Criminal defense is not for the feint of heart. We do an ugly job, representing people who are often very guilty of doing very bad things to other people, and still defending them and, if it’s possible within the bounds of the law, beating the case. Sure, there are innocent defendants and overcharged defendants, and there are defendants who’ve been burned by life and ended up committing crimes for lack of any viable alternatives within their sphere of understanding, but there are also defendants who are bad dudes. And then there’s the dirty little secret that most defendants are guilty.
Yet we defend them, and we don’t think too hard about whether we’re the good guys or not. Everyone has a constitutional right to a defense, and it’s our job to fulfill our end of the constitutional duty.
Add to that the burdens of being a public defender, overwhelming caseloads, unappreciative clients, lack of public defense and, in most cases, inadequate compensation, and there’s good reason why so many who go into public defense with grand aspirations become frustrated, angry and burnt out. The mantra was that it was a tough job and the only way to survive was to “tough it out.” But there is now an additional burden, “moral injury.”
That narrative is changing within the public defense community, a group that includes not only attorneys but also social workers, investigators, paralegals, and other staff. Public defenders are grappling, at the individual and systemic levels, with the mental health impacts of their work. Rather than implying weakness, public defenders suggest that recognizing and confronting the mental and emotional toll of their work may actually make them better at what they do.
At the heart of this steady change is the recognition that public defenders face distinct mental health challenges. Given the unique character of their work, typical mental health advice—exercise, go to therapy, talk to a friend—is often woefully insufficient. Structural barriers and under-resourcing take a toll on defenders’ sense of self and justice. They’re also exposed to direct and secondary trauma coupled with a lack of education about traumatic effects. For many reasons, formal mental health care can be inaccessible. And yet, public defenders across the country are making significant efforts to respond to these challenges.
Over the past decade, people have become consumed with their own well-being, the theory being that you can’t care for others until you’ve cared first for yourself. Instead of focusing on saving the client, this empowers people to worry first about their own mental health where they’re the star of their feelings and the client is a supporting character in their universe of feelings.
Public defenders represent clients facing devastating, potentially life-destroying punishments; they witness the effects of criminalizing mental health needs, substance use, and poverty. A 2020 study of public defenders, jointly conducted by faculty of Rutgers University–Newark and Drexel University, concluded that public defenders suffered from the “stress of injustice” or the “demands of working in a punitive system with laws and practices that target and punish those who are the most disadvantaged.”
Andrews believes that her experience, and the experience of other public defenders who leave the work, can be understood using the concept of moral injury.
Essentially, PDs suffer vicarious injury of their defendants, subsuming their clients misery in conjunction with the unfairness of society and their client’s suffering.
The important takeaway from the concept is that traumatic effects can be felt even if one doesn’t experience the trauma firsthand. According to Andrews, secondary traumatic stress appears often in the course of public defense work: “A huge piece of public defense is listening to really painful stories of experiences. Not just the facts of a particular case, which definitely can include someone being very severely harmed … but it’s also the background information when we get to know the people that we represent and their families and communities.”
Public defenders are subject to both the “trauma” of doing a near-impossible job that fails miserably to align with their hopes and purposes in doing the job of defending the indigent, plus the secondary trauma of their clients’ suffering. For many who make the choice of entering this godforsaken niche of criminal defense, empathy is who they are and they can’t compartmentalize their job and slough off the collateral suffering of the people they come to know and defend.
But can they, individual public defenders, and the system of public defense, survive if they can’t overcome this “moral injury” that’s inherent in the job?
One tool to address this problem is therapy, although it has its issues, from cost to availability to efficacy.
Public defenders who do choose to seek professional mental health care often face barriers. There are, of course, the generalized obstacles like cost and provider availability, but there are also specific struggles, like finding a therapist who understands public defense work. Tina Fang, the chief deputy public defender at the Office of the Colorado State Public Defender, cited the loathed question often posed to public defenders: How could you defend that person? “I’ve had therapists ask that question, and nothing will shut down a therapy session faster,” Fang said.
But the purpose that’s gaining traction is that the burden on public defense, beyond the problems with financing it and staffing it, are best “fixed” by addressing the underlying social trauma itself.
What’s more, a frank discussion around the challenges of public defense work might provide another source of fuel for efforts to advocate for change in the criminal legal system. Andrews argues that the concept of moral injury can be an effective tool for turning a critical lens back on the systems in which public defenders work. In that sense, efforts to improve mental health for public defenders and advocacy efforts directed at changing the criminal legal system itself are not separate fights, but in fact inform and feed one another.
Does public defender burn out from the “moral injury” suffered vicariously “inform” reforming the criminal legal system? On the one hand, it may well be that this focus on vicarious suffering of clients’ suggests that people entering public defense may be too empathetic to survive. The job isn’t easy and it never will be. There’s a lot of merit to “toughing it out,” even if it’s fallen out of favor. On the other hand, are reforms directed at making public defenders’ lives less traumatic the proper way to run a criminal legal system? What about crime victims? What about society. There are other issues at work here beyond those that concern PDs.
But on the third hand, the system can’t work without public defenders to fulfill the constitutional mandate that every criminal defendant receive a zealous defense. And if public defense is unsustainable as is, then something has