Gideon’s Myth

The major reference point for public defense is Gideon v. Wainwright, the Supreme Court case in 1963 that created a constitutional right to defense. Gideon is etched into the culture of public defenders. It is the profession’s foundational myth.

Perhaps you’ve heard the story. Clarence Gideon, a vagrant, begged Florida trial court judge Robert McCrary Jr for the assistance of a lawyer. Judge McCrary told Gideon that he did not have the right to a lawyer. A jury convicted Gideon of breaking and entering with intent to commit petty larceny. Judge McCrary sentenced him to five years in prison — the maximum sentence — all while Gideon stood in the courtroom, alone, with no lawyer to defend him. From his jail cell, Gideon wrote a letter and filed an appeal with the Supreme Court, all by himself.

Abe Fortas, a powerhouse, Yale-educated lawyer, took on the case, bringing it all the way to the Supreme Court. Attorney Fortas, appearing before the Warren Court, persuaded the nine intellectual men to hear him. As a result of his persuasive rhetoric, the Court, in a unanimous decision, agreed, ordering a new trial for Clarence Gideon and that he be appointed a lawyer.

Liberal law schools everywhere champion this story as a testament to the will and fortitude of a man who kept pushing for his rights, and a Supreme Court who, in their wisdom, accepted the idea that everyone has a right to counsel even if they cannot afford a lawyer, and thus made it so across the nation in a unanimous opinion. The moral of the story is that an individual with faith in the system and a talented lawyer with the right ideas can change everything.

The problem with this myth is just that — it is a myth. It is a story drenched in the typical tropes of American mythmaking, particularly heroic individualism. It strips away the collective organizing of many over decades to emphasize the two actors — one man fighting for his rights, and the Supreme Court, an institution that listened to his argument, was persuaded, and did the right thing. This myth was created by, repeated by, and embraced by legal elites, because the story centers elites and elite institutions as the heroes of social change.

But down here in reality, what shapes the world is not the power of elite ideas, but class struggle. The guarantor of our well-being has never been enlightened liberals in elite institutions asserting our rights in the marketplace of ideas. All of our civil rights are the result of down-and-out fights in the streets and the workplace. The right to counsel — like the right to form unions, the minimum wage, and social security — was not bequeathed to us by benevolence but rather were hard-won concessions to regular organized people who wouldn’t take no for an answer.

We can see this pattern in the legal struggle for gay rights. In the 1970s, after all, in front of a more liberal Court than the one that decided Obergefell v. Hodges, virtually the same arguments about marriage equality were put forth, and yet no rights were given. It was only after decades of queer people organizing and dying for their rights to be recognized as equals in society that the results of 2014 came to pass. Without the riots like Stonewall, without the direct actions of ACT UP, without an all-fronts push in popular culture, we would never have achieved that outcome. Public defense required a similar fight.

The Communist Roots of the Right to Counsel

Gideon was actually not the first case in which the Supreme Court recognized that the Sixth Amendment demanded a right to competent counsel. The citation for that proposition was Powell v. Alabama, better known as the Scottsboro Boys trial.

The Scottsboro case was a watershed of the black freedom movement. It concerned allegations of rape made against nine black teenagers in Alabama in 1931. These young men were charged with raping two white women after a scuffle between the black teenagers and a handful of white men, all of whom were riding the rails as itinerants during the Great Depression.

Rather than outright lynch the Scottsboro Boys, the State of Alabama gave them a hasty trial, a concession won by black activists’ anti-lynching organizing and agitation. The trial suffered many defects and lacked fundamental fairness. In addition to the overwhelming racism that pervaded the proceedings, the defendants lacked competent counsel. The court appointed only two woefully unskilled and under-resourced lawyers for all nine boys. The trials of all nine defendants took less than a single day. The boys were sentenced to death.

The first outcry to appeal the Scottsboro Boys’ conviction did not come from elites. The lawyers who took up the Scottsboro Boys’ case were from the International Labor Defense (ILD), the legal wing of the Communist Party in the United States. Scottsboro took place during the high point of communist organizing in the United States. During the Great Depression the Communist Party swelled to hundreds of thousands of members, and they had chapters across the country. The ILD and the Communist Party, realizing that black liberation was integral to a working-class revolution, devoted significant resources to the case, and it was the centerpiece of their strategy in the South.

