Welcome to Public Defense

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In the space of a few weeks, I received notes from two past chairs of the Criminal Justice Section. Terence MacCarthy and Norman Lefstein had the same message: abandon the word “indigent.”

I’ve struggled with that word. Though it’s never been a perfect description, I often say or write “indigent defense” because it seems ubiquitous, an easy shorthand among defense attorneys. The ABA uses it (e.g., ABA Standing Committee on Legal Aid and Indigent Defendants). So do a slew of others, including the American Civil Liberties Union (ACLU), the National Legal Aid & Defender Association (NLADA), and the United States Department of Justice (DOJ). Even Mr. Lefstein confesses to employing the word.

But there’s a quiet shift underway. Last year, the ABA renamed its Summit on Indigent Defense Improvement, opting for the tidier Summit on Public Defense. This column, previously “Indigent Defense,” now runs under the heading “Public Defense.” And some new organizations have opted for public defense over indigent defense in selecting their names (e.g., National Association for Public Defense, Idaho State Public Defense Commission).

For several years, I’ve tried to dismiss this as a lexicological trifle. Yet there is a weight to the words we choose: will versus shall, and versus or, verbal versus oral. Like these, indigent versus public matters. In this debate, there are two strong reasons to choose public defense over indigent defense: (1) Gideon doesn’t require indigence, and (2) indigent has an “othering” effect.

Gideon Doesn’t Require Indigence

In Gideon v. Wainwright, 372 U.S. 335 (1963), the United States Supreme Court used the term indigent only twice, both times summarizing the holding in Betts v. Brady, 316 U.S. 455 (1942), which it overruled. In its own holding, the Gideon Court avoided the term. Instead, it held that “in our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him.” (Gideon, 372 U.S. at 344 (emphasis added); see also Argersinger v. Hamlin, 407 U.S. 25 (1972) (using the term indigent to describe the defendant, but not limiting its holding to indigent persons). But see Douglas v. California, 372 U.S. 353 (1963) (using the term indigent in its reasoning).)

Although Gideon contemplates all persons “too poor to hire a lawyer”—not just “the indigent”—we often fail to make that distinction. (See, e.g., Mark Walsh, Fifty Years after Gideon, Lawyers Still Struggle to Provide Counsel to the Indigent, ABA J. (Mar. 1, 2013).) Indeed, the very rules that determine public defense eligibility frequently make this mistake. (See, e.g., 725 Ill. Comp. Stat. 5/113-3 (“[I]f the court determines that the defendant is indigent and desires counsel, the Public Defender shall be appointed as counsel.” (emphasis added)). But see Cal. Gov’t Code § 27707 (1980) (“The public defender shall . . . render legal services . . . for any person the public defender determines is not financially able to employ counsel[.]”).)

The distinction is an important one. Indigent indicates that a person is “impoverished,” “needy,” or “destitute.” (The American Heritage Dictionary of the English Language 919 (3d ed. 1992).) Yet nearly all of us, destitute or not, are one false accusation away from needing a public defender.

If I were charged with a low-level felony, I would be neither indigent nor too poor to hire a lawyer. Here, the distinction makes no difference. Yet if I were charged with a capital case, it makes a big difference. I still wouldn’t be indigent. But I would be unable to afford to hire a lawyer, as capital defense can cost hundreds of thousands or, in some cases, millions of dollars. (See, e.g., Peter A. Collins et al., An Analysis of the Economic Costs of Seeking the Death Penalty in Washington State 4, 43 (2015).)

Most people cannot afford counsel in a capital case, regardless of whether they are indigent. Indeed, many people cannot afford a lawyer in a drug or gun case, even if they are not indigent. It is the inability to afford counsel—not indigence—that triggers public defense under Gideon. Because it is inaccurate and could affect untold numbers of criminal defendants, we should abandon the word.

Indigent Has an Othering Effect

While it may be new to attorneys, othering has been the subject of social science tomes for decades. (See, e.g., Simone de Beauvoir, The Second Sex 7–10 (1949).) Put simply, othering is the idea that humans construct social categories—for instance, race, gender, ethnicity, or religion—and treat people differently based on those categories. (Race, for instance, is not an immutable biological divide, but a fluid social construction that has had, and continues to have, real consequences, including slavery, Jim Crow, and racially biased policing.) Once a group is established as “the other,” it becomes easier to treat them unfairly, even savagely.

Othering can also describe how poor persons are treated differently from the rest of society. (See Ruth Lister, Poverty 100–01 (2004).) Societies have long perpetuated the divide between “the indigent” and the rest of us. The indigent, we believe, are somehow not like us—whether by bad luck, immoral behavior, or the whims of the economy, they have landed in a different social category.

The truth, of course, is not so neat. Poverty is fluid. Not only does individual wealth fluctuate, but our idea of what it means to be poor fluctuates as well. To the extent that there is a wall between “the indigent” and “us,” we built it through social construction.

In recent years, public defenders have punched holes in that wall through holistic defense, participatory defense, and client-centered representation. (See Geoff Burkhart, How to Improve Your Public Defense Office, 31 Crim. Just., no. 1, Spring 2016, at 56.) Increasingly, we treat clients like our family or friends rather than “the other.”

These improvements make indigent all the more conspicuous. Indigent defense fortifies the wall between “us” and “them,” defender and client, public servant and the pitied. It makes it easier to treat our clients in ways that violate our ethical and constitutional duties by, for example, carrying grossly excessive workloads or engaging in meet-and-plead practices.

Given this othering effect, we should abandon the word indigent.

Welcome to Public Defense

If we abandon indigent defense, what should we use in its place? Public defense is an imperfect phrase. It can sound like someone defending a thesis or dissertation or, perhaps, like a missile defense system. Still, for all its failings, it’s far superior to indigent defense.

First, it more accurately captures the Supreme Court’s holding in Gideon and therefore avoids the legal consequences of indigent defense. No defendant should be denied his or her Sixth Amendment right to counsel because a judge, administrator, or public defender mistakenly believes that only indigent persons deserve counsel.

Second, it lacks the othering effect of indigent defense. Because we are all members of the public, there is no crisp line drawn between “the indigent” and “us.” It may even encourage greater constitutional and ethical compliance.

Finally, unlike indigent defense, public defense is easy to say. Saying indigent once isn’t bad. Twice is tolerable. But three times in a conversation—especially with a bad cold—is unbearable.

Welcome, then, to Public Defense.