When the New York Times interviewed him for an article about indigent defense, Louisiana public defender Jack Talaska had one hundred and ninety-one cases to manage at once (Oppel). This is five times the amount of work that the American Bar Association deems appropriate for a lawyer and still be able to fulfill their duty of providing competent representation.
This web page explores how rationalization has irrevocably shaped the public defense profession, helping us unpack the question: why are so many indigent attorneys facing situations like Mr. Talaska?
On the rationalization of public defense: "The result... is an assembly line into prison, mostly for poor people of color, with little check on the reliability or fairness of the process.” (Primus 121)
First: What is McDonaldization?
Key points:
Efficiency, calculability, control, and predictability are the four principles that govern McDonaldization, a process designed to maximize quantity over quality. Ironically, rationalization can also produce systemic irrationalities, like homogenization and dehumanization.
A short timeline of the development of public defense
1893: Clara Shortridge Foltz proposes a Congressional bill to mandate free legal counsel for all American defendants at the Chicago World's Fair ("Scarce Before Covid").
1910: San Fransisco establishes the first public defender offices ("Birth of the Public Defender")
1940s: Becomes common for most urban areas (Chicago, New York City, Los Angeles) to appoint a single public defender to handle all cases with impoverished defendants ("Birth of the Public Defender").
1963: SCOTUS hears Gideon v. Wainwright. A new legal precedent emerges: SCOTUS declares that any individual, regardless of wealth, has the right to a lawyer in both state and federal cases. This is when public defense officially becomes a profession ("Birth of the Public Defender").
1960s: McDonalds begins adopting rationalization for its business model; "McDonaldization" starts spreading across the nation.
1980s: Reagan's "tough on crime" model triggers an exponential increase in incarcerations, particularly of Black and brown communities (Platt). The U.S. prison population increases 700% in two decades (Ghandnoosh).
1984: SCOTUS hears Strickland v. Washington, which sets a very forgiving precedent for the quality of "effective counsel" (Leonetti 394).
1990-present: The U.S. prison population peaks in 2007 and has mildly declined in recent years ("U.S. Prison Statistics"). The expectations and day-to-day responsibilities of public defenders has remained consistent since Strickland was passed.
On efficiency:
- Carrie Leonetti, former public defender, argues in her essay "Painting the Roses Red: Confessions of a Recovering Public Defender," that efficiency was the downfall of individualized justice (395).
- The average indigent defense lawyer is assigned at least three hundred and fifty cases a year (“State Public Defender Statistics”). Even if they wanted to take each case to trial, it would be physically impossible.
- Public defenders are rewarded for moving their cases through the system more quickly.
- The high likelihood of a plea deal being made means that the public defense office and the prosecution spend less time actually investigating the crime, including skipping witness interviews and neglecting to collect all evidence from the crime scene (Schulhofer 142).
On predictability:
- Many public defenders feel co-opted by the system for which they work because rather than defending their clients, they are forced to "grease the wheels of justice" (Leonetti 396).
- Former defender Jack Talaska said in an interview with the New York Times that "the workload can be overwhelming even under the best circumstances, and most offices never experience the best circumstances” (Oppel)
- Public defenders suffer from higher levels of burnout, depression, and anxiety in comparison to prosectors, particularly those who identify as empathetic and want to help their clients (Smith 1206).
On control:
- Public defenders are extremely limited in their ability to pursue individualized justice for their clients because they risk alienating the prosecutors and judges.
- David Friedman, law professor: “Accommodat[ing] to the case management and budgetary priorities of the court and county government is a fact of life” (86-87).
- Public defenders who have requested a cap on their caseload or pursued trial for a client have been rejected, penalized with more cases, and demoted (Leonetti 386) (Friedman 87-88).
- The expectation that lawyers encourage their defendants to take plea deals can erode trust between attorneys and clients (Friedman 86).
- The lack of agency and active engagement with each client can cause critical thinking and legal analysis skills to atrophy. This rendering the public defenders puppets of the judicial system (Primus 123).
