By Irene Oritseweyinmi Joe

While the public defender is critical to protecting individual rights in the U.S. criminal process, state governments take remarkably different approaches to distributing public defense services. Some states organize indigent defense as a function of the executive branch of state governance; others administer indigent defense through the judicial branch. The remaining state governments do not place the public defender within any branch of state government, instead delegating its management to local counties. This administrative choice has important implications for the public defender’s efficiency and effectiveness. It influences how the service will be funded and the extent to which the public defender, as an institution, will respond to the particular interests of its local community. So, which branch of government should oversee the public defender? Should the public defender exist under the same branch of government overseeing both the prosecutor and police—two entities the public defender seeks to hold accountable in the criminal process? Should the provision of services be housed under the judicial branch—although this branch is ordinarily tasked with being a neutral arbiter in criminal proceedings? Perhaps a public defender that is independent of statewide governance is ideal, even if that might render it a lesser player among the many government agencies battling at the state level for limited financial resources. This Article answers the question of state assignment by engaging in an original examination of each state’s architectural choices for the public defender. Its primary contribution is to enrich our current understanding of how each state manages the public defender and how that decision influences the institution’s funding and ability to adhere to ethical and professional mandates. It concludes the public defender should be an important executive function in this modern era of mass criminalization and articulates modifications that would improve such a state design by insulating it from pressure by other system actors.

106 Iowa L. Rev. 113 (2020)

By Irene Oritseweyinmi Joe and  Ben Miller 

Public defenders are tasked with the unenviable job of representing some of the most vulnerable people in society when they are accused of crimes. At the same time, public defenders receive little thanks for protecting the marginalized and instead face insurmountable odds with insufficient resources and limited public support. Premal Dharia, founder and director of the Defender Impact Initiative, said, “Public defenders are on the front lines of the devastation wrought by our system of mass criminalization and they are guided by an unwavering dedication to the very people being devastated.” As the coronavirus ravages communities, courtrooms, jails, and prisons, public defenders are now indispensable to confronting the epidemic. While not medical professionals, public defenders are the front line, often the only line, between their clients and incarceration. Since jails and prisons have become hotbeds of COVID-19, with infection rates exponentially larger than the general population, public defenders have the added task of not just protecting their clients’ rights, but also, in many cases, their lives. Dan Engelberg, the chief of the trial division for the Orleans Parish Public Defender in Louisiana, aptly characterized the efforts of public defenders nationwide over the last few weeks as “heroic and tireless” as they strive to protect the health, humanity, and lives of their clients. The Justice Collaborative Institute asked nearly 200 public defenders from across the country how the COVID-19 pandemic has impacted their work and personal lives. The responses are revealing. Nearly half, as of April 2, 2020, reported clients incarcerated in correctional facilities with at least one confirmed case of COVID-19. Over 80%  did not think their local court systems were doing enough to protect the health and safety of their clients. (See Appendix for results from the questionnaire). Their concerns went beyond the spread of disease. Public defenders expressed anger over the perceived lack of empathy for their clients’ health, frustration with the many officials who treat their clients’ rights as disposable, and mental distress over the impact the virus is having on their clients, their loved ones, and themselves. Taken together, their responses form a powerful argument in support of policies, also popular among voters, to dramatically and urgently reduce jail and prison populations in response to COVID-19. The frontline accounts of public defenders reveal that far too many people in positions of authority continue to undermine public health and safety by processing far too many people daily into the criminal legal system, while at the same time failing to protect the millions of people behind bars. By doing so, they continue to place the lives of millions—people incarcerated at correctional facilities, people who go to work there, and people who live in surrounding communities—at grave risk. Law enforcement, prosecutors, judges, and politicians should work with public defenders and urgently adopt policies to limit arrests, expand the use of cite and release, end cash bail, dismiss cases instead of needlessly dragging them out, and release as many people as possible from incarceration who do not reasonably pose a risk to public safety. Such steps can all be taken right now and are options public defenders across the country are advocating for, placing their personal health at risk in many cases, to do so.  

Davis, CA: UC Davis School of Law, 2020. 48p.