Heeding Gideon’s Call in the Twenty-First Century: Holistic Defense and the New Public Defense Paradigm

By Robin G. Steinberg, 70 Wash. & Lee L. Rev. 961, Washington and Lee Law Review (Spring 2013)

In September of 1997, eight public defenders squeezed into a small storefront office between a Radio Shack and a Rent-A-Center across the street from the courthouse in the South Bronx to practice a new kind of public defense. We had defended people in criminal justice systems across the country, but had come together to create something different – a defender office that would put clients’ lives, not just their cases, first.

Until the moment The Bronx Defenders opened its doors, The Legal Aid Society in New York City had been the sole provider of indigent defense services in the borough. Legal Aid had deep roots and loyal followers, and like most of the other institutional players in the Bronx criminal justice system, it had no interest in making room for a new organization with a new way of practicing. The hostility in the courthouse was palpable. Judges questioned our competence in front of our clients, court personnel threw our case files on the floor when we weren’t looking, and the private bar snarkily dismissed us as “The Bronx Pretenders.” We had a lot to learn and no one was going to help teach us.

Despite the obstructionism and the deluge of cases that come with being an institutional defender, the office rapidly established itself as tough, uncompromising, and innovative. From challenging the way grand jury practice had been conducted for decades, to filing novel motions, we refused to accept the legal status quo in the Bronx Criminal Courthouse. And while we waged a war in the courthouse to reform Bronx practice, we were doing something far more radical. We were listening. We listened to neighbors in bodega lines, housing projects, and community centers. We listened to members of tenant associations, school boards, and churches. But most of all, we listened to clients because in order to defend our clients powerfully and effectively, we needed to hear their stories, understand their needs, and give voice to their concerns.

Here is what we discovered: Clients often cared more about the life outcomes and civil legal consequences of a criminal case than about the case itself. Liberty interests were not always paramount. The lawyers and social workers were overwhelmed with stories about housing, immigration, public benefits, jobs, and child custody from clients charged with even petty misdemeanors like smoking marijuana in public or jumping a turnstile. As it turned out, the problem was rarely the criminal case itself, but rather the very real threat of losing public housing, getting deported, having their public benefits cut off, or having their children
placed in foster care. Fifty years after Gideon v. Wainwright, what The Bronx Defenders realized was that its clients were facing a whole new host of problems that demanded an entirely new model of public defense. That model is “holistic defense.”