On calculability:
- Public defense is severely underfunded. 4 out of 5 defendants rely on public defenders for legal representation, but only 5% of the national criminal justice budget is funneled into indigent defense ("Economics of Incarceration").
- The average private lawyer makes 2x as much money as a public defender ("How Much Does a Lawyer Make?").
- Convicting high numbers of individuals, funding large prisons, and investing in policing are all quantitatively higher priorities than public defense in America (Johnson).
Irrationalities: Dehumanization and homogenization
Dehumanization: the "quantity over quality" equates defendants with products to be moved along a mass production line (Bohm).
Homogenization: indigent defense lawyers are forced to adhere to strict concepts of appeasing the judges and prosecutors, of causing as few waves as possible, and of moving clients through the system as quickly as possible. They are rewarded for acting like robots (Leonetti 376).
The core of the criminal justice system is legal autonomy, also known as the ability for the judicial system to act independently of political agenda and influence (Sterling and Moore 68).
When criminal justice—which deals with life and death—becomes influenced by principles created for business, this autonomy becomes deprioritized and eventually forgotten (Sterling and Moore 69). In a system without legal autonomy, public defenders become homogenized agents of the judiciary who cannot protect their clients. All of the examples highlighted in the sections on efficiency, control, predictability, and calculability illustrate how rationalization has deeply impacted the public defense sector.
Takeaway from efficiency: Efficiency encourages plea deals because they are significantly quicker than trials. As a result, individualized justice is sacrificed for speed because the client is forced to plead guilty.
Takeaway from predictability: public defenders frequently suffer from burnout and emotional distress due to overwhelming workloads.
Takeaway from control: Public defenders are reduced to puppets of the judicial system because they are controlled by the expectation of the prosecutors, judges, and employers that they move clients through the system as rapidly as possible.
Takeaway from calculability: public defense is a calculably positive sector for the government--and indirectly, taxpayers. Quality defense is sacrificed for saving money.
We must ask ourselves: “What are the obligations of counsel in a mass production system of criminal justice?” (Schulholfer 1)
The answer to Schulholfer's question, according to the Sixth Amendment, is the provision of quality defense. Is all hope lost due to rationalization? Perhaps not. One positive result of "McJustice" are the technological resources that have emerged to supplement poor indigent defense. Websites like LawHelp and NOLO offer free legal guidance through articles and free online attorney chatting. If rationalization were to be wielded as a tool to support legal autonomy, it could actually improve public defense. Funds currently invested in policing could be re-allocated to modernizing the technology that public defenders use. The prosecutorial influence on public defenders could be controlled so as to preserve legal autonomy. Perhaps the predictable component of public defense would be the strict bureaucratic oversight and high expectations for quality representation.
All of this starts, however, with recognizing the damage inflicted by rationalization and re-centering social relationships in the public defense profession.
References
- “About Us,” LawHelp.org. https://www.lawhelp.org/about-us.
- “Inadequate Representation.” American Civil Liberties Union. https://www.aclu.org/other/inadequate-representation.
- Bhuiyan, Johana. “As Crime-Solving Goes Hi-Tech, Public Defenders Scramble to Keep Up.” The Guardian, February 24, 2023, https://www.theguardian.com/technology/2023/feb/24/fourth-amendment-battles-geofence-warrants-public-defenders-nacdl.
- Bohm, Robert M. “‘McJustice’: On the McDonaldization of Criminal Justice.” Justice Quarterly 23, no. 1 (March 2006), pgs. 127–146. https://doi.org/10.1080/07418820600552576.
- “Crafting a Public Defense Career: An Interview with Assistant Federal Defender Amanda David,” N.Y.U. Review of Law & Social Change. March 30, 2016. https://socialchangenyu.com/harbinger/crafting-a-public-defense-career-an-interview-with-assistant-federal-defender-amanda-david/.
- “Economics of Incarceration,” Prison Policy Initiative. Accessed February 19, 2023. https://www.prisonpolicy.org/research/economics_of_incarceration/.
- Friedman, David. “Rethinking Indigent Defense: Promoting Effective Representation Through Consumer Sovereignty and Freedom of Choice for All Criminal Defendants,” Santa Clara Law Journal, n.d. https://digitalcommons.law.scu.edu/facpubs/655.
