“Public Defenders and Collective Action”

The title of this post is the title of this new paper available via SSRN and authored by Nirej Sekhon. Here is its abstract:

It is clear that American carceral policy is excessively harsh, but it is unclear how to bring about the dramatic transformations required to fix it.  Prosecutors, police, and other carceral interests have outsized influence on law and policy.  Collective action problems prevent the group with the greatest interest in systemic reform — those directly targeted by carceral interests — from seriously challenging those interests.  Neither incrementalist reformers nor abolitionists have offered plausible solutions for this structural impediment to systemic reform.

This Article contends that the solution lies with public defenders.  They are uniquely situated to advance systemic reform in the legal, policy, and political arenas.  More than any other existing institution with potential influence in those arenas, public defenders’ interests align with those directly impacted by carceral policy.  Public defenders have been overlooked as systemic reformers because they are traditionally seen as serving an individual defendant’s parochial interest in avoiding conviction.  Sixth Amendment jurisprudence has idealized and entrenched this narrow framing of the defenders’ role.  This framing misconceives both the nature of the State’s carceral power and public defenders’ potentially critical role in constraining it.  Scholars, policymakers, and activists should reject the narrow framing and make defender empowerment the centerpiece of their reformist agendas.