Public Defenders Aren’t Principally About “Public Safety,” and That’s Ok

February 2, 2023

The notion that public defenders, constitutionally-mandated criminal defense lawyers, are part of the “public safety” sector has seemed to spread in the last couple of years—based on conversations in the field and a number of pieces in the media.

Philadelphia’s chief public defender, Keisha Hudson, wrote last year, for example, that “Effectively representing our clients, which includes connecting them to resources proven to address their own traumatization and victimization, is critical to stopping the cycle of violence and truly creating public safety.”

This is not untrue—especially in a large urban public defender office that receives philanthropy money as an additional revenue stream. These kinds of offices can help their clients rebuild their lives, even before a conviction is handed down, in ways that reduce future risks for clients and others. That’s clearly a good thing.

But most public defenders’ offices receive only state money, and most US states share the so-called “tough on crime” ideology. That means such offices, with their overworked and underpaid staff, rarely have the funding or time to “connect clients to resources.” And they usually don’t.

It is not a macro-level job that principally demands consideration of what is best for society at large—even if its existence is inherently beneficial to society.

There are vital tasks that they do regularly perform, however. They represent the interests of clients who are not wealthy, both before and during criminal cases. In doing so, they look for the most brazen constitutional violations by police, such as illegal search or seizure, or unlawful interrogations. And armed with this or other information, they negotiate with prosecutors to try to get charges dismissed or reduced.

It is, in other words, not a macro-level job that principally demands consideration of what is best for society at large—even if its existence is inherently beneficial to society. Rather, it is a client-oriented job, protecting the rights of the individual. What is in the best interest of a client is sometimes not in the best interest of public safety, even long-term. And that’s ok.

The “public safety” framing of public defenders’ roles has some influential proponents. But it seems to me a mistaken advocacy strategy—perhaps designed to protect precarious budgets, or to sway wavering segments of public opinion. Amid an established national backlash to the George Floyd-inspired wave of support for decarceration, it likely won’t even do that.

I would argue that leading with a “public safety” framing of public defenders’ role gives too much credence to the older position that counsel is guaranteed in criminal proceedings merely because of “due process.”

Instead, I believe it’s critical that we take ownership of defenders’ main task of defending people accused of crimes, including the most heinous. Defenders can and should be proud of that, because they are the only public officials who fight for the humanity of people in this position.

It should not be controversial to argue that all people in the dock are human. But in our culture, this is often treated as an incitement. The right hates people accused of crimes, professing empathy for victims while adhering to a repressive “law and order” concept. And while the left professes support for decarceration, it reserves its sympathies, in certain cases, for victims, and—certainly in the cases of many office-holders—is perpetually wary of the “soft on crime” label the right loves to exploit. Many who may feel compassion for the traumatized or mentally ill person who committed a crime are politically incentivized to keep their mouths shut.

Public defenders exist primarily to protect not “public safety,” but the accused. That matters, and we should platform and value it.

It is understandable that public defenders, with incredibly arduous caseloads, want to protect their woefully inadequate budgets. It is common for public defenders to be paid tens of thousands of dollars less than their prosecutorial counterparts, in a reflection of how little the system values “due process.”

But public defenders I have spoken with also want respect. They are sick, among other things, of being pounced on whenever they wish to have a political voice outside the courtroom.

I cannot see, however, how a “public safety” narrative will help with that, if it obscures the principle purpose of the role and is even illogical in some instances: Would using the Fourth Amendment to suppress evidence of an alleged murder weapon to get an acquittal, for example, be in the service of public safety? The human-rights justification, on the other hand, is as clear as it might be unpopular.

An amplified “public safety” framing could even risk undermining the relationship between defender and client, when trust, in this system, is so hard to build but can make all the difference to a successful defense.

The very existence of the public defender in a country like ours could be seen as a small miracle, and I have no wish to question the motivations of those who judge, in their beleaguered positions, that different tactics are necessary to ensure the survival of their work.

Some public defenders are vocal public advocates for human rights, for instance, while others—a group whose position I’ve come to understand more than I once did—feel they can better serve current and future clients by keeping their heads down, so as not to attract damaging political fire.

Anyone with the dedication to fight for the rights of people accused of crimes deserves our gratitude. In this climate, it’s to be hoped that they practice plenty of self-care.

But those of us whose work is not directly threatened by speaking out, at least, should say it plainly: Public defenders exist primarily to protect not “public safety,” but the accused. That matters, and we should platform and value it.



Photograph by Nick Youngson via Blue Diamond Gallery/Creative Commons 3.0

Rory Fleming

Rory is the founding attorney of Fleming Law LLC, an immigration law boutique in Philadelphia. He has worked for a variety of criminal justice and harm reduction nonprofits, including Law Enforcement Action Partnership and Harvard Law School's Fair Punishment Project, and provided campaign services for over a dozen district attorney campaigns. His articles have appeared in the Atlantic, Slate and many other outlets.

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