Chapter 1: How Can You Defend "Those People"?
Like every public defender, I have been asked this question countless times at parties, holiday meals, family gatherings, in the courtroom, and even on the street after a trial. People have also demanded an answer in hate mail, media interviews, and other less-than-friendly venues. My responses range from the flippant to the philosophical and purely political. The fundamental importance of the right to counsel. The primacy of the presumption of innocence. The need to check government power. Mass incarceration. Frankly, these answers are the autopilot reply for a career defender. And there is truth in them. But they do not fully explain why I chose to devote my life to defending people at the mercy of our criminal justice system, and to dedicate myself to changing it.
In America, anyone accused of a crime that carries with it a possible sentence of incarceration is entitled to counsel. This right to an attorney is a critical safeguard to protect those most vulnerable when the government seeks to take away liberty. Public defenders breathe life into that concept. They are the only institutional actors in the criminal justice system with the sole and unequivocal responsibility of defending the accused, no matter what the charge.
The guarantee of a public defender for the poor is essential to the proper functioning of an adversarial system of justice and has become even more critical given our seemingly insatiable appetite for jailing people, even before they've had a trial.
Mass incarceration is a truly American phenomenon. While the term mass incarceration has finally made its way into popular culture, I'm not entirely sure most people understand how truly horrifying the scale of this problem is.
America is home to less than 5 percent of the world's population, but about 25 percent of the world's incarcerated people live in America. Even by conservative estimates, at least five million people churn through our jails every year. That is larger than the combined population of Phoenix and Chicago, every year. It is no surprise, then, that nearly one in two adults in the United States has had a family member incarcerated, and as many as one in three has some type of criminal record. What's more, nearly two thirds of people in jail on any given night are not even serving sentences. They are behind bars awaiting trial, mainly because they cannot afford cash bail. Our criminal justice system has become so massive, it is the largest employer in our nation . . . right after Walmart. In fact, we run as many prisons, jails, and other correctional facilities as we do hospitals.
These alarming figures make us the most incarcerated nation on earth, yet we are no safer than countries with far fewer jails and prisons relative to their populations. But that's not all. Mass incarceration intersects with and compounds another crisis in our country: systemic racism. I'm talking not about individual acts of racial bias, conscious or unconscious, but about the way in which our history has shaped policies, institutions, and social practices to produce disparate outcomes in nearly every aspect of Black Americans' lives, from health and education to criminal justice and economic opportunity. When it comes to our criminal justice system, this problem is evident at every stage of the process. Black Americans are not only more likely to be stopped by the police, searched, and subjected to excessive use of force; they are also more likely to be detained before trial, overcharged, and harshly sentenced.
While I wish I could say it was purely my shock at our incarceration rates, or even the purity of the idea of a right to counsel, that drew me into public defense, there was also another influence: a group of women.
The year was 1980 and I was a law student at New York University School of Law. I had signed up for a law clinic called the Women's Prison Project, where law students worked under a supervising attorney to represent women on a variety of issues, including health care, child custody, and parole matters. The fact that the clinic served women in a maximum-security prison was largely incidental to me. I simply wanted to advocate for women wherever they were, and this was the only clinical offering that focused on women. Little did I know at the time that it would change my life.
Over the course of a year, I traveled to and from Bedford Hills Correctional Facility, oddly located in one of the most bucolic and affluent towns in New York, not far from Martha Stewart's 153-acre farmhouse estate. Each visit drew me closer to the women I interviewed for the project and the deeply personal stories they told me about their lives and their families.
They were nearly all Black women. They spoke about trying to overcome crushing poverty. They spoke about their children and their hopes and dreams for a better future. They spoke about feeling helpless in the face of a system that was merciless. Some swore by their innocence. Others explained there was more to their story than the crime they had committed. They also spoke about not feeling heard or understood by the very lawyers sworn to defend them. This surprised me. They explained their public defenders didn't spend enough time with them, listen carefully, or care much about them. Few could even name their attorney or the specific crime they were convicted of, but each could tell me exactly how many days, months, and years they had left to serve away from their children.
At night, in my tiny East Village apartment, I went over my notes from those visits and thought about each of them. It was on one of those nights that I decided to become a public defender. It was a simple realization. Other more patient souls could devote themselves to civil rights lawsuits, class action litigation, and policy reform. I, for one, could not think of anything but how to keep these women from being sent to these prisons in the first place. I wanted to stand by their side in those courtrooms, defend them, and push back against the system that would take them from their children, families, and communities. Listening to the women at Bedford Hills made me wonder: Who were these public defenders, and why did they fail these women so miserably? To find out, I joined my law school's criminal defense clinic.
On the morning of my very first court appearance, I changed clothes three times before leaving the house, settling on a gray suit, white blouse, and black pumps. Back then, for a woman, looking professional meant wearing the closest thing to a man's suit that you could find. I had a new black briefcase to carry my files, a spare pair of pantyhose, and my wallet with my identification. As I headed down the stairs of the subway station on Fourteenth Street to meet my clinical professor, I was filled with anticipation. I'm not sure what I was expecting, but I'm pretty sure my twentysomething-year-old self imagined she would be walking into movie-like, marble-columned courtrooms, where judges dispensed justice based on law and evidence and lawyers fiercely debated the merits of a case. As I would soon learn, nothing could have been further from the truth.
