Thursday, March 10, 2016

Public Defenders Matter to American Democracy. A Lot.

Of all the possible criticisms of potential SCOTUS nominees to replace Justice Scalia, I was most surprised and dismayed to read a blog post in the National Review criticizing 8th Circuit Court of Appeals Judge Jane Kelly for having once been a public defender, as though this were inherently a bad thing.

First let me say that I practice civil and not criminal law for one simple reason: I don't relish the idea of putting people in jail and I definitely do not want to defend alleged murderers, child sexual predators, rapists and other unsavory characters you encounter when you're a private defense attorney or a public defender.

But I have nothing but unmitigated respect for criminal defense attorneys--particularly overworked and underpaid public defenders--whose often thankless jobs are what make the American judicial system, at least in theory, a fair one.

As every good prosecutor knows, public defenders are the front-line guardians of the U.S. Constitution's promise of the right to a fair and speedy trial; the prohibition against double jeopardy and self-incrimination; and the rights of the accused to due process, confrontation of witnesses, and assistance of counsel, among other things.

In short, all the things that separate America from countries that simply stone the accused in public. Countries, by the way, that the same Americans who are so quick to criticize public defense work would love to see blown to smithereens for their lack of a fair democracy.

It is highly undemocratic and un-American to suggest that defending the criminally-accused in court is a strike against a lawyer, when in fact it is one of the bravest things a lawyer can do. Public defenders must routinely set aside their own distaste for specific individual clients in service of upholding the American constitutional system as a whole, often in the face of very understandable public criticism and reproach from victims, media, and other lawyers.

It is brave, important work. It is not work I want to do, that's for sure. It is not easy work, and it is often unbearable, which is why so few lawyers remain public defenders for their whole careers. But it is 100% necessary work to the fabric of American democracy. 

Anyone who says otherwise needs a refresher in constitutional law.

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