This post concludes our symposium on Jocelyn Simonson’s Radical Acts of Justice: How Ordinary People Are Dismantling Mass Incarceration. Read the rest of the posts here.
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That public defense is in a state of crisis is far from controversial. Crushing caseloads and rampant underfunding have created untenable working conditions under which even the most well-meaning defenders often struggle to effectively represent their clients. Courts have sanctioned this status quo by setting a low bar for the quality of counsel required by the Constitution. In a relentless feedback loop, inadequate representation compounds many of the other injustices that define our criminal legal system.
And yet, Jocelyn Simonson, in her important new book Radical Acts of Justice, refers to the “crisis” in public defense in a way that signals doubt — not doubt that the working conditions and their consequences for those represented by under-resourced public defenders are oppressive, which they undeniably are. But rather, doubt because there may be a deeper, more existential crisis facing public defense — one that can’t be resolved through, as she writes, the “dream of a well-funded public defense office in which experts assist helpless individuals as they navigate a complex system.”
The crisis toward which Simonson gestures is not one of funding, but of purpose. The core work of public defense is, of course, the provision of criminal defense legal services. But should public defense also work toward dismantling our system of mass incarceration? Is that possible? And if so, how could it – the field and its institutions, not individual defenders – do that? Should public defense offices seek to expand their offerings and services to meet the ever-growing harms of the system? Or should the goal to be to eventually shrink themselves out of existence? In either case, what are the implications for the delivery of core legal services?
Problem-Solving Lawyers
In the absence of clear or widely shared answers to these questions, various approaches to the work are being pursued at once. Perhaps the most prominent has been “holistic defense.”
Holistic defense envisions “a radically different kind of public defender office, one that reflect[s] the original—holistic—spirit of poverty lawyering.” In this approach, “public defenders must become aware of the many traps, hidden punishments, and big and small losses of liberty that befall their clients, and be equipped to address them.” This approach is often held up in the field as a model: with more resources, we could offer holistic defense. Scholars and advocates, even those seeking to integrate abolitionist thought into public defense, embrace the model, often without questioning its place.
The model’s appeal is no mystery. The relentlessly mounting harms of the criminal system — which defenders see on a daily basis — make one want to help. A natural response is to meet more problems — health problems, employment problems, benefits problems, immigration problems, childcare problems, etc. — with more services, more solutions. A virtuous cycle is imagined: Solving the problems impacting clients’ lives may lead to better case outcomes, which, in turn, will further improve the circumstances of clients’ lives—all of which clients of course want, and will perhaps even reduce the risk of them being criminalized again in the future.
This intuitively appealing logic, I want to suggest, is not unique to public defense. In the judicial branch of the criminal system, treatment courts—sometimes called problem-solving courts—have grown as a response to the ever-growing problems facing criminalized people. Offering a targeted and ostensibly more benevolent path than traditional punishment, these courts prioritize treatment, support, and second chances — while keeping firmly in place the threat of criminal conviction and incarceration. In drug court, a substance user will be assigned a treatment program and ushered through it alongside court appearances. Successful completion of the program will be celebrated and rewarded by the court. Failure will be punished.
Law professor Erin Collins writes of these courts: they “do effectively address a problem—it is just not the one we think.” When it comes to actually improving the material lives of defendants, the efficacy of treatment courts, Collins explains, is ambiguous and inconclusive. By contrast, a problem that these courts actually solve is the diminishing authority and job satisfaction among judges in our era of ubiquitous plea bargaining and structured sentencing. Treatment courts give judges wider discretion, space to be creative, and broadened scope. Collins reports a widespread feeling among judges that serving in these courts is among the most satisfying work they do, the work most personally fulfilling and most praised by their peers. Judges also, Collins notes, feel treatment court is the place where they are most able to help the people who appear before them.
In many ways, public defenders who espouse the holistic approach can be viewed as ‘problem-solving lawyers,’ perhaps even guided by the same systemic forces as problem-solving judges. Public defenders, too, operate in a system of plea bargaining and structured sentencing. Public defenders, too, see intersecting social, health, and legal challenges every day. Public defenders, too, want to help.
