Reviving the Hero Image of the Public Defender by Changing the Story of Our Clients
The criminal justice story has been rewritten. No longer is the outlaw flawed and empathetic. No longer is the defense lawyer the criminal justice hero. Now the accused is a dehumanized menace. And the heroes are law enforcement and prosecutors.Fifty-one years ago the Supreme Court made clear that the defense attorney is the vehicle necessary to ensure that justice is done -for it is through counsel that all rights are realized - and that if we are to live up to our claimed commitment to equal justice we must ensure poor people have advocates to ensure this critical ideal is a reality. The year was 1963. America was going through important growing pains as we confronted that fact that we presided over inexcusable civil rights abuses against our citizens in areas of housing, voting rights, and commerce. Understood in this context, Gideon v. Wainwright was a civil rights case addressing important civil rights abuses in our criminal justice system. With that monumental decision, the public defender became the hero of the American story of criminal justice – the American institution that has always served the barometer of the gap between our rhetoric and our actions.
As the son of a professor of popular culture (shout out to my mother, Elayne Rapping), I was raised to understand that public sentiment about the issues of the day is both shaped by and reflected in movies and television. And these media certainly helped shape the public sentiment that gave rise to our collective demand for justice during this time. In Hollywood, our biggest stars played defense lawyers. Jimmy Stewart was admired as Paul Biegler, who defended a man accused of murder in Anatomy of a Murder. And Gregory Peck helped set the standard for American justice as Atticus Finch in To Kill a Mockingbird. Perry Mason was one of the nation's most popular television shows, and there were shorter-lived television series like The Public Defender and Justice about lawyers for the poor. The defense lawyer was viewed as the hero, standing up for the powerless against the powerful machinery of the government. This was a quintessentially American ideal.
But we cannot understand our admiration for this champion of justice without also appreciating that this was an era in which we had empathy for those outside the law. Outlaws were also portrayed by our nation's biggest stars in movies like Butch Cassidy and the Sundance Kid (Paul Newman and Robert Redford), Bonnie and Clyde (Warren Beatty and Faye Dunaway), and Dog Day Afternoon (Al Pacino). These were lawbreakers who were sympathetic and humane. They were flawed but likable men and women. And we cheered for them.
But we now live in a different time. As politicians capitalized on the unrest stemming from our struggle for civil rights, they successfully “otherized” communities of color, paving the way for a war on crime that targeted the most vulnerable among us. In the decades to follow, the image of the outlaw was redefined as a young, violent, black, “super-predator.” And as the public became fearful, it stopped rooting for the defense lawyer. The image of the public defender took a hit, morphing from hero into pariah. As we have come to accept the image of the accused as less than human, we have lost respect for the right to counsel. The criminal justice crisis cannot be understood without appreciating how our national attitudes about justice, the accused, and defense counsel have changed. The criminal justice story has been rewritten. No longer is the outlaw flawed and empathetic. No longer is the defense lawyer the criminal justice hero. Now the accused is a dehumanized menace. And the heroes are law enforcement and prosecutors.
It is up to us as a community of public defenders to revive the hero image of the public defender. We must do this by changing the narrative about the people we represent. In this sense our job is greater than the critically important work we do in courtrooms across the nation every day. It also includes the way we communicate about who are our clients, what justice means, and the important role we play in realizing it. Collectively, it is up to us to reclaim a criminal justice narrative in which people are worthy of compassion, human beings are understood as much more than their greatest flaws, and those who stand up for the most vulnerable among us are fulfilling our highest ideals.
These sentiments are more fully fleshed out in a Keynote Address Jonathan Rapping delivered at a conference celebrating the 50th Anniversary of Gideon v. Wainwright at the University of Iowa Law School. The full text of that address can be found here: http://blogs.law.uiowa.edu/ilr/wp-content/uploads/2014/07/A2_Rapping.pdf.