One of the things I've worked on is changing the culture of our office to say, 'If public defenders won't stand up for what our clients need and deserve, nobody else will.'
Dawn Deaner has been a public defender for more than 20 years and for the past decade has led the Nashville Defenders office in Tennessee. That's an elected position and Deaner is not renewing her term when it ends this summer.
Deaner believes fervently in the mission of public defending, but, as she explains on our 'New Thinking' podcast, she also sees a profession in crisis: too often public defenders aren't trusted by the people and communities they serve, and she thinks part of the blame for that lies with public defenders themselves.
Public defending, Deaner contends, has been "set up to fail," and defenders haven't done enough to sound the alarm about underfunding and excessive workloads that undercut the promise of equal justice. So Deaner's office has launched "Defend Nashville." Part listening tour and part public education campaign, the project seeks to engage all of Nashville in the issues faced by public defenders and their clients.
The following is a transcript of the podcast:
MATT WATKINS: Welcome to New Thinking from the Center for Court Innovation, the podcast where we talk to people taking innovative approaches to problems in the criminal justice system. I'm Matt Watkins. Dawn Deaner has been a public defender for more than 20 years and for the past decade has led the Nashville Defenders office in Tennessee. That's an elected position and Deaner has announced she won't be seeking to renew her term when it ends this summer. Deaner believes fervently in the mission of public defending, but also sees a profession in crisis: too often, she says, public defenders aren't trusted by the people they serve, and she thinks part of the blame for that lies with public defenders themselves. So Deaner’s office has launched "Defend Nashville." One part listening tour and one part public education campaign, the project tries to engage the wider community in the issues faced by public defenders and their clients. Here's a taste of that outreach effort, the opening sounds of a video introducing the campaign:
SOUND UP: excerpt from "Defend Nashville" video
Dawn Deaner spoke about her office’s efforts at the recent conference on community justice we hosted in Birmingham, Alabama and I've reached her today in Nashville to talk about the role of public engagement in what she sees as a struggle for equal justice.
So to start with this public engagement question, I suppose, why is there a role for the wider public at all in the work of a public defender? What is it that's not being understood, and who isn't understanding it?
DAWN DEANER: As we headed out on our public education campaign with Defend Nashville, we found lots of people who didn't know what the public defender's office did, who didn't understand how the criminal justice system worked, didn't understand how bail worked, and really had no sense of what some of the challenges were and some of the injustices were that are really happening in our courtrooms, both here and across the country every day.
For some reason today very few people really truly understand what it is or how it is our criminal justice system operates.
WATKINS: Why do you think that matters for a public defender? What changes when the community is more engaged? And I suppose not just people needing your services but critically people who will never probably need the services of a public defender.
DEANER: I think people need to understand what's happening in their government and they need to understand what's happening in their streets. For individuals who have little interaction with the police department and then subsequently with the criminal court system, they just have no frame of reference for what's happening there. And so when they hear stories of people being disaffected with the criminal justice system, feeling that the criminal justice system is actually a criminal injustice system, it's hard for them to even have a frame of reference if their only encounters with the police and the courts have been fairly innocuous or nonexistent. And so educating people about how somebody experiences the criminal justice system hopefully helps them, number one, to have more empathy and more understanding for what they're seeing on the news every night when they hear about somebody being arrested. But it also helps them to critically evaluate how their tax dollars are being spent, and it also allows them to think about the state of justice in our communities.
I think, at least from my perspective, having been a public defender now since the mid '90s, we're operating in a different social justice arena today than we were 25 years ago. Twenty-five years ago, tough on crime policies were the norm. They were what was politically popular, and today we are in a much different place where there's a lot of discussion and literature and writing and evaluation of what has become our system of mass incarceration and the injustice associated with that.
WATKINS: Yet for all this attention that's being paid to these issues now, you still feel as though too often the clients of public defenders don't actually trust their own lawyers. Could you talk a bit about that?
DEANER: Anybody who's been a public defender has heard, and heard pretty early on in their career, clients refer to them as public pretenders or clients really express to them that they wanted a quote-unquote "real lawyer" or somebody who was working for them. Right? "I want somebody who's going to work for me."
And as a young public defender, I really struggled with that and had a hard time understanding that and came to believe that my clients just didn't get it, that they didn't know that I went to good schools and that I could have gotten a different job and that I chose this profession because I was committed to it. It took me a long, long time to really come to understand that it was me who wasn't getting it. And what I didn't get and what I think I understand better today, but I'm still growing and learning, is that many of our clients come from communities who shouldn't trust the government and who have never trusted the government because the government has never done anything good for them. And we're part of the government. We are government-paid attorneys.
