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The Year of the Public Defender

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Larry Krasner and Tiffany Cabán (photo: @MonicaCKlein)

“I was a public defender. I didn’t become a prosecutor.”
-former Vice-President Joe Biden, addressing former prosecutor Senator Kamala Harris during a Democratic presidential primary debate, June 27, 2019

Public Defenders are familiar with getting little respect. Law school classmates assume you couldn’t get a real job. Family members ask why you aren’t trying to make money. Acquaintances ask with distress and disgust, “How can you represent criminals?” Court officers sneer at you for representing [derogatory word they use to describe your clients]. Prosecutors treat you as if you are gum stuck to their shoe. Judges kowtow to prosecutors. And the media lionizes prosecutors.

True, too, that many of your clients don’t trust you. After all, your service is free and in the United States we believe that anything free is worth what you paid for it. You are appointed by the same government that prosecutes them. And poor people accused of crime don’t get to pick their lawyer – you are foisted upon them (the court adage is that a poor person is entitled to a lawyer but not to one of his choosing).

Most Public Defenders have heard clients say to them, with all sincerity and heartfelt best wishes, “Maybe in a few years you’ll be able to make it to prosecutor.” Other clients, with less well-meaning intent, let you know they wish they had money for a “real” lawyer because they’d beat the case easy. Public Defenders have been referred to by clients as Public Pretenders and Dump Trucks (i.e., they just want you to plead guilty so they can dump your case).

In addition to an often-bruised ego, being a Public Defender can also be hazardous to your career. For those thinking long-term, being a Public Defender isn’t exactly the key to career advancement. You might think that with all their courtroom experience there are a slew of Public Defenders in the judiciary. Well, starting at the top, the last Supreme Court justice with any criminal defense experience was Thurgood Marshall. On the other hand, there are and have been many former prosecutors appointed and rapidly confirmed to the Supreme Court.

And you don’t have to aim that high judicially to be disappointed, and you don’t have to focus on conservative Presidents. Around 14% of President Obama’s nominees for federal district and appeals court judges had experience working in public defense. Meanwhile, 41% of his nominees had experience working as prosecutors.

It’s the same at the state level. A 2011 study found that 15% of State Supreme Court justices had experience as public defenders, compared to 33% of State Supreme Court justices who had experience as prosecutors.

What about legislative aspirations? How’s this for a campaign slogan – “I’m a Public Defender. Elect me your Senator.” Just listen to the debates for the current Democratic presidential nomination and count how many times one of the two dozen combatants intones, “Well, I used to be a prosecutor.” Think back to Clinton v. Trump and how he lambasted her for having been appointed to represent a man charged with raping a child in 1975. I guess his point was that that made her unfit for office.

Yet now it seems Public Defenders are all the rage. There’s even no need to ask or wonder what kind of a Public Defender the person is/was (even though it is well-known that in addition to the many zealous, committed and brilliant Public Defenders, there are quite a few less than brilliant ones). Just wear your Public Defender badge and you’re good to go. 

So much for those who looked down their noses at you and with barely concealed contempt asked how you felt about getting guilty people off on technicalities (which happens as often as Haley’s Comet makes an appearance). The worm has turned. Public Defenders are trending.

Consider the Public Defender for District Attorney movement. It’s hard to keep up with, every week another Public Defender is off and running to become a District Attorney and prosecute the clients they had just been defending (though in much gentler, kinder and more thoughtful ways). While the movement comes as a shock to most people, I imagine Public Defender clients are in full “I told you so” mode (see supra – “Maybe in a few years you’ll be able to make it to prosecutor”). 

And the Public Defender for District Attorney blitzkrieg is growing as several Public Defenders have pulled off dramatic victories. Now the battle cry is extending beyond mere District Attorney offices as calls abound for Public Defenders to run for judicial office. It might be worth calling a timeout on that one.

While it’s too early to comment on the performances of all the Public Defenders who’ve become prosecutors, there are an awful lot of judges who formerly defended the people they are regularly, and with seeming relish, sending to state prison. 

But with all the ever-growing viral love for Public Defenders, nothing can match the latest shout out. Former Vice President, former United States Senator, former Chair of the Judiciary Committee investigating the claims of Anita Hill against Clarence Thomas, he of all people, in response to a withering attack from Senator Kamala Harris during a nationally televised debate, when she accused him of cozying up to racists and racist policies, he, Joe Biden from Scranton, invoked, of all things, his service as a Public Defender. In fact, he threw it back at Senator Harris by almost sneering that she, on the other, less virtuous side, was a prosecutor.

As a former Public Defender, I had palpitations. I mean maybe there are kids out there in America who instead of reading To Kill a Mockingbird and dreaming of becoming a defender like Atticus Finch, will point to that moment as the day they decided to become a Public Defender. I am not sure if Biden ever really was a Public Defender, or for how long, or how competent, but that doesn’t seem to matter to anyone anyway. Just say you were a Public Defender and you win the day.

Think of it. Are there parents out there tucking their kids in at night saying “Dream big, child. One day you can be a Public Defender and then become President” (or maybe after that debate performance, just Vice President).

The Public Defender movement is undeniably gathering steam. Supreme Court Justice Sonia Sotomayor, herself a former prosecutor, has said that there need to be more judicial nominees with backgrounds as civil rights lawyers or Public Defenders. The aforementioned Senator Kamala Harris is showing respect for Public Defenders she didn’t display when she was District Attorney of San Francisco by proposing what she calls the Equal Defense Act that provides for massively increased funding for Public Defenders. Why maybe she’d appoint a Public Defender to the Supreme Court. 

But let’s not stop the Public Defender juju there. We need more Public Defenders as pundits and commentators. Are you listening MSNBC? Maybe instead of every five minutes saying, “I’d like to turn now to our expert analyst and former prosecutor,” it could become “What does our resident Public Defender have to say?”

Apparently, public defense isn’t a calling or a political stance but rather is a stepping-stone to bigger and better things. I hear there are some races coming up for police commissioner. Isn’t there an opening for a new Head of Customs and Border Protection? Maybe a Public Defender to run Homeland Security? Seize the day Public Defenders. The sky’s the limit.

Steven Zeidman is a professor of law at CUNY School of Law and a former Public Defender. On Twitter @SteveZeidman.

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