In a campaign speech in July 2019, President Joe Biden recalled that he chose “to leave a prestigious law firm … and become a public defender—because those people who needed the most help couldn’t afford to be defended in those days.”
President Biden’s embrace of his experience as a public defender, and his adoption of a criminal justice platform that has been described as the most progressive in general election history, gives hope to those of us who work seeking change to the criminal justice system. But the urgency to reform the system must not dissipate after President Biden’s inauguration, especially for members of the private bar.
The practice of law is drastically different than it was a half-century ago, when President Biden was forced to choose between his firm job and public service: The term “pro bono publico” did not come into widespread use until the 1970s.
Decades later, large law firms and corporate law departments encourage their lawyers to pursue pro bono work, and credit the hours that their lawyers devote to answering the call. Although there is still room for improvement, we see a notable upward trend.
As the nation enters new leadership, it is critical to remember that the need for pro bono lawyers remains significant. The criminal justice problems that this nation faces did not magically disappear when the Oval Office changed hands.
States Are the Battleground
Given the well-documented and long-standing interplay between racism and other forms of bias in the justice system, we know that the structural dimensions and daily manifestations of racial discrimination call for a generations-long effort.
Moreover, his campaign promises notwithstanding, President Biden is not solely in control of lasting reform because the vast majority of criminal cases are brought at the state level. In 2020, just over 92,000 new cases were initiated in federal courts across the country. This was a high-water mark over the past five years.
By contrast, there were 356,333 arrests in New York alone in 2019. President Biden promised to eliminate private prisons, cash bail, mandatory-minimum sentencing, and the death penalty, among other things. But President Biden only has the power to keep these promises at the federal level.
As these figures indicate, the trenches in the battle for criminal justice reform are not in the federal courts; they are in the states. Therefore, the warriors who fight in these trenches day in and day out are not Department of Justice lawyers. They are public defenders, nonprofit lawyers, and legal service providers, often bolstered in their efforts by committed members of the private bar.
As a public defender in the District of Columbia for 20 years and now, as the director of the Criminal Justice Project at the Lawyers’ Committee for Civil Rights Under Law, I can unequivocally say that the private bar can and does reinforce the front line in the fight for reform. Private practice attorneys must remain engaged in the fight for justice.
As a public defender in the wake of the demonstrations after Donald Trump’s inauguration in 2017, my former office called on dozens of private lawyers to help defend many of the 234 arrested protesters; the vast majority of those cases were successfully defended.
Today, my current office leans on law firms to assist us in our claims against state judges who jail people for failing to pay their fines and fees simply because they are too poor to pay; against police departments violating the Fourth Amendment rights of Black people; and to vindicate the right to counsel for poor people accused of crimes. Our efforts to enforce these basic rights are already Herculean; without the assistance of our private practice partners, they might be impossible.
Support for Fundamental Changes
Most importantly, in the wake of a tumultuous 2020, there is a groundswell of support for fundamental changes in the ways that the criminal justice system treats Black and Brown people. Black people are almost six times as likely to be arrested as Whites, and Latinx people are over three times as likely to be arrested as Whites.
At the center of this disparity is the treatment of Black and Brown people by law enforcement, which nonprofit organizations have recognized for decades.
Sadly, the events of Jan. 6, 2021, reinforced this disparity, as Black Capitol Police officers became the targets of the racist vitriol of insurrectionists who invaded the U.S. Capitol—insurrectionists whose numbers included White supremacists and off-duty police officers. Some in this violent mob were treated with kid gloves by several Capitol Police officers, according to reports.
I am not the first to point out the obvious disparity between the images from January 6 and those from this summer when Black and Brown Americans protested police violence. An investigation into the Capitol Police is underway by the federal government. But that investigation has limited bearing on the realities that caused the 2020 reckoning with police violence.
Racially biased policing at the state and local level remains a pervasive scourge on the cause for equal justice, and the private bar can do a great deal to help advance the call for accountability and change. There is plenty of work to go around, and partnership between law firms and nonprofits like mine isn’t just laudable. It has been—and must continue to be—essential.
This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.
Arthur Ago is the director of the Criminal Justice Project for the Lawyers’ Committee for Civil Rights Under Law. Before holding this position, he worked at the Public Defender Service for the District of Columbia for close to 20 years, where he served as a trial attorney, supervisor, and the trial chief.
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