Hundreds of thousands of lives will be destroyed by a “legal” process that wreaks far more havoc on our most vulnerable communities than the illegal use of excessive force by police.

Had Michael Brown or Eric Garner not been killed by police, they would have been arrested and likely charged with a very minor infractions (disorderly conduct or resisting arrest).  They very well may have been detained, given a bond they could not afford.  They may have lost jobs, homes, and opportunities.  Their lives may have been irreparably harmed.  And we would have never heard of them.  There are hundreds of thousands of people in this situation.  2.2 million people are incarcerated in America, mostly for non-violent crimes.  Roughly 75|PERCENT| of the nearly half a million people held pretrial are detained solely because they cannot afford to pay a bond.  These are every-day abuses that are also worthy of our outrage.  It is public defenders who see these tragedies every day in our work, and yet we are not a part of the broad discussions.

There a couple of reasons for this. First, we view the problem giving rise to the tragedies in Ferguson and Staten Island too narrowly.  We cast it as a matter of police using excessive force against citizens.  While a critically important problem to address, it is not defined broadly enough to drive widespread change.  We must connect the abuses in these cases to the accepted abuse that happens every day in our courts of law.  Once we do, the importance of public defenders becomes obvious. These are the men and women who speak for the voiceless in the system.

Second, public defenders are not considered because their role is seen too narrowly.  They represent individuals, and some may think any legal solution must involve systemic litigation.  But public defenders work to understand their clients as complete people, so much more complex and human than the system takes time to appreciate.  Good public defenders are storytellers, skilled at using every opportunity to humanize those they represent.  This army of advocates, that represents 80|PERCENT| of the people in the criminal justice system, is in a position to collectively reframe the criminal justice narrative about who their clients are and what justice demands. 

While I appreciate the outpouring of anger over the decisions by these grand juries, I believe these injustices have created an important opportunity.  Had the prosecutors in these cases decided to actually indict these officers, many who are now outraged would go on believing the system works.  Those responsible for promoting and encouraging the dehumanizing treatment of poor communities would have been able to pretend to be addressing the problem as they turned the very officers they spawned into sacrificial lambs.  But the prosecution of two officers would not change the way the criminal justice system treats millions of poor people.  It would not end police abuse.  It would not bring back Michael Brown, Eric Garner, or any of the many victims of police abuse.  And to the extent that it would have prevented the outrage that has resulted, that outcome would not serve the greater cause of mobilizing a public to demand change. 

I believe these grand juries delivered a far more important message with their decisions not to indict than they ever could have with indictments.  The latter would have delivered false assurance that these officers were lone bad actors and that the system has addressed the problem, while the former illuminates the uncontroverted reality that equal justice in our nation is a myth.  The latter would have reinforced complacency while the former sparked badly needed outrage.

Our criminal justice challenges will not be solved by locking up the relatively small number of police officers who actually kill unarmed citizens.  It will be solved when we are collectively awakened from our slumber about the routine injustice in our criminal justice system.  To that end, these grand jury decisions have helped arouse a nation.  But, as the discourse of the past few weeks has illustrated, we are in danger of losing this opportunity to mobilize a broad movement to reform criminal justice.  As demands focus narrowly on police abuse they only hold the potential to get at the tip of a large iceberg.  And as long as the seething anger of a nation is limited to relatively rare public stories of the most extreme and unlawful abuse, it will inevitably fade.  As advocates for those in peril every day, we must add to the discourse to ensure people appreciate the need to be outraged about routine abuses.  We must help people make the connection between what happened in Ferguson and Staten Island, and what public defenders fight against every day.  A comprehensive movement to end racial and economic injustice depends on it.  And it is being left to public defenders to make the argument.  We should do so every chance we get.