As we researched more into the Scottsboro case, what struck us was how differently the ILD structured the defense than modern legal organizations. The ILD’s legal strategy in all cases was something they called “mass defense.” Unlike the modern usage of the term, which describes the defense of individuals who are arrested en masse during protests, the ILD used “mass defense” to mean a legal strategy that went beyond the courtroom, to engage the masses in the defense.

As historian Robin D. G. Kelley notes in Hammer and Hoe, there are still young black men who are falsely accused, and there are still heroic efforts to defend them, but there was one fundamental difference in Scottsboro:

[T]he presence of the Left. The Communists and the ILD transformed a local — and, I might add, common — injustice into an international cause célèbre by building a mass movement to free the Scottsboro Nine. Two weeks after the arrest, the Communists got thirteen thousand people to take to the streets of Cleveland to protest the ‘Scottsboro Frame-up.’ The very next day, they led a demonstration in New York City twenty thousand strong. They formed Scottsboro defense committees all over the country, whose members flooded the Alabama governor’s office with telegrams, letters, and postcards demanding freedom for the Scottsboro Boys.

The ILD believed that capitalist courts and the benevolence of elites could not be relied upon to bring justice. In addition to fighting with legal arguments in the courtroom, they organized on the ground. The communists staged mass demonstrations in cities around the country involving tens of thousands of people. A political strategy was necessary for cases that were themselves political struggles; most of the ILD’s clients were labor organizers arrested during their fights against the bosses.

The ILD involved those organizers and their communities in the defense not only through demonstrations but also through mutual aid campaigns, taking care of the families of those who were incarcerated while fighting for their freedom. The ILD had a magazine with a circulation of one hundred thousand per issue, covering legal struggles across the country. They raised funds for defendants and started letter-writing and media campaigns. In Birmingham, the ILD’s membership swelled to three thousand.

At the same time that ILD lawyers were fighting against lynching in the courtroom, Communist Party organizers were in the fields of Alabama organizing sharecroppers’ unions to fight against lynching on a different front. Communist-led sharecroppers’ unions proliferated throughout Alabama. When those sharecroppers took up arms to protect themselves against lynching and strikebreakers, they were arrested, and the ILD took up their cases too, securing release of nearly all of the defendants.

The ILD recognized that fighting for the rights of black people in the South was integral to the strategy of comprehensive social and economic change. Unlike liberal organizations, the ILD did not seek simply to reform the so-called justice system. They did not seek only to defend the innocent or to ensure that people’s constitutional rights were vindicated. They saw legal rights and legal battles as one part of a comprehensive struggle to change all of society.

The attorneys who brought the Scottsboro case did more than just win the legal precedent of the right to counsel. After the collapse of the Communist Party, these same lawyers and organizers participated in and founded civil rights organizations that helped organize the mass movement against racism throughout the 1940s and ’50s.

Rosa Parks, for example, was one of many of this generation whose first political organizing experience was working on the Scottsboro Boys’ mass defense.  Without these organizers and the profound changes wrought by the civil rights movement, Gideon never would have happened.

Public Defenders in the Labor Movement

Although Gideon created a right to public defense, community organizing had won public defense elsewhere long before. All but eight states had passed laws granting counsel in indigent cases. In 1962, the year prior to Clarence Gideon’s petition, another Florida man filed a petition with the Supreme Court after being convicted by a jury with the same request — a request for a new trial because he was not provided with a lawyer.

With an opportunity to grant the right to counsel nationwide, the Supreme Court punted.  In many ways, the Supreme Court was not the start of public defense, but rather, the last obstacle to be overcome to make national a right that had already been won in most places at the state level.

Seventy years before Gideon, the Legal Aid Society was started in New York City as a mutual aid project by German immigrants, by and for their own community. This organization was so successful, and so unlike anything else the state had to offer, that the Legal Aid Society began to contract with the City of New York to provide indigent defense services. But public defenders did not gain serious political power in New York City until the lawyers of the Legal Aid Society unionized in 1969, in the immediate aftermath of Gideon.