Through individual holistic defense, lawyers identify myriad challenges that people face when they are entangled within the criminal legal system. And then they try to “solve” those challenges – not by tackling the structures that create and foster them, but by providing services to the person experiencing them (or—often—by providing referrals to other agencies who may be able to provide services). Like treatment courts, this can be a pathologizing approach, hyper-focused on individual needs, deficiencies, and outcomes. Seeking to find solutions to the reasons people commit crime, or ways to prevent them from committing crimes again, the goal, in some ways, appears to be solving the problem of crime – not the problem of criminalization. So while alleviating individual suffering (including, it must be mentioned, by reducing terms of incarceration) is, of course, a worthy endeavor, problem-solving lawyers – like problem-solving courts – can ultimately end up serving as obstacles to the liberatory structural reforms needed to dismantle our system of mass incarceration.
Indeed, what if this model – despite appearing as an answer to the crisis of public defense – is in fact a symptom of the crisis? Individualized holistic defense reinforces a help-based service model: an expert provides, or helps navigate, services that a client needs. These terms, and the power dynamics baked into them, often go unexamined. But as community organizer John McKnight wrote in Services are Bad for People, “Service systems require clients, and community organizations require citizens. That is why service systems are often antithetical to powerful communities.” He continued: “You’re either a citizen or a client.”
Radical Acts of Justice is about ordinary people – citizens – organizing to end mass incarceration. Its protagonists, all of whom are non-lawyers, aim to “shift power away from the elite actors at the front of the courtroom and toward the swelling collective in the back.” Doubtless, public defenders belong to this class of elite, front-of-court actors. The power dynamics inherent in their relationships with clients are ever-present. Rather than alleviating them, however, holistic defense risks enhancing them.
Deconstructing Power, Reconstructing Purpose
Thankfully, the work of public defense does attract many attorneys who want to challenge the balance of power in courtrooms. For many public defenders, even adhering to the basic language of the system — justice as punishment, the people as prosecutors, public safety as pretrial detention — requires relentless code-switching, a never-ending feeling of cognitive dissonance. Many entered this work because that was true, because the language did not hold, because the norms need changing.
Working to change those norms will require examining the complex power dynamics inherent in the provision of indigent legal services. Criminal courtrooms are, Simonson tells us, sites of state domination that hold themselves out as places of justice. They are places where norms are produced and reproduced, where language is wielded in powerful ways, and where lawyers regularly consent to the carceral logics of desert and punishment to advocate for the person standing next to them. While individual public defenders can do — and do — an incredible amount of emancipatory work every day, the contours of that work will always be shaped by the larger narratives, frameworks, and goals of the field and its institutions. How, Simonson invites us to ask, might those narratives, frameworks, and goals operate in service of the grassroots democratic social movements that are working to dismantle mass incarceration?
It’s no mistake that Simonson, a former public defender, highlights participatory defense as an organizing practice. Participatory defense is a method of collective contestation through which would-be “clients” and their families intervene in the criminal court process. Rather than waiting for their public defenders to build a defense or negotiate a plea deal, families involved in participatory defense hubs take leadership over their loved one’s defense, actively push their attorneys, and even—in some cases—publicly politicize prosecutions. By cultivating “productive tension” with attorneys, participatory defense organizers instill in public defenders — especially those willing to listen, reflect, and adapt — a deeper appreciation of their own knowledge, expertise, and power.
But this appreciation will not bear fruit unless it ties to clear goals. It needs a purpose to undergird it. Does public defense seek to make the system more fair, and thus sustain it, and to expand itself in the process? Or does it seek to dismantle a system whose harms it confronts every day? Indeed, even when public defenders engage with participatory defense hubs and, as individual practitioners, learn to embrace community power within the court process, major questions of purpose remain for public defenders as a collective.
Increasingly, public defenders are organizing themselves — most importantly through unions — to achieve shared goals. But unlike other public sector workers who have pioneered “bargaining for the common good,” such as teachers and nurses, public defenders must contend with the reality that a better world may obviate the need for their labor. That is, the need for public defenders is entirely manufactured by our carceral system; it exists because we criminalize and incarcerate people. What if that changed? What if public defense worked toward that change? Could it?
The role of public defenders has never been more urgent, and yet has never been more unclear. The millions of people brought into our criminal system every year need excellent legal representation to be released from its clutches. That is the core of the work. How can defenders best tackle the power dynamics inherent in that work? And what does it mean that many in the field are trying to do more, be more, serve more? The field sits at a crossroads. For those seeking to navigate this crossroads with moral and political clarity, Simonson’s book offers an invaluable resource. For, while lawyers are not the book’s protagonists, they are never far from the center of action. The lessons that Simonson offers to public defenders are too important to bypass, too useful not to pull out and amplify. If they are heeded, then public defenders hold tremendous potential to help make even more space for the radical acts of justice that are creating a new future for us all.
