Gideon’s Orchestra: It Is Time For the Encore

 I was recently asked to contribute a piece to a law journal in commemoration of Anthony Lewis, the author of Gideon’s Trumpet. Lewis’ book rightfully cast the public defender as the hero of American criminal justice.  In it, Clarence Earl Gideon’s court-appointed lawyer is literally the difference between the result of his first trial, in which he was wrongly convicted, and his second trial, in which he was justly acquitted, proving the necessity of counsel to ensure justice is done.

Gideon v. Wainwright is arguably the most important criminal procedure case of American jurisprudence, and Gideon’s Trumpet is the vehicle through which a wide audience came to appreciate how indispensable public defenders are to ensuring equal justice.  I read it as a law student and it reinforced for me the belief that there is no more important calling than public defense.  Over the next twenty years I worked with countless public defenders all across the country who proved the importance of the right to counsel every single day.  That our nation’s public defenders are the vehicle through which equal justice is realized was never a question in my mind.  This to me was a truism, a point beyond dispute.  I went through most of my career believing this to be an assumption embraced by every thoughtful person concerned with criminal justice reform.

However, as criminal justice reformers set their sights on addressing the critically important problem of mass incarceration, the role of the public defender is frequently minimized.  Criminal justice advocates look to policy reforms such as decriminalization of non-violent offenses, curbing discriminatory police practices, and doing away with mandatory minimum sentencing to reduce our nation’s prison population.  But strengthening public defense is not part of the larger discussion. 

Viewed as representing one person at a time, the public defender is overlooked as a vehicle to impact systemic transformation.  Some critics have even argued that, while important on an individual level, public defenders do not make a difference when it comes to addressing the national criminal justice crisis. And, at least one critic has posited that Gideon may have worsened the plight of poor people (see Paul D. Butler, Poor People Lose: Gideon and the Critique of Rights, 122 Yale L.J. 2176 (2013)).

As I listen to these conversations, it becomes increasingly clear to me that people outside our community fail to appreciate how a strong organization of public defenders impact criminal justice beyond the representation of individual clients.  We are the voice of the poor person accused of a crime.  And given that eighty percent of those in the criminal justice system are poor, this is a potentially booming voice.  While individually we speak for this population in courtrooms across America, as an organized movement we have the power to ensure that voice is heard in statehouses, in policy meetings, and in the community.

The reformer who overlooks the public defender as a vehicle for change has too narrow a view of the role we can play.  Gideon’s Trumpet illustrates the importance of the public defender to individual justice (a critically important principle standing alone).  But we must collectively narrate the sequel. 

The criminal justice system is crueler, more discriminatory, and less humane than it was fifty years ago.   There are challenges we must address that did not exist when Anthony Lewis penned Gideon’s Trumpet.  But none of these problems can be solved without public defenders.  We remain the engine necessary to ensure equal justice.  Not simply because of our work in individual cases, but because collectively we are the people who must forge the movement so necessary to driving reform.

While Anthony Lewis’ story revealed the power of the public defender individually, we must now ensure that the collective potential of our community is understood.  With this in mind, I accepted the invitation to write about Anthony Lewis.  But the piece is really more about us; a community of public defenders who are writing the sequel to Gideon’s Trumpet in a more complicated and hostile criminal justice environment.

Fifty years ago, Gideon’s Trumpet played a righteous tune.  Fifty years later we are building an orchestra.  It is up to us to make sure the world hears us.

You can read Jonathan Rapping’s tribute to Anthony Lewis, and to the public defender movement here.