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Date: Feb. 2022
From: Fordham Urban Law Journal(Vol. 49, Issue 2)
Publisher: Fordham Urban Law Journal
Document Type: Article
Length: 18,254 words
Lexile Measure: 2380L

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"[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


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...

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Gale Document Number: GALE|A696304965