Michael Letwin, socialist organizer and former president of the Association of Legal Aid Attorneys (ALAA), described the pre-unionized conditions of the Legal Aid Society.

The wave of new attorneys hired by Legal Aid in the years immediately following Gideon was shocked by the poor quality of representation they found. In 1967, recalls one of these lawyers, Jerry Lefcourt, Society policy required a plea bargain whenever a client had admitted guilt to their lawyer: Once that defendant “admitted” at arraignment, he was going to get pled. You were instructed when you did calendars . . . to frighten the defendants. . . . The deal was worked out [with the assistant district attorney] and the defendant was pled almost instantaneously. Right then, without any discussion between the attorney and client. When I was doing that I could not sleep at nights.

Gideon created a right to representation only on paper. It would take militant, organized action by rank-and-file public defenders to make Gideon’s promise a reality.

Much like the teachers of the Chicago strike in 2012, the Legal Aid attorneys did not organize solely on the basis of wages or benefits, but also around the interests of their clients. The first issue the ALAA organized around was “vertical representation.”

In the old days, criminal defendants were represented in a “horizontal” system, in which different attorneys represented defendants at different points in the proceedings, as if the client were a commodity being worked on an assembly line. This approach ensured that defendants could never develop a relationship with their attorney or be represented by somebody who understood all of the complications of their case.

After striking and winning vertical representation, in which a single lawyer represented a client for the entirety of the case, the ALAA went on to strike and win better pay, affirmative action for new hires, and structures for police accountability. Crucially, the union was also the only tool lawyers had to stand up against the judiciary, who would punish attorneys with contempt if they were too “aggressive” in securing their client’s release.

The Neoliberalization of Public Defense

The ALAA’s power ended with the establishment of a new generation of non-union defenders’ offices in New York City. The Bronx Defenders was founded in the 1990s as part of Rudy Giuliani’s attempts to break the ALAA and the public sector unions more generally, after a series of strikes by defenders. As Letwin explained,

He started by breaking up their funding into contracts for concrete deliverable items which the ALAA had to negotiate for. He then allowed new organizations outside of the union to bid to provide these services. The Bronx Defenders was one of these offices, founded as an organization of permanent strikebreakers to ensure, in Giuliani’s words, NYC would “no longer be at the mercy of one group that could decide in the future to go out on strike.”

The Bronx Defenders undercut the ALAA’s bargaining power, and in return received abundant funding from both the city and private sources. As a result, the Bronx Defenders was able to provide an excellent quality of representations and a holistic model that ensured clients’ access to not only criminal defense but also immigration, family law, and housing legal services.

This is the complex legacy of liberal NGOs in social movements — the achievement of important wins for thousands of defendants in the courtroom, while undercutting the potential for systemic change on the collective level.

In fifteen years, the Bronx Defenders went from representing 10 percent of the cases in the Bronx to 50 percent, shrinking the ALAA’s share. This dynamic ensured that Legal Aid on the systemic level was unable to flex its labor power to fight against the rising tide of police oppression in New York City.

So in 2018, when the Bronx Defenders and other non-unionized public defenders’ offices demanded a slate of bold reforms in the wake of a slew of Democratic wins in New York State Senate, the question remained: “What power do we have to back up that demand?” Beyond media agitation and lobbying, there was nothing. All that was solid in militant public defense has melted into public relations.

This is the fundamental problem with the liberal mythology inherited through Gideon. If one believes that public defense came about through a relationship with elite institutions, then defenders interested in change should cultivate relationships with elite institutions, however limited that route proves to be. The Bronx Defenders relies upon the benevolence of big law firms and grant institutions for donations to fund its work.

At the same time, in my experience working at Bronx Defenders, we and other non-union defenders’ organizations are pitted against Legal Aid in contract negotiations with the city. This weakened our leverage to demand funding from the city, making us dependent on the goodwill of the mayor’s office. This dependence fundamentally and structurally limits the positions the office can take, and the horizons for radical change to which we can aspire.

