Public Defenders as Gatekeepers of Freedom


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.

About the Author

Assistant Professor of Law, Benjamin N. Cardozo School of Law. I would like to thank Jorge X. Camacho, Thea Johnson, Kathryn Miller, Ngozi Okidegbe, and Andrew Whitcup for feedback and editing on various iterations. I would also like to thank everyone who provided thoughtful feedback—Aziza Ahmed, Alexander Boni-Saenz, Christopher Buccafusco, Bennett Capers, Guy- Uriel Charles, Jessica Eaglin, Jocelyn Getgen Kestenbaum, Betsy Ginsberg, Leah C. Grinvald, Daniel Harawa, Jasmine Harris, Alexis Hoag-Fordjour, Marty LaFalce, Alfredo Mirandé, Lindsay Nash, Jonathan Oberman, Michael Pollack, Alexander Reinert, Ediberto Roman, Maybell Romero, Stewart Sterk, Matthew Wansley, Lisa Washington, Sam Weinstein, Felix Wu, and Ekow Yankah. I would like to thank Isabelle Sehati and Ivan Bohorquez for their excellent research assistance. I would also like to thank LatCrit2021, Richmond Junior Scholars, Latina Scholars Workshop, and faculty workshop at Case Western Law, Boston University School of Law, and University of Iowa Law School.