REMAKING PUBLIC DEFENSE IN AN ABOLITIONIST FRAMEWORK: NON-REFORMIST REFORM AND THE GIDEON PROBLEM.

• Author: Salomon-Abrams, Eli

"[E]very thirty years or so, as this country's distinctively intransigent intersection of race, crime, and poverty sparks another round of politicized and international uproar, the right to counsel lurches in a new direction." (1)

"The idea that legal representation--even free legal representation--will help to reduce this country's overreliance on criminalization and incarceration is simply a myth." (2)

Introduction 436 I. The Carceral State and the Struggle to Unmake It 439 A. Carceral Abolition 440 B. Development of the Carceral State 442 C. Gideon and the Rise of Public Defense 445 D. Public Opinion on Public Defenders 449 E. Ideological Underpinnings Weaken 450 II. The Gideon Problem and Three Visions for the Future of Public Defense 453 A. Public Defense Reform: Expanding Gideon 455 B. Teaching Abolition to Public Defenders 457 INTRODUCTION

It is not uncommon to hear public defenders say that they hope for a day when their job is unnecessary. Many envision a world in which their clients are not disenfranchised, marginalized, and incarcerated. Aligning the daily work of public defenders with this aspirational vision presents a serious challenge that requires careful thought, collaboration, and conversation among public defenders, the communities they serve, and scholars. This Note contributes to that active dialogue by exploring different proposals for public defense reform, identifying tensions between them, and contemplating how they might be synthesized.

Carceral abolition is the movement to do away with prisons and the ideologies that demand them. (3) It envisions replacing them with non-carceral forms of accountability and a redistribution of resources to communities most affected by mass incarceration. (4) Recently, this concept has penetrated the often-impermeable barrier of mainstream discourse on criminal legal policy. (5) Increased public support for mainstream criminal legal reforms suggests a weakening of the ideological foundation of the carceral state. (6) The sentiments underlying newly widespread pro-reform attitudes may be limited to reforms that address the carceral system's most obvious harms, but they also reflect a potential split between the physical and ideological platforms of the carceral state. (7) As that gap begins to widen, abolitionists continue to call for the dismantling of our punitive system while pursuing "non-reformist reforms," or policies that diminish the carceral state without legitimizing it. (8)

Public defense reform may be an effective way to seize on increasing public support for criminal legal reform while simultaneously serving as a transitional change en route to carceral abolition; however, there is legitimate skepticism regarding the capacity for public defense to change how the system operates as a whole. The impact of Gideon v. Wainwright, the case guaranteeing the right to counsel in criminal prosecutions where a custodial sentence may be imposed, has been hard to define. (9) Some see the public defense system as a critical, if under-resourced, internal resistance to the carceral state; while others see it as an inherently flawed and underwhelming part of the criminal legal system that cannot truly counteract the racist and classist purpose of that system. (10) Scholars and practitioners alike continue to debate whether the patchwork public defense network carries unrealized potential or primarily serves to help legitimize the criminal legal system. (11) That's the Gideon problem.

Raj Jayadev, the creator of participatory defense, argues that public defenders, working with community advocates, can help undo mass incarceration by changing the nature of criminal legal proceedings, shining light on the inhumanity of the system, and pushing for meaningful policy change. (12) Professor Smith Futrell argues that education in abolitionist thought and practice, while inherently in tension with the work of the public defender, can enhance the quality of legal advocacy and mitigate some of its more harmful and legitimizing effects, while helping new defense practitioners better understand how to position themselves in a larger struggle for justice. (13) This Note argues that a synthesis of Raj Jayadev's and Smith Futrell's proposals, along with the establishment of national standards for public defenders consonant with abolitionist values, may be a non-reformist and transitional abolitionist reform, capable of attracting popular support, if properly resourced and carefully designed around abolitionist principles.