The Return of Militant Public Defenders

The organizing boom following Trump’s election has reinvigorated labor militancy in public defenders’ offices. Starting in 2017, New York City public defenders began taking direct action to challenge the deportation of their clients in a series of wildcat strikes whenever ICE agents would abduct our clients in court. Non-union lawyers from the Bronx Defenders and Brooklyn Defender Services walked off the job and formed picket lines with ALAA lawyers outside of the courthouse, slowing the Court’s operations in order to pressure court officials to formally ban ICE officers from New York City courthouses. In 2018, Massachusetts public defenders continued a years-long fight to collectively bargain by waging a pressure campaign on the state legislature and organizing statewide rallies at the front doors of their respective courthouses. And earlier this year, workers at the Neighborhood Defender Services of Harlem voted to unionize and joined the ALAA in an upset election that shocked management and the city.

At the same time, incarcerated people have been organizing to free themselves. In the summer of 2018, a nationally coordinated prison strike erupted across the country, with demands for a fairer parole process, better food, and more humane treatment. That same summer, a coalition in Florida led by the Formerly Incarcerated & Convicted People and Families Movement won a constitutional amendment to restore the voting rights of felons throughout the state. In early 2019, at the Metropolitan Detention Center (MDC) in Brooklyn, activists outside and inside the MDC staged a weeks-long demonstration and occupation of the jail, winning a restoration of heating for detainees who had been living without it during the coldest winter in years.

Abolitionist and reformist electoral work has been an additional avenue for defenders and activists to make change that would have been impossible to achieve within the four walls of a courtroom. In Philadelphia, a coalition of reformers and prison abolitionists successfully elected Larry Krasner, a lifelong criminal defense and civil rights attorney, as district attorney. In Chicago, Assata’s Daughters, an organization led by radical black young women, ousted their district attorney, Anita Alvarez, through the #ByeAnita campaign.

In Houston, lifelong public defender and socialist Franklin Bynum ran for Harris County Criminal Court on a platform of abolishing cash bail after a radical civil rights organization, the Civil Rights Corps, brought a lawsuit against the county for unfair bail practices. Along with a slew of Democrats who swept the Houston judge elections, Bynum has achieved presumptive release for nearly all misdemeanor offenders.

And of course, today Tiffany Cabán, a public defender with ties to Alexandria Ocasio-Cortez, will see the results of her insurgent campaign — backed by a coalition of socialists and prison abolitionists — for Queens DA.

Too often, defenders see their clients as the subjects of the defender’s altruism. What organizing does, particularly around issues of class solidarity, is to change this relationship. Rather than our clients being subjects for whom defenders act altruistically, and in whose name we martyr ourselves, we instead see them as partners in a struggle that is in our mutual material interest to win.

Projects like the Albert Cobarrubias Justice Project, which advances a model of participatory defense where family and community members of people facing criminal charges organize to impact the outcome of criminal cases, push public defenders’ offices to recognize that mutual material interest.

The best approximation of this solidarity that the liberal model could achieve was an appeal to our shared interest in abstract constitutional rights. But the truth is more urgent than that; the ruling class that is putting my client behind bars is also making the working conditions of public defenders increasingly desperate. We defend our clients because an injury to one is an injury to all.

Public defense is a socialist institution. It is a vision of a universal public good that everyone should have an unqualified right to, regardless of income. As socialists and public defenders, we should strive to have those public institutions provide services that are of such high quality as to be the envy of the profession.

But more deeply than that, public defense is a socialist institution because it stands against the racist criminal justice system, which is a product of capitalism. Without an analysis of the class interests that underlie the mass incarceration system, we have no hope of understanding or fighting it. Without a socialist understanding of the power of labor unions and working-class mass movements to self-organize and fight against their oppressors, we have no tools to change the state of affairs.

Public defense was created by and with the labor movement. It is as a part of the labor movement that we must fight to keep the rights that our predecessors fought so hard to win. Without organized workplaces and communities, we will never achieve the vision of a society without mass incarceration.