Public Defender Independence

This article is originally published in the Texas Journal on Civil Liberties & Civil Rights, Fall 2021 issue. (27 Tex. J. on C.L. & C.R. 25)

Article abstract: Independence is an aspiration for public defenders. It is the ability to advocate for clients without interference by government overseers. Two of the biggest obstacles to independence are a lack of funding and excessive cases. However, even when those are addressed, public defenders face scrutiny from funding authorities who may disapprove of advocacy for systemic change on behalf of clients. That disapproval can result in punishment, including termination of chief defenders. This is because such reforms cost governments money and expedience in the short term, even though they can ultimately save money and support justice. There are constitutional protections for public defenders who speak out about systemic reforms.

This article explains what can be done legally and practically to protect defenders from retaliation when those political disputes arise. After surveying the current system, the article provides five case studies of chief defenders who were challenged for their actions. It lists structural, cultural, and legal remedies to protect public defenders. Those include supportive oversight, alliances with the community, engaging in politics, messaging in the media, adopting holistic practices, and litigation. The pervasive, but understudied, issue of public defenders facing retaliation for speaking out is examined in both a legal and historical context.

You can read the entirety of this article HERE