Because the war against mass incarceration is not homogeneous or monolithic. It consists of separate and only tangentially related daily battles in courtrooms across the country. The individual targeted by his government for imprisonment cares little for incarceration rates or trends but is certainly hyper-aware of the efficacy of his attorney—often the only meaningful barrier to that loss of liberty. But while the talent and commitment of that attorney is most often beyond reproach, the numbers pronounce a stark verdict about this war: we, those devoted to representing defendants too poor to hire an attorney, are losing.
It’s an ongoing loss occurring at the profoundest level. So if our society has at least identified the problem it has yet to recognize that a thriving indigent defense bar is at the heart of any solution. And if a prerequisite to indigent defense providers fulfilling their constitutional mandate is a societal recognition of the outsized importance of same, then it is precisely here that our society most grimly fails. Support for public defenders and the ideals that infuse their work is scant. Instead, the various systems by which our nation provides legal representation to its most vulnerable citizens, impoverished people facing criminal prosecution, is under concerted assault.
At the heart of the problem are those powerful and close relatives, time and money. Nationwide, funding for indigent defense is laughably inadequate. This lack of money is not an inalterable fact, it is evidence of misplaced priorities. The talent and commitment found in the indigent defense bar is exceeded nowhere else in the legal profession. But even the most talented and diligent attorney has limits. There is no attorney who is not made more effective by handling fewer matters and thereby devoting more time and care to each. The calculus is simple. More money hires more attorneys who then handle fewer cases, which they are then able to handle more effectively.
What seems underappreciated is how much this battle for resources, like those battles in the courtrooms, is at its core an intellectual one. Society will fix only what it has the will to fix. And that will can only be generated by the legal profession’s stock and trade: intellectual argumentation.
Which brings us to For the Defense. This page is our effort to contribute to this critical ongoing debate that has only one viable position: America must break its addiction to incarceration. The legal scholarship and other pieces featured here will predominately serve at least one of two purposes, though often a combination of the two. Some will focus on the specifics of this special practice area, where the stakes couldn’t be higher but the available resources seem to reflect the opposite. The aim here is direct assistance, tangible insights and information that can enhance the indigent-defense practitioner’s effectiveness. Other pieces will veer to the general with a primary purpose that can maybe best be termed oppositional. In every case the intent is clear, elucidation mixed with inspiration.
We hope you’ll read with interest and maybe even contribute. The indigent defense community has traditionally been a close-knit one. Maybe something about zealously defending the rights of the most outcast makes for good bonding. Or maybe it’s being surrounded by so many with delusions of fairness while constantly being reminded of the forgotten. Whatever the reason, we believe our bond is centrally an intellectual one. We further believe that through powerful prose and discourse and argument and logic and analysis and persuasion, through all those pursuits inherent to humanity’s lofty achievement we call the law, we can deepen understanding and effect change. Here’s our attempt.
