Abstract
Nearly half a million people are currently held in pretrial detention across the United States. Legal scholarship has explored many of the actors and factors contributing to the deprivation of freedom of those presumed innocent. And while the scholarship in these areas is rich, it has primarily focused on certain system actors—including judges, prosecutors, and profit-seeking sheriffs—structural concerns, such as the role race plays in who is being held in pretrial detention, or critiques of the failed promise of algorithms to deliver on bias-free bail determinations. But relatively little scholarship exists about the contributions of public defenders to this deprivation. This Article discusses those contributions. Specifically, it discusses public defenders who act as gatekeepers of bail litigation by substituting their own beliefs and values for those of the people they represent and who, consequently, decide for their clients whether to challenge pretrial detention. Through an exploration of the silence around bail litigation in relevant case law, statutes, and ethical rules, this Article identifies how the rules governing indigent representation have promoted and accommodated this dynamic between public defenders and persons charged with crimes. It explores the implications of this gatekeeping, including the dangers that arise when predominantly white public defenders make decisions for predominantly Black and Brown indigent people charged with crimes. Finally, it calls for a change in the norms and ethics of criminal defense practice as a first step toward rectifying these problems.
