PUBLIC DEFENDERS
In 1963, the landmark Supreme Court case Gideon vs. Wainwright passed, which established the need for free legal counsel. The claims by Gideon were supported by pointing to the Constitution’s implication of the sixth amendment (Oyez, 2022). The sixth amendment states, “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial.... and to have the Assistance of Counsel for his defense.” (Law Cornell, 2022). The Supreme Court came to the unanimous decision that all persons being charged in a criminal case were entitled to assistance with legal counsel by the courts. Now that all states must provide legal counsel to those who are considered indigent, we see the birth of public defense offices and public defense attorneys across the country. (Oyez, 2022)
What is Rationalization and who is George Ritzer?
The Oxford Dictionary definition of rationalization "The action of making a company, process, or industry more efficient, especially by dispensing with superfluous personnel or equipment?"
George Ritzer is an American sociologist whose studies are centered around globalization and social theory. George Ritzer's theory of Mcdonaldization implies that organizations, companies, professions, and almost anything can become rationalized by following four principles (Ritzer, 1996). The four principles that Ritzer believes need to be implicated to rationalize anything are efficiency, predictability, calculability, and control (Ritzer, 1996). By applying these principles to public defenders, I examined the efforts that the United States has taken to strengthen the system.
The Establishment of Public Defense Offices
The idea of public defense offices was submitted by California's first female attorney, Clara Shortridge Foltz. She presented her arguments in a speech in 1893 at Chicago’s world fair, which was decades before Gideon vs. Wainwright. Foltz insisted that since there was an office for public prosecutors, there should be one for public defenders.
Is AI Going to Replace Public Defenders in the Future?
Technological advancements have been replacing many workers in different occupations. The answer pertaining to public defenders is a little more complex. Overall, there is some evidence to support the theory that technology has sped up the legal process for many public defenders. Non-human technology has helped with simplifying case management by allowing for automated systems. Many simple tasks cannot be done automatically, such as: “scheduling meetings, organizing contact lists, managing documents, and controlling billing data” (Moini, 2019). Writer Mark Cohen suggests that the job of an attorney takes very tactical, intellectual, and personalized skills that cannot be simply replaced by technological advancements (Mark, 2019).
Precedent and Case Law.
Predictability is something many public defense offices have struggled with over time; there is now more leeway because of precedent and case law (Precedent, 2020).
Precedent
When the profession of an attorney was initially established, there was not much case law to study. Throughout the years precedents have been set. A precedent is a court decision that acts as a supreme rule for other cases that face the same legal issue. Precedents ensure that individuals with similar legal issues are treated with the same approach and eliminate the need for judges to incorporate personal views on a case-to-case basis (Precedent, 2020).
Case Law
Case law dives a bit deeper than precedent. Case law is a mere collection of precedents in a single place. Case law changes based on location. Now that attorneys and public defenders can study case law and precedent, it has made it a lot easier to predict their case outcomes. Public defenders can use the knowledge to successfully communicate the next steps and possible outcomes to clients.
Positive Advancements For Public Defense Offices.
A few things that have contributed to the increased efficiency of public defenders are increased education requirements and the digitization of legal documentation.
Technology
The most recent form of technological advancement to grace the office of public defense is a direct effect of Covid 19 that has proven very helpful (First Light, 2022). Public defenders have expanded their ability to stream and video chat lawyer/client communications by eliminating unnecessary steps that worked as boundaries. Technology has allowed attorneys to meet with more clients a day, which means that attorneys and clients have more time to establish relationships and a strict understanding of what direction they’d like to move in when considering the case (First Light, 2022).
Educational Advancements
A person seeking a legal degree must get an undergraduate four-year degree and then continue to a three-year legal graduate program to obtain a Juris Doctor. Although these are the technical requirements, writer for Forbes, Mark Cohen, believes that additional skills and certifications are now needed to effectively do the job. He writes, “The transition of law from lawyer-centric, provincial, labor-intensive guild to a customer-focused, global, and digitized industry requires new skillsets and training” (Cohen, 2019). Cohen continues by saying, “Knowledge of the law” alone is insufficient for all but a handful of elite lawyers.
Negative Effects of Rationalization on Public Defenders.
In contrast, a few things that have contributed to the decrease in efficiency over time are low funding, high case volume, and the lack of public defenders.
