Ketanji Brown Jackson hearings spotlight public defenders’ maligned role

(Reuters) – Over the past year, public defenders have found themselves in the ironic position of having to defend their role in the U.S. legal system – as Constitutionally required defenders of public rights – in the public sphere.

Last July, more than 50 criminal justice and defense organizations wrote Congress complaining that public defender nominees for judgeships were being unfairly targeted for criticism compared with former prosecutors or corporate lawyers. Earlier this month, Senate Republicans described one such nominee as a “zealot” because she had argued against the death penalty in a murder trial.

The clash reached a crescendo this week, as conservatives continued to attack U.S. Supreme Court nominee Ketanji Brown Jackson for her previous work representing defendants unable to afford an attorney. Jackson worked from 2005 to 2007 as a court-appointed lawyer paid by the government to represent indigent criminal defendants, including four Guantanamo detainees.

Republican Senators have said that Jackson has a hidden agenda to let violent criminals and pedophiles back onto the streets, an unfounded accusation that connects the first Black woman nominated to the high court with criminality. Republican criticisms have been reported by Reuters and other major news media as mischaracterizations and an apparent political nod to QAnon conspiracy theorists.

A spokesperson for Senator Chuck Grassley, the ranking Republican on the Senate Judiciary Committee, didn’t immediately respond to my queries about conservatives’ questions surrounding Jackson’s public defender record.

Jackson explained in the March 22 confirmation hearing that she cares “deeply about our Constitution and the rights that make us free.” She added, “Defense lawyers perform a service, and our system is exemplary throughout the world precisely because we ensure that people who are accused of crimes are treated fairly.”

April Frazier Camara, president and CEO of the National Legal Aid and Defender Association, told me the hearings “unfortunately” confirm a “lack of public understanding” about public defenders’ role in preserving fundamental rights to counsel and presumption of innocence.

Indeed, the disagreement over the meaning of those rights goes to how we define justice in this country. Do we actually ensure people accused of crimes are treated fairly? Are the values the Democratic nominee expressed about defendants’ rights widely shared? Or do we lean more toward a belief that justice means certain offenders, such as pedophiles, should just die in jail, as some Republican leaders suggest?

The reality is that there is broad consensus in the legal community, including among public defenders, that our justice system has perpetually fallen short of its promise of adequate counsel to all defendants.

Although the rights of the accused are famously written into our founding documents, there’s a strong argument that many Americans and lawmakers don’t actually view those rights as a legislative or policy priority — partly because of a punitive attitude toward defendants that is tied to racial stereotypes and resentment.

Those rights are included in the first 10 Amendments, adopted in 1791. The idea is that it is fundamentally unfair for individuals to face the power of the government – represented by publicly funded prosecutors – without certain guarantees, including their own well-trained counsel.

The first public defender office was established in 1914, in Los Angeles County, according to a 2019 report by the Brennan Center for Justice.

By contrast, our public prosecution systems predate public defenders by more than two centuries: The first public prosecutor in America was appointed in 1705, in Hartford, Conn. In fact, the right to counsel didn’t apply in the overwhelming majority of criminal proceedings for roughly 170 years, until the Supreme Court decided in 1963 that the Sixth Amendment applies in state courts, in Gideon v. Wainwright.

From that time until 2000, “a major independent report has been issued at least every five years documenting the severe deficiencies in indigent defense services,” according to a Harvard Law Review note published in 2000.

The premise underlying Republicans’ criticism of Jackson’s public defender background is also nothing new: Politicians have continuously questioned the legitimacy of the defender’s role, and spending tax money on indigent defense has long been unpopular, according to the Brennan Center report.

In 1976, Georgia prosecutors described a bill for statewide funding of indigent defense as “the greatest threat to the proper enforcement of the criminal laws of this state ever presented.” In 1995, the South Carolina attorney general criticized public defenders as “lobbyists whose only goal is to stop executions at any cost.” Supreme Court Justice Clarence Thomas argued in a 2018 ruling that the “expansive rights” granted in Gideon don’t square with the original meaning of the Sixth Amendment.

Empirical research over the years has also shown substantial support among Americans for “tough-on-crime” policies — and a connection between those sentiments and racial bias, according to a 2020 law review article by Michael O’Hear, a law professor at Marquette University Law School, and Darren Wheelock, a Marquette University criminology professor.

“One theory is people become punitive because they’re afraid of being victimized and believe harsh punishment equals protection, but the research – ours and others’ – doesn’t bear that out,” O’Hear told me. “Punitiveness is embraced more as an expressive value, tied to political ideology, which is in turn connected to racial resentment.”

Surveys have also shown many Americans seem to believe that most defendants are likely guilty. The criticism against Jackson “plays on a lot of deep-seated public skepticism of criminal defendants and the people who represent them,” O’Hear said.

That skepticism may also be reflected in public spending.

Since 2018, public defenders in Oregon; Virginia; Jacksonville, Florida, and New York City, have raised outcry about disparities in pay and resources compared with prosecutors.

Last week, Minnesota officials averted a potential strike by public defenders when they reached a contract agreement including pay increases, the Associated Press reported March 19.

And, on March 18 — the 59th anniversary of the Gideon decision — the National Legal Aid and Defender Association announced a letter urging Congress to pass a bill aimed at creating pay parity between state and local defenders and prosecutors.

The attacks against Jackson have struck many as distasteful political theater. Indeed, the scope of the rights of the accused are settled law, at least in terms of current Constitutional precedent.

That said, conservatives’ rhetoric suggests the jury might still be out in the court of public opinion.

“We’re pushing hard in support of pay parity, but also in support of a national conversation in Congress about why it’s so important for the federal government to support public defense,” Camara said.

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