Part I will describe the central tenets of carceral abolition, the development of the carceral state's jails and prisons, and the punitive ideologies which demand and sustain them. Part I will also provide an overview of Gideon and its subsequent expansion. Part II will outline three views of defense reform, including the expansion of traditional public defense systems, how abolitionist education can improve public defense, and participatory defense. Part III will argue that if public defense reform is to be part of the abolitionist movement, it must be reoriented around abolitionist principles and new community partnerships. Part III further argues that simply funding public defense in its traditional form may hamper efforts to dramatically reduce and eventually abolish the carceral state; however, a revamped and better-resourced public defender network may be an attainable and valuable non-reformist reform in the struggle for abolition. (14)

1. THE CARCERAL STATE AND THE STRUGGLE TO UNMAKE IT

   While the carceral state refers primarily to the network of jails, prisons, and immigration detention centers that currently cage more than 2.2 million people, as well as the probation and supervision systems that oversee 4.5 million others, it also reflects and relies on the underlying justifications and rationales for incarcerating and monitoring masses of people. (15) The carceral state is both a policy project, promoted by political leaders across the ideological spectrum, and a force that defines the public's idea of what justice is and how it should be accomplished. (16) For decades, public support for expanding the criminal legal system has increased, partially in response to relentless political messaging about crime rates and drug usage, as well as other similar attempts to enshrine racist and classist ideas as criminal legal policy on both state and federal levels. (17)

   1. Carceral Abolition

      Carceral abolitionists call for a radical reimagining of what it means to create public safety, accountability, and justice. (18) In contrast to reformists, who critique the system and advocate for a combination of short- and long-term plans to improve the fairness of the system without holistically restructuring it, abolitionists do not see a path to justice involving the criminal legal system in its current or former iterations. (19) While there is no centralized platform for abolition, abolitionists generally subscribe to the view that the most critical step towards justice that can currently be taken is to dismantle our prisons and jails and reallocate the massive resources needed to sustain them to historically marginalized communities. (20) Abolitionists argue that the current system was designed as a tool of racialized social and class control and to keep power out of historically marginalized communities; thus, a key component of abolition is exposing the reality of the current system, which, by design, operates hidden from the public eye with the intent of obscuring its form and purpose from the general public. (21) The carceral state functions by convincing the public of the need for harsh punishment while carrying that punishment out in a way that allows those not impacted by the system to avoid reckoning with its profound inhumanity.

      Abolitionists envision a world where communities, particularly BIPOC and poor communities, are safer because of the absence, rather than presence, of police and prisons. (22) Abolitionists believe that the resources expended to develop the primary mechanisms purported to create public safety--namely police, jails, and prisons--would be better applied in uplifting communities that have been denied opportunity, equity, and social and political power. (23) This vision is in part rooted in an understanding that the circumstances that lead individuals to commit crimes--particularly poverty, addiction, and political disenfranchisement and marginalization--are more invidious than those individuals ever could be. (24) Abolitionists believe in humanity, accountability, and redemption over punishment. Abolitionists also understand that social harms, codified as crimes, are inevitable in society and have advocated for a variety of different mechanisms of accountability including restorative justice processes designed and led by communities rather than governments. (25) With respect to victims and survivors of crimes, abolitionists assert that the current system fails to offer justice and that restorative justice and other methods can better serve those who have been harmed. Nonetheless, more work (22.) See McLeod, supra note 18, at 1615. BIPOC stands for "[B]lack, Indigenous and people of color." See, e.g., Sandra E. Garcia, Where Did BIPOC Come From?, N.Y. TIMES (June 17, 2020), [https://perma.cc/4L63-E6VL] (defining the term BIPOC as "[B]lack, Indigenous and people of color"). But see Meera E. Deo, Why BIPOC Fails, 107 VA. L. REV. ONLINE 115, 118 (2021) ("While language is key to anti-subordination, BIPOC damages those efforts rather than being helpful, especially among those searching for new language addressing contemporary issues or race and racism.").

      (23.) See, e.g., McLeod, supra note 18, at 1615.

      (24.) These factors are emphasized here to reflect common traits among people who end up being arrested, charged, and prosecuted. See ALEXANDER, supra note 17, at 224-25. As discussed in the next Section, racialized mass...