Low Funding
One of the biggest problems with the system is the insufficient funds provided by the US government. The article describes how public defenders have grown even more ill-equipped forms of representation because of budget cuts. Lopez writes, “One example of the national problem: According to a 2009 paper by California Western School of Law professor Laurence Benner, for every dollar spent in California on prosecutors, just 53 cents are spent on public defenders.” (Lopez, 2016) Public defense offices are still seeing budget cuts today.
High Case Volume
Public defenders have seen a rapid increase in case volume. The National Bar Association made their recommended number of cases a year per attorney 150 felony cases or 400 misdemeanors. (Higgins, 2018) To show how overworked public defenders are, John Higgins, writer for The Daily Kansan states, “according to the Bureau of Justice Statistics, the annual caseload assigned to public defenders spanned from 50 to 590 cases.” (Higgins, 2018) Public defenders seeing an almost 200 case surplus than the average attorney.
IRRATIONALITIES
Public Defenders have very tactical and technical jobs. They must learn the law and then recite, practice, and explain the law in almost all cases. Like many other jobs, there can too be irrationalities found within this occupation.
False Friendliness
Zachary Cloud, a trial attorney, and legal writer talks about how many public defenders carry a negative stigma over their heads. (Cloud, 2011) He states, “Ask a person on the street if they’d want a public defender representing them, and the answer will probably be uniform 'no.' Many attorney client relationships are ruined by negative stigmas, stereotypes, and false narratives" (Cloud, 2011). German Lopez, talks a lot about how many states are understaffed when it comes to public representation. This leads to the final point that because of the insufficient time provided to defense attorneys it’s sometimes impossible for friendly relationships to be established.
Disenchantment
Many attorneys explain the faults of being a public defender, and it can be closely associated with the disenchantment of the occupation. Ritzer describes disenchantment as the withdrawal of, “enchantment, magic, and mystery." Tina Peng, a writer for the Washington Post, writes that public defense attorneys are underpaid, understaffed, and under advocated. Many lawyers are unable to give custom and magical experiences to customers because of their lack of time, as a result of high case volume.
The Dehumanization of Public Defenders
One may say that the dehumanization of the defendants and public defenders is the biggest irrationality in the occupation's rationalization. Tina Peng makes a statement about how clients are not able to receive effective representation (Peng, 2016). It can be concluded that clients are not receiving adequate care (Lopez, 2016). We also see the unfair treatment of public defenders. Peng Writes, “My frustration with our offices' persistent underfunding...It is that when we are constantly required to do more with less, our clients suffer" (Peng, 2016). As Peng describes above, attorneys are left with lasting emotional distress and it could be viewed as dehumanizing for some attorneys.
Public Defenders Salaries
Public defenders' main premise and goal is to provide free legal care to the indigent, which means that consumers pay nothing, but the calculability of the job does not stop there. Public defenders have many quantified aspects that have changed over time, such as funding from the government and salaries.
Compared to private attorneys, public defenders make a significantly lower salary. The typical salary for a public defender is $56,000, which would mean that public defenders would qualify as lower-middle-class salaries (Zippia, 2021). The average salary of a public defense attorney increases over time as they gain more experience in the field.
An article published by The Appeal points out that on average private attorneys are paid a significantly higher amount than public defenders, which are both funded by the city. The article goes on to say, “What was made clear was that the underpayment of people who work in public defender offices, including those who are not attorneys, is a choice by the city and one that has dire consequences for the diversity and quality of those who become public defenders and the longevity of public defense careers.” (The Appeal, 2018)
GIDEON'S PROMISE
There is a growing number of attorneys that are ready to “cancel” the current culture that has aided in the downward spiral of service (Scar, 2021). Gideon’s Promise, a non-profit in support of public defender reform, has aided in the current efforts to transform the system. Gideon’s promise believes that their efforts will not only reform public defense offices across the country but the entire criminal justice system. Steven Scaroughborough, a writer for Arnold Ventures, a criminal justice website, writes, “Gideon’s Promise is working to transform the criminal justice system by empowering public defenders and mobilizing them as agents of change within the criminal justice reform movement"
Key Concepts and Overall Take Aways.
Research has proven that the occupation of public defenders has changed a lot over time but to what extent was it effectively rationalized? The premise of the provided research supports the statement that public defenders have not been effectively rationalized. All in all, we have not seen enough evidence to support Ritzer's theory of how a rationalized profession should operate. We have learned about the current efforts from Gideon's promise and others to rationalize the public defense system with the goal of not only making it more efficient for clients but for the attorneys themselves too.
