In Defense of Criminal Defense: The Making of a Public Defender
Working at the Federal Defender’s Office has transformed my social justice priorities and has given me a better understanding of the inequalities that exist in our criminal justice system. This realization began in the classrooms of my legal studies courses at Cal and has been solidified during my time in Sacramento learning firsthand about the specifics of criminal defense and the concept of a just punishment.
The first question anyone asks you when you work as a public defender is “How can you represent someone who is guilty? How can you represent the rapists, the murderers, the frauds, and the terrorists?” While I was initially unsure about how to respond, I now do so by deconstructing the assumptions and assertions posed by this question. Why wouldn’t I work to defend them? Here, it follows that the question should be, “Defend them from what? What type of defense do these accused deserve?” The concept of criminal defense goes beyond the assumptions of innocence or guilt. Innocence is just as problematic as guilt because both are highly subjective and rarely discussed at a more fundamental level.
Discussing guilt involves a variety of facts that need to be proven. It must be established that the crime actually happened. Was there a burglary and did it happen the way that the prosecution is claiming it happened? It must also be established that the defendant was indeed a participant in the crime. Were they the main actor or did they play a minor role? Why was the defendant implicated in that event? Concurrently, during every step of the process we must ensure that the government has not overstepped its boundaries and violated any constitutional rights. Did they have probable cause to arrest the defendant? Was there a warrant granted before the police entered the defendant’s home, or is all of the evidence obtained from that search inadmissible? This element of criminal defense is crucial to protecting the public from government encroachment and it reinforces the idea that there must be a uniform neutral system to gathering evidence and convicting an individual.
These components of criminal defense are immensely important to maintaining a stable and equitable rule of law. The government must be held accountable to following a set process by which to prove guilt in order to avoid discrimination, to build legitimacy for the rule of law, and to promote a just criminal justice system. If the public suspects that the system is unfair then the government loses political legitimacy in enforcing laws.
To me, the most problematic piece of the criminal justice system is attaining a just punishment. Even when the aforementioned components are proven, the consequences of such are not as clear. What should happen to a person after they have been proven guilty of committing a crime? Should everyone be sentenced equally for the same crime? The Federal Sentencing Guidelines were created to address the discrepancy in sentencing for the same or similar crimes. It established a point system that can be used to calculate the level of offense that a person has committed, taking into account details of the crime as well as criminal history. While they are not mandatory, they provide a tangible foundation to reinforce criminal sentences. These guidelines, however, are subject to statutory minimum and maximum sentences that sometimes create mandated punishments that may exceed or fall under the recommended sentence based on the sentencing guidelines. Finally, actors involved in determining a just punishment for the crime, including the judges, prosecutors, and the defense, have much discretion in negotiating an appropriate sentence. Those with less access to resources, often being low-income or part of a marginalized demographic, usually seem to incur less sympathy and harsher punishments in comparison to their wealthier, lighter-skinned counterparts.
The subjectivity and heterogeneity of the criminal justice process is observably problematic. While our job as public defenders is to prevent abusive, invalid, and/or excessive actions from the government in obtaining justice, our current system operates in ways that produce inequitable and unjust outcomes. People sit in jail for years without having been sentenced. If you are undocumented, you could be held there indefinitely awaiting trial. The jails are overcrowded, unsanitary, and dangerous. Defendants awaiting trail for DUIs sleep in cells alongside those convicted of murder or rape, and are pressured to affiliate with a gang based on race upon entering jail or face assault by other inmates. Does a person who committed fraud or burglary deserve to live in filth and fear because they felt there was no other way to access the resources necessary to buy their dying spouse a necessary medication (which was a real case I recently learned about)? Even if you believe they do, how long do they deserve to be there? Does their being there best serve justice or could justice have been achieved through restitution and community service? Does it do our society any good to spend more to imprison this person rather than investing in better social assets that can avoid the myriad cases resulting from a person’s lack of access to healthcare, mental health services, or some other social resource? Why do we imprison people at all? If it is for public safety, are there other ways to protect the public? Which crimes elicit this protection and when can we be sure that a person is no longer a threat? Why else would we imprison a person, and does imprisonment actually achieve that objective?
Working here in the Federal Defender’s Office directly with defendants has really made me think about what they face and the justification for their treatment. As interns, we are taught the tools necessary to best advocate for clients and to emphasize to the judge the real consequences of different punishments on our clients' lives. I have learned to do this by working with attorneys, paralegals, investigators, law clerks, and prosecutors on federal misdemeanor and felony cases. I also learned a lot through their Misdemeanor Criminal Defense Boot Camp where they gave us a crash course on federal criminal discovery and disclosure, preparing for court hearings, formulating a theory of defense, sentencing negotiations and guidelines, plea agreements, arguing motions, and the appeals process. We find success in proving innocence or in achieving a holistic understanding of the defendant that will produce a more appropriate sentence.
We recently visited the Sacramento County Jail where we had an intimate tour of the facility by one of the Sheriffs. I will never forget the emotional experience of seeing human beings caged up in tiny lonely enclosures. Our trip helps sensitize us to the real consequences that our defendants face and to better understand their frustration when interacting with them regarding their case.
In my studies, I hope to continue submersing myself in the topic of criminal justice to help advocate for better ways of addressing the social inequalities that lead people to end up incarcerated and to formulate a change of jurisprudential consciousness that will give these inequalities their proper weight in a holistic construction of just sentencing. The criminalization of the poor and of people of color intersects with all aspects of social inequality and incarceration is no longer an efficient or appropriate solution.