I will never forget the horror I felt when I set foot in Manhattan criminal court. The so-called war on drugs was in full swing, police departments were expanding, mandatory minimum sentences were all the rage, and the public made it clear that anyone who appeared "soft on crime" would pay the electoral price.
A corrections bus pulled up next to the building. One by one, people chained together stepped down and were led through a small door on the side of the courthouse, where they disappeared from sight.
Inside, the hallways were packed with families and children, most of them Black and Latino, waiting anxiously for the courtroom doors to swing open. Once they opened, a frenetic energy filled the air as family members poured into the dark courtrooms, each with enormous, filthy windows, flickering fluorescent lights overhead, and those famous New York City pigeons, which had somehow found their way onto the rafters. As court officers called out names, people in handcuffs walked into the courtroom, flanked by armed guards. Family members would strain to see their loved one. They would sneak a wave and share a smile. And there were tears, so many tears.
There were no brilliant legal arguments that day, no beautiful marble columns, and definitely no passionate lawyers debating the rights of their clients-or debating at all. Mostly, the judge discussed convenient court dates for the lawyers, barely noticing that there was a human being in handcuffs standing in front of them. It didn't take me long to realize that this was what passed for justice in America. We take the poorest and most vulnerable people in our society and put them in cages, expecting that somehow this is going to solve the larger issues that drive people into the system in the first place.
In America, we want to believe that our system is fair and balanced, but in practice our system is less a pursuit of justice and more an exercise in power and dealmaking where resources make all the difference. The burden of proof might be on the prosecution to prove guilt beyond reasonable doubt, but if you are poor, the odds are against you, starting with your inability to afford cash bail or get effective representation from an overworked and underresourced public defender. There is no fair fight-it's a slaughter.
Witnessing this slaughter changed something in me. I couldn't just stand by. I realized that if I wanted to change things, I had to begin in the here and now with the things I could control. In my case, that meant approaching the representation I provided each and every client not just as a job but, on a more personal and human level, as the most important thing I could be doing at the moment.
One by one, those moments with my clients transformed my life in more ways than I could imagine. There is a unique intimacy between lawyer and client when public defenders live up to the responsibility of protecting another person's rights and dignity, if only by virtue of their inherent and inalienable humanity. Public defenders meet people at some of the lowest points in their lives, moments that strip them down to their basic human condition and when the stakes could not be higher. Before you there is a person whose entire life, worth, and character are being judged by prosecutors, judges, and society through the myopic lens of a single act. As a public defender you must push past that paradigm and replace judgment with curiosity.
It's not easy. In fact, we are naturally predisposed to judge-it has been the key to our survival. But judgment can also obscure.
Most people can imagine why a lawyer would defend someone who is innocent of an alleged crime, no matter how serious the accusation. But trying to explain why I would defend someone who I know is actually guilty, particularly of a violent crime, is usually met with scathing judgment, not just of the person I represent but of my own character.
"How can you do that?" "Don't you feel guilty?" "Isn't it immoral?" While I understand why those questions are posed, I never struggled with a moral quandary in this regard. That's not to say that I couldn't recognize when my clients' actions had caused real harm, trauma, or even death. Instead, what I reject is the idea that a person can ever be less than human-no matter what they've done. Even a person guilty of a crime should be treated with dignity.
Translating this insight into practice requires curiosity-a genuine curiosity about how a person arrived at the present moment and the forces and events that shaped their circumstances. We come into this world with wide-eyed curiosity about everyone and everything that we encounter. But by the time we reach adulthood, much of that spark has dimmed. To be a great public defender you must awaken your curiosity so that your mind is open to seeing the person standing next to you, in their entirety, as you fight for them. There is always a context, a history, an iceberg of experiences beneath what we see of another person. For me, every client was a marvelous puzzle, and the case file was only a piece of it.
In my life as a public defender, curiosity taught me that no one is wholly bad, or even wholly good. People can do bad things, of course, but that is the starting point of getting to know your client, not the endgame. My decades as a public defender confirmed the old adage that hurt people hurt people, calling into question the wisdom of a system that practices justice in the form of retribution. Scarlett Lewis, an author and advocate whose six-year-old son was killed during the tragedy at Sandy Hook Elementary School, summed it up this way: there are only two kinds of people in the world-good people and good people who are in pain.
We must seek to imagine what it would be like to be in the other person's place and the journey that could have brought them there. Just for a moment, think about the worst thing you've ever done. Whatever you're most ashamed of. Keep it to yourself. Now ask yourself: Should your entire life and character be defined by it? If your answer is no, congratulations, you have passed the first test of becoming a public defender. You want others to see you as fully human, so you must learn to see others in that way. This is important not only because you yourself would not want to be defined by your own worst act but also because tapping into this capacity of our imagination for compassion enhances our sense of connection to others. We see how we are all the products of a context and so much more than the sum of our mistakes.
Everyone locked in a cage experiences some combination of fear, depression, anger, and anxiety. In that position, it takes courage to trust a stranger and share some of the most personal details about your life with them in the holding cell of a courthouse or a jail. But that's what people who are assigned counsel are forced to do-to place a tremendous amount of hope and trust in a complete stranger. In those moments of trust, I couldn't help but become devoted to the person in front of me. For when you open yourself up to the pain and suffering of another-when you step into his or her world even for a moment-you can't help but want to do something. It is not guilt, politics, or even alliance because of a common identity but a deep and unavoidable sense of shared humanity that compels action. It is the courage of compassion.
Copyright © 2023 by Robin Steinberg. All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.