And so I think this is particularly true when we talk about people of color in this country and African Americans in this country. Criminal court systems were never set up to benefit individuals who were black and living in America. In fact, the opposite is the case. Often times those systems were set up and operated to harm those individuals.
I think also that public defender offices and public defenders were never really intended to succeed. They were an unfunded federal mandate imposed upon state governments by the United States Supreme Court in the '60s when they issued their opinion in Gideon versus Wainwright, saying state governments must provide a free lawyer to somebody who is charged with a felony and is facing going to jail or prison if that person can't afford a lawyer. Well, that's not really a popular idea today, and it surely was not a popular idea in 1963, particularly for the idea of tax payers having to foot the bill for those lawyers.
And so since 1963, state governments have been challenged and faced with this, how do we fund this federal mandate which the federal government has never contributed funding for, and they don't want to spend a lot of money on it. And so they have done as little as they possibly can to provide this constitutionally required service. And that has, in many situations, resulted in very poor quality of service. Not because necessarily the lawyers who are doing the work don't care but because they're just under-resourced and have never been able to get the kinds of resources they need to do the same level of work and defense representation as somebody who is hired, who somebody can pay to represent them.
WATKINS: And so do you feel that public defenders have raised enough of a ruckus about this? This lack of resources, this set-up-to-fail problem? And if they haven't, then it starts to sound like for the marginalized communities that your office works with, that they have reason to distrust the public defender system.
DEANER: Yeah. I think it's a really good question, and I think every public defender office really needs to evaluate their history and their conduct in the system in which they work to figure out where they lie on that spectrum. I can't speak for all public defender offices, but I can say that I think that that is a common issue amongst public defense organizations. It is perhaps not standing up enough for what our clients needed and deserved in more radical ways perhaps, if that's the word we want to use, than we have.
Certainly public defenders for decades now have told their funders, "We don't have enough money" or "We don't have enough resources." And every time I talk to somebody about public defenders, the mantra that I hear back from them is "We all know public defenders are overworked and underpaid."
But the question then becomes, well, have we acquiesced in that, and do we have some complicity in the system 50 years later being what it is, often times just an assembly line of public defenders processing clients through the system. Certainly, our clients feel that processing; they have sort of resoundingly, if we are having real honest conversations with clients and former clients; that is the prevailing sentiment, that public defenders' offices are part of the system that steamrolls over people.
And so I think one of the things that I have seen happening across the country, and I think it's reported on now, is public defenders are starting to push back against that in ways that they really haven't before, at least in a way that got recognition or got noticed. And so you'll see public defenders, I think the stories in New Orleans, Louisiana, and decline in cases and turning away cases and refusing to take on more cases.
WATKINS: That's a decision your office also made, I believe. No?
DEANER: It is. The culture of the public defenders office in Nashville, when I came in 1996, was a well-established culture of we are here to help everybody who needs our help, and that's a really noble cause. It being a noble cause though, doesn't necessarily mean that it produces the kind of outcome that it needs to. I think the fear here that we had in our office was that well, if we don't help folks, who will help them? And the alternative to the public defender's office in Nashville is a system of a private-appointed counsel that themselves are significantly underpaid, and there's no quality control over that. Those lawyers are selected by the judge presiding over the case. There's no minimum standards, and there's no supervision or any sort of oversight in terms of performance.
And so internally within our office, we always felt that an overworked public defender was at least better than a private-appointed lawyer who maybe didn't know what they were doing and was in it just to submit an invoice at the end, and that's true about all private-appointed lawyers, but that's a real cultural issue within the private-appointed counsel system in Tennessee and in Nashville.
And so it came from a good place, but what we failed to sort of really even recognize was that by not standing up and sort of just saying, "We'll do the best we can for everybody who needs us," we were part of entrenching a system that provided our clients with less than what they deserved. And so one of the things that I have worked on doing is changing the culture of our office and changing the culture of the Nashville court system to say, "If public defenders won't stand up for what our clients need and deserve, nobody else will, and so that's what we need to do." We're not doing anybody any favors by taking on too many cases, and in fact we are hurting clients whether we know it or not and whether or not we can point to specific ways in which we're hurting them.
WATKINS: So your office is standing up now. You are speaking up for the clients and the communities that you represent, and you're trying to engage them more, but as you've said, these are communities with well-founded reasons for distrusting the criminal justice system, so it must be something of an uphill battle for you trying to forge these connections. So could you talk a bit about what kind of work you're doing to reach these communities and how it's being received?
DEANER: I think that's exactly right. It is an uphill battle, and it's slow progress. We didn't get here overnight, and so I don't think we can expect that with a workload reduction campaign that we're going to automatically be seen as the solution and the way out. We are still distrusted, and we still struggle. Our caseloads are not where they need to be.