Credits
1. Pfaff, John. “WHY PUBLIC DEFENDERS MATTER MORE THAN EVER IN A TIME OF REFORM.” The Appeal, The Appeal, 2018, https://theappeal.org/why-public-defenders-matter-more-than-ever-in-a-time-of-reform-9b018e2184fe/.
2. Brunt, Alexa. “Poor People Rely on Public Defenders Who Are Too Overworked to Defend Them.” The Guardian, 2015, https://www.theguardian.com/commentisfree/2015/jun/17/poor-rely-public-defenders-too-overworked.
3. Ritzer, George. The Mcdonaldization of Society. Los Angeles: Sage, 1996. Print.
4. "Gideon v. Wainwright." Oyez. Accessed April 5, 2022. https://www.oyez.org/cases/1962/155.
5. “Sixth Amendment.” Law Cornell, Cornell law school, https://www.law.cornell.edu/constitution/sixth_amendment. Accessed 5 Apr. 2022.
6. “Understanding Gideon’s Impact, Part 2: The Birth of the Public Defender Movement.” Sixth Amendment, 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/. Accessed 4/5/22.
7. “5 Ways Technology Is Changing the Legal Profession.” First Light, https://www.firstlight.net/5-ways-technology-is-changing-the-legal-profession/. Accessed 5 Apr. 2022.
8. Cohen, Mark. What’s A Lawyer Now? Law’s Shift from Practice to Skill. Forbes, 2019, https://www.forbes.com/sites/markcohen1/2019/09/23/whats-a-lawyer-now-laws-shift-from-practice-to-skill/?sh=f919aa1745b8.
9. Lopez, German. Adam Ruins Everything Looks at One of the Ways the US Criminal Justice System Is Tilted against the Poor. Vox, 2016, https://www.vox.com/policy-and-politics/2016/12/14/13953136/public-defender-adam-ruins-everything.
10. Higgins, John. “Higgins: Public Defenders Are Overworked and Underfunded.” Kansan, University of Kansan, 2018, https://www.kansan.com/opinion/higgins-public-defenders-are-overworked-and-underfunded/article_bf473818-9024-11e8-abbb-c7a06732e8b5.html.
11. Moini, Dorna. Are Robots Replacing Lawyers? Not Like You Think. ABA LAW, 2019, https://www.lawpracticetoday.org/article/robots-replacing-lawyers-not-like-you-think/.
12. “Case Law.” Law Cornell, Cornell Law School, 2020, https://www.law.cornell.edu/wex/case_law
13. “Precedent.” Law Cornell, Cornell Law School, 2020, https://www.law.cornell.edu/wex/precedent
14. Snider, Brett. “How to Get a Public Defender.” Find Law, 2013, https://www.findlaw.com/legalblogs/criminal-defense/how-to-get-a-public-defender/.
15. “The High Costs of Low Pay for Public Defenders.” The Appeal, 2018, https://theappeal.org/the-high-costs-of-low-pay-for-public-defenders/.
16. “PUBLIC DEFENDER DEMOGRAPHICS AND STATISTICS IN THE US.” Zippia, Zippia the Career Expert, 2021, https://www.zippia.com/public-defender-jobs/demographics/.
17. Cloud, Zachary. Are Public Defenders Any Good? Word Press, 2011, https://zacharycloud.wordpress.com/2011/06/02/are-public-defenders-any-good/.
18. Peng, Tina. I’m a Public Defender. It’s Impossible for Me to Do a Good Job Representing My Clients. The Washington Post, 2015, https://www.washingtonpost.com/opinions/our-public-defender-system-isnt-just-broken--its-unconstitutional/2015/09/03/aadf2b6c-519b-11e5-9812-92d5948a40f8_story.html.
19. Scarborough, Steven. “Why Transforming the Culture of Public Defense Can Advance Greater Criminal Justice Reform.” Arnold Adventures , 2021, https://www.arnoldventures.org/stories/why-transforming-the-culture-of-public-defense-can-advance-greater-criminal-justice-reform.
20. “What Percentage of Criminal Cases Go to Trial.” Nova Legal Group, Nova Legal Group P.C, https://www.novalegalgroup.com/what-percentage-of-criminal-cases-go-to-trial/. Accessed 6 Apr. 2022.
Credits:
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