- Friedman, David, and Schulhofer, Stephen, “Rethinking Indigent Defense: Promoting Effective Representation Through Consumer Sovereignty and Freedom of Choice for All Criminal Defendants,” USC Criminal Law Review (1993), https://digitalcommons.law.scu.edu/facpubs/655
- Guntzel, Jeff Severns. “Minnesota's public defenders speak: Results of the MinnPost survey.” MinnPost, 13 December 2010, https://www.minnpost.com/intelligencer/2010/12/minnesotas-public-defenders-speak-results-minnpost-survey/.
- “How Much Can a Lawyer Expect to Get Paid?” US News and World Report, https://money.usnews.com/careers/best-jobs/lawyer/salary.
- Initiative, Prison Policy. “Economics of Incarceration.” Accessed February 19, 2023. https://www.prisonpolicy.org/research/economics_of_incarceration/.
- Johnson, Carrie. “You Have the Right to a Lawyer, but Public Defenders Note a Lack of Resources, Respect.” NPR, March 18, 2023. https://www.npr.org/2023/03/18/1164296236/gideon-wainwright-anniversary-public-defender.
- Leonetti, Carrie. “Painting the Roses Red: Confessions of a Recovering Public Defender.” Knowledge at OSU (December 2014), Moritz College of Law, Ohio State University. Accessed 22 March 2023. https://core.ac.uk/display/159584177?utm_source=pdf&utm_medium=banner&utm_campaign=pdf-decoration-v1
- Oppel, Richard. “One Lawyer, 194 Felony Cases, and No Time,” The New York Times, https://www.nytimes.com/interactive/2019/01/31/us/public-defender-case-loads.html.
- “Gideon v. Wainwright,” Oyez, https://www.oyez.org/cases/1962/155.
- Ghandnoosh, Nazgol. “U.S. Prison Population Trends 1997-2017.” The Sentencing Project, September 17, 2019. https://www.sentencingproject.org/policy-brief/u-s-prison-population-trends-massive-buildup-and-modest-decline/.
- “NACDL - The Trial Penalty: The Sixth Amendment Right to Trial on the Verge of Extinction and How to Save It.” National Association of Criminal Defense Lawyers. https://www.nacdl.org/Document/TrialPenaltySixthAmendmentRighttoTrialNearExtinct
- Platt, Tony. “U.S. Criminal Justice in the Reagan Era: An Assessment.” Crime and Social Justice, no. 29 (1987). pgs. 58–69.
- Primus, Eve Brensike. "Defense Counsel and Public Defence." In Reforming Criminal Justice: Pretrial and Trial Processes, edited by E. Luna, 3, 121-45. Phoenix, AZ: Academy for Justice, 2017.
- “Public Defenders Were Scarce Before COVID. It’s Much Worse Now.,” Pew Research Center. June 21, 2022. https://pew.org/3N3o2pt.
- Schulhofer, Stephen. “Effective Assistance on the Assembly Line.” NYU Review of Law and Change 14, no. 1. https://socialchangenyu.com/wp-content/uploads/2017/12/Stephen-Schulhoffer_RLSC_14.1.pdf.
- “Understanding Gideon’s Impact, Part 2: The Birth of the Public Defender Movement,” Sixth Amendment Center. https://sixthamendment.org/the-right-to-counsel/history-of-the-right-to-counsel/understanding-gideons-impact-part-2-the-birth-of-the-public-defender-movement/#:~:text=The%20nation's%20first%20public%20defender,up%20all%20over%20the%20state.&text=part%2Dtime).
- Sterling, Joyce S., and Wilbert E. Moore. “Weber’s Analysis of Legal Rationalization: A Critique and Constructive Modification.” Sociological Forum 2, no. 1 (1987): 67–89.
- U.S. Department of Justice. “Special Report: State Public Defender Programs, 2007,” Bureau of Justice Statistics. file:///Users/noaroxborough/Downloads/4-%20public%20defender.pdf.
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