And so we started with Defend Nashville, a campaign we call Defend Nashville, to try to bring public education and make connections in with the communities that are most impacted by the injustices of the court system. So a few of the things we did were to start a court watch program, which we invited individuals who maybe don't have a whole lot of interaction with the criminal justice system to come to our office and let us be their tour guide to what's happening in the courtrooms. The reality is today cell phones have really revolutionized the way the public is seeing and understanding and being exposed to what's happening on the street in terms of policing. Right? The advent of cell phones and social media has made police encounters much more widely circulated, and people can really see that injustice when they see it on camera.
That's not really happening in the court system, and so while police tend to be the entry point into the criminal court system, there's a whole set of things that follow that are injustices. Money bail and the way bail works. Plea bargaining and the way that people are treated in the courtroom.
And so we wanted to be able to show members of the public who didn't know anything about what was happening, like face-to-face what's happening on your doorstep in your courtroom. So we started Court Watch and invited citizens to come and spend the morning with us. We put them in a mock scenario as if they were one of our clients, and it never failed that by the end of the day they came back and as they processed through what they had seen, everybody was shocked by at least one thing that they witnessed in the court system and had no idea that that was happening and felt that what they witnessed was unfair. So that's part of our public education campaign.
The other thing that we did was to invite the founder of a movement called Participatory Defense to come to Nashville and to introduce that idea to, not only our office, but to more of the grassroots community that are impacted by the court system and by criminal justice, and ask them to learn about it and see if it would be something they would be interested in partnering with us about.
So Participatory Defense is really community organizing around the criminal justice system, and it's trying to find a way to empower people who may not have resources to hire a lawyer and typically don't have the resources to hire a lawyer to figure out how they can work in community with each other to get better outcomes in the court system for their loved ones.
It's still small, and it's trying to find its roots and its growth here in Nashville, but there's a small committed group of folks, many of whom are from the impacted community, there are formerly incarcerated individuals, who make themselves available each week to meet with the family members who have a loved one in jail who is facing the court system and to help them figure out how to navigate that in a more powerful way for their loved one. That may mean partnering more with the public defender's office, which was my ultimate goal in bringing them here was to try to forge better relationships between our office and the families of those and communities of the clients that we serve.
And, again, my hope is that the more Participatory Defense grows and the more comfortable they get with making connections in the public defender's office, that they will grow to have some trust and positive experiences with our office that can start to change the perception of the office as a place where you're not going to get quality representation.
WATKINS: So one of the things we've been doing on this podcast of late is an ongoing intermittent series about prosecutor power and the debate and attention that's being paid right now to the power of prosecutors as gatekeepers within the criminal justice system. So I was just wanting to get your perspective after 20 plus years as a public defender on what you make of the current moment in criminal justice reform and what seems like the quite remarkable scrutiny that prosecutors are receiving right now.
DEANER: It's exciting to me. I mean, I think public defenders have long known that the people with, frankly, often the most power in this system is prosecutors. A lot of times people think that it's the judge, but in reality I think it's prosecutors who get to decide what charges will they pursue, what policies will they enact related to bond, related to diversion of cases out of the traditional criminal justice system, related to sentencing practices and what types of enhanced sentences will they receive or will they seek.
Legislators pass the laws, but prosecutors still have the total discretion to enforce it, to do something less than. And so we've long known that, and I think that is one of the biggest frustrations of public defenders is we can fight all day long in a courtroom and list off all of the reasons why our client shouldn't receive the maximum sentence or should receive a reduced charge. But if that prosecutor isn't fundamentally inclined, if their value set doesn't incline them to hear those arguments, we won't get anything done. Because of that, that can tend to look like "the public defender isn't fighting for me," and in fact the reality and the frustration for public defenders is "I fight all day long, and I get nowhere." And that's really demoralizing.
So I'm excited about it. I think that it is energizing that larger community is starting to really truly understand the dynamics of the court system and that prosecutors have that power and are starting to demand public accountability for that. I think that is something that Participatory Defense and its community organizing has enormous opportunity and potential to really impact. It is not necessarily always just focusing on the individual case but community coming together to organize around criminal justice issues where they want to see something different happening from their prosecutor's office than just status quo tough on crime.
WATKINS: I've been speaking with Dawn Deaner. Dawn is the Metro Public Defender and head of Nashville Defenders in Tennessee. You can find out more about Dawn and our community justice conference where she was a panelist by visiting our website, courtinnovation.org/newthinking. Our theme music is by Michael Aaron at quiver NYC. Please if you can rate and review the podcast on iTunes. It helps new listeners discover the show. This has been New Thinking from the Center for Court Innovation. I’m Matt Watkins. Thanks for listening.