Why Should the Public Care about Public Defense?

Can you articulate – in a sentence or two – why people should care about public defense? 

I ask because if public defense is ever to be properly supported – as opposed to chronically disrespected and underfunded by policymakers – we need to be able to answer this question clearly and convincingly, and do so as often, and as strategically, as we can. 

As a lawyer and criminal justice policy advocate for 20 years, it’s clear to me that policymakers generally disregard this constitutional right because they don’t sense that it’s valued by their constituents.  Thus they are loathe to dedicate taxpayer dollars – which could be spent on other public services – to defending people generally presumed to be guilty in the first place.  

That reality is daunting enough.  Perhaps even scarier is the fact that most people have no idea why they have an actual interest in public defense.  (Then again, can we assume most lawyers do? How about criminal practitioners?  Defenders?  Public defenders?) 

I put the question to you because we, as NAPD members, need to be able to readily articulate why public defense is important, in a concise and convincing manner, at every opportunity.

When I ask you to persuasively answer why the average person should care about public defense, the response, “Because it’s a constitutional right,” doesn’t get us there.  It is precisely because public defense is a constitutional right that it is already supported at the (often insufficient) levels it is.  The constitutional justification provides the bare minimum of support we can expect.  But if you – and we, through NAPD – can help regular people appreciate why they should personally care about and support proper public defense, then we have a chance at seeing it properly funded and supported.

It is for this reason that I joined NAPD.  In the course of my work in states across the country, I am consistently staggered by the pitiful support provided to public defense.  NLADA, NACDL, the ABA and other membership organizations have worked for years to enable the support that it presently receives.  And whether you want to believe it or not, we should be thankful for what they have been able to do.  Each of those organizations has many other goals, and thus it was not “their job” to devote their full attention to this need.  But NAPD can, and should, devote that attention, and seems poised to do so.  That is as it should be, and comes not a moment too soon.

Will NAPD actually be able to improve support for public defense across the nation?  The task is truly immense.  If we are to succeed, we – as individuals and as an organization -need to be able to articulate why public defense matters not just to  clients, their families and communities, but to everyone.  We need to plainly state the reason why it is true time and again, incorporating it into our conversations, arguments and presentations until it starts to sink in for the public, policymakers, judges…. Everyone.

Why do I think this will make a difference like nothing else can?  Because as a lobbyist I have learned from hard, bitter experience that getting elected officials to “do the right thing” is almost laughable.  There is virtually nothing at the core of American politics other than self interest. Neither significant numbers of the voting public, nor the politicians who represent their interests, feel that public defense serves them in any useful way.    Thus when most legislators have to apportion taxpayer dollars to their constituents’ needs, they will only fund public defense at the levels they are forced to.

We may wish this weren’t the case.  We may even pride ourselves on our refusals to engage in “politics” or anything remotely similar.  But if we refuse to constructively engage in political discourse about the community-wide importance of public defense, then aren’t we just tilting at windmills when we cry for justice to our friends and colleagues – and to some extent, even to judges??

The bottom line is that when it comes to securing support for proper public defense, politics is the only game in town.  And you can’t win if you don’t play.

I joined NAPD not because I am a public defender. I joined NAPD because I believe deeply in the importance of public defense, because we need better support for public defense in this country, because government support for public defense is dictated by politics, and because political decisions are driven by politicians’ sense of what the voting public wants.   If we’re going to get to the former, we’ve got to develop the latter.

It will take a concerted effort for NAPD to be able to serve as the “catalyst for change for indigent clients and their constitutional right to counsel” that is central to its identity.  As we seek to together become that catalyst, I offer my question as a starting point, to solicit from NAPD members the answer that can become a fundamental element of our messaging and reform efforts.  In future blog posts, I will explore some of the ways we can readily impact public thinking about public defense – many of which, you may be pleased to know, don’t require stepping into the state capitol, or even talking with a politician.

I hope you will consider how you’d answer the question “Why should the public care about public defense?” I hope you will also share your response with NAPD (you can send them to me at Stephen@StephenSaloom.com), because a key to our mutual success – and the quality of justice – lies in our answers to that question.  We need your answer because nobody has thought about it, lived it, understands it, or can articulate it better than public defenders themselves.