Group #4 Criminal Law & Procedure
• Care, the Carceral State, and the Public Defender
Eve Hanan, University of Nevada Las Vegas, William S. Boyd School of Law
This article begins from the premise that care is an essential component of justice and then argues that the public defender is the institution most competent to administer care. I first set out a working definition of an ethic of care as it has been articulated by feminist political philosophers as well as in the Scottish Enlightenment’s view of sentiments as a moral force. I then discuss how reform efforts from progressive prosecutors and judges in problem-solving courts seem to trumpet an ethic of care. I argue, however, that the power dynamics and structural relationships in criminal legal systems render the prosecution and judiciary unable to reliably practice an ethic of care. Instead, the institution best suited to the ethic is the office of the public defender. Yet, in the current wave of reforms—with their gloss of non-adversarial caregiving—public defense is rarely mentioned. Finally, I discuss the broad policy implications of acknowledging public defense as the primary institution of care in criminal systems.
• Who Do We Serve, Who Do We Protect?
Madalyn Wasilczuk, University of South Carolina School of Law
Within the criminal legal system, those charged with crimes encounter a variety of punishment bureaucrats—police, prosecutors, defense attorneys, and judges. During racial justice protests, activists have called out police with the phrase “Who Do You Serve, Who Do You Protect?” recognizing the racialized harms police inflict within their role as agents of the State. Yet, the law benefits other members of the punishment bureaucracy in similar ways: prosecutors, defense attorneys, and judges are shielded from the harmful effects their professional acts may cause. Indeed, the law frames presume their decisions are reasonable and strategic and that they cannot be deemed culpable when the substantive outcomes do not reflect that. The deference law gives its own stands in stark contrast to its expectations of those we might think of as the end-users of the system—people facing criminal charges. This essay will explore how raced and classed hierarchies within the criminal system set system actors apart and insulate them from accountability to those whose rights they are bound to respect.