What About Those Who Speak For The Voiceless? By Ignoring Public Defenders, the Democratic Party Platform Can’t Ensure Equal Justice
As we enter the week of the Democratic Convention, there is no greater threat to our democracy than our criminal justice crisis. Vulnerable communities continue to be victimized by abusive policing. People who are unable to afford bail, fines, and other fees, continue to be jailed simply because of their economic status. Our prisons continue to overflow with people who are almost exclusively poor and disproportionately of color.
The Democratic Party’s criminal justice platform is filled with aspirational ideals with which no progressive-minded person could disagree. Of course we want better police-community relations and an end to racial profiling. Of course we want prosecutors to stop using drug laws to disproportionately punish people of color. Of course we want judges to engage in more humane sentencing practices. But the platform fails to speak to the fact that our criminal justice system reflects our assumptions about marginalized communities and how they deserve to be treated, and therefore offers no suggestions for how we begin to transform these views.
Simply declaring that we believe things should be different, or even enacting policies that reflect this view, will not bring these changes about. Most police, prosecutors, and judges are not intentionally acting to subvert justice. They have been shaped by a criminal justice narrative that sees poor people, and people of color, as dangerous. They have embraced a world-view that sees our most marginalized communities as needing to be monitored, punished, and controlled. Until we transform the assumptions that drive those who oversee the criminal justice system, we will not realize equal justice.
But politicians too often believe that every problem can be addressed simply through policy fixes. Last summer, during a candid exchange with Black Lives Matter activists, Hillary Clinton declared, “I don’t believe you change hearts; you change laws.” It reflects a world-view shaped by a career in politics, for those who toil in that arena are conditioned to see the answer to every problem through a policy lens. And so our political leaders talk about changing laws, seemingly assuming that everyone’s behavior will immediately adapt to the new set of rules.
This perspective helps explain the criminal justice platform and why it is missing a centerpiece to any comprehensive reform proposal: support for public defenders. For if you believe that by simply proscribing unjust behavior through legislation those who administer justice will automatically act accordingly, there is no role for lawyers for the poor to play in the solution. If we believe we just tell everyone to be fair, and mandate just behavior by law, no one needs to be protected from the government.
But this view is overly simplistic and naïve. There will always be criminal justice professionals who embrace values inconsistent with justice and who are willing to ignore the law to engineer desired outcomes. There will also be those who work hard to be fair but who are driven by a set of implicit biases that cause them to treat people differently based on race and class. Until we truly see the humanity and dignity of the most vulnerable among us, we cannot feel confident that our democratic ideals will be realized without advocates charged with keeping the system honest. Public defenders are essential to addressing each of these concerns.
And it is worth noting that this absence of support for public defenders is not only a shortcoming of the Democratic platform. It also undermines the effectiveness of otherwise progressive reform packages supported by both parties in a growing number of states, and leaves incomplete a host of conversations about how to address the criminal justice crisis occurring in forums across the nation.
And so, if we truly care about transforming our criminal justice system into one that lives up to our stated democratic ideals, we must include public defenders in any criminal justice platform. I would proposed the Democratic Party add a section that reads:
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We will finally live up to the unfulfilled constitutional mandate to ensure that every person accused of a crime be provided a lawyer with the resources, time, training, experience, and commitment to adequately represent them. As the Supreme Court announced over fifty years ago, the lawyer is the vehicle necessary to ensure justice in our courts. If we truly believe in equal justice, we must ensure that people without means have access to the same quality lawyers that those with means would pay for.
We recognize that until we complete the difficult work of transforming societal values so that we truly embrace the humanity and dignity of every person equally, the best safeguard against the implicit biases that drive those who administer justice is to support public defenders, the men and women tasked with protecting the fundamental rights of our most vulnerable citizens.
Because we understand that even if we change laws, there will continue to be some police, prosecutors, and judges who will abuse their discretion in an effort to punish vulnerable populations they view as dangerous, we must support public defenders who ferret out this abuse and bring it to the attention of courts and policymakers. We recognize that while most of the professionals entrusted with administering justice strive to be fair, there will always be some who are driven by values inconsistent with justice and who are willing to cut corners to achieve those values. Although a minority, their actions have a destructive ripple effect on our system of justice. Public defenders who have adequate resources, training, experience, and support are best positioned to identify these abuses and shine a corrective light on them.
Because we understand that even the best intentioned prosecutors and judges have limited information about the men and women whose fate they control, we must support public defenders who can help decision-makers understand the accused as a whole person. While judges and prosecutors frequently have examined the behavior that led to the arrest, this information paints an incomplete picture of the accused. Without a fuller picture prosecutors and judges are left to act on the assumption that the accused is defined by the worst thing he or she has done. Only through the efforts of a compassionate and prepared lawyer do prosecutors and judges learn about other information necessary to achieve just outcomes. Lawyers are necessary to help the court understand the accused’s background and accomplishments; whether they suffer from mental illness or substance abuse; and a host of information necessary to understand the whole person and to counteract the human instinct to judge based on stereotypes and biases. In this vein we understand that even our best prosecutors and judges cannot deliver just outcomes without good public defenders.
Because we understand that unequal justice in the courts is fueled by a justice narrative that deems some lives as less valuable, and we understand that this is driven by the fact that our most marginalized communities have been rendered voiceless in criminal justice process, we must support public defenders who are tasked with giving voice to over eighty-percent of the people in the criminal justice system. Public defenders who have the time to learn about the individuals and families they represent, and to serve as the vehicle for these populations to be heard throughout a process that has such tremendous impact on their communities, are essential to our commitment to overcome our implicit biases and to begin to treat those in the system with dignity. Until we take the time to understand the humanity of those in the criminal justice system, rather than to treat them in accordance with our subconscious biases, we will not have equal justice. Public defenders are the necessary vehicle for those who mete out justice to gain that understanding.
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The criminal justice section of the platform ends with the statement:
We have been inspired by the movements for criminal justice that directly address the discriminatory treatment of African Americans, Latinos, Asian Americans and Pacific Islanders, and American Indians to rebuild trust in the criminal justice system.
But these movements are necessary because we do not truly embrace the ideal that all lives matter equally. Our criminal justice system is driven by a value-system that understands some lives as less valuable. Even the best intentioned among those of us who work in the system have internalized this narrative. So if we want to be true to these movements, we better engage in the hard work of changing hearts, in additional to changing laws. We cannot do this in the criminal justice arena without public defenders.