The American carceral state has grown exponentially over the last six decades, earning the United States a place of notoriety among the world’s leaders in incarceration. That unprecedented growth has been fueled by a cultural addiction to carceral logic and its tools—police, prosecution, jails, prisons, and punishment—as a one-size-fits- all response to the myriad vectors of socioeconomic disadvantage that drive people into the jaws of the criminal legal system. The system operates in the shadow of endemic racial inequality, feeding on the conflated amalgam of race, criminality, and dangerousness. For those who experience the worst of what the system has to offer, it is little more than a purveyor of harm and injustice, deepening the inequality that characterizes America.
The modern public defender was born before the rise of mass incarceration and criminalization and has evolved ever since, from helpmate to the criminal system to a zealous advocate for the accused. The last major evolutionary turn transformed public defenders into a bulwark against America’s penal impulses, defending people against the state while working holistically to address the range of legal and social needs that drive criminal legal system involvement. Recent years have witnessed a growing willingness to grapple with abolition as a strategy and vision, and with it an increasing recognition that being a bulwark—while an essential feature of public defense—is simply not enough to upend the status quo. In this Article, I contend that public defense can and should embrace an abolitionist ethic. I do so because I believe that an abolitionist ethic orients the work of public defenders more pointedly at the interlocking structural causes that lead people into the clutches of the criminal system, and it directs sustained energy at its oppressive nature, ultimately benefitting the people and the communities that public defenders serve.
What does an abolitionist ethic mean for a public defender? Fundamentally, it is a merger of retail-scale zealous criminal defense with wholesale structural change aimed at dismantling the criminal system. Beyond that, it means building a world in which police, jails, and prisons are obsolete. And it employs frameworks and advocacy tools that are accessible to public defense. A public defender’s abolitionist ethic combines a racial justice lens informed by Critical Race Theory to understand the forces that animate the criminal system; zealous holistic defense of individuals infused with the spirit of resistance lawyering; movement lawyering to support social justice advocacy aimed at reducing the size, scope, and scale of the system on the way to dismantling it; and organized efforts to render the carceral state dispensable.
Shifting the paradigm of public defense and the work of public defenders is no easy task. Indeed, it is laden with challenges. Inadequate funding, the skepticism that travels with abolition, the sheer difficulty of criminal defense work, and the seemingly intractable nature of the criminal system can make the turn to an abolitionist ethic seem like a fruitless pursuit. For the public defender, those challenges cannot be the end of the story. The lessons that flow from the centuries-long struggle for racial justice, where abolition was born, teach us that—as organizer and activist Mariame Kaba says—“hope is a discipline.” By nature, public defense work rests on that discipline. Defenders fight against long odds in an unforgiving system. They do so for a host of reasons, among them the hope that what they do will make a difference in the broader fight for the dignity and humanity of those they represent. Defenders must draw on that same sensibility in pursuit of the world that those whom they defend—and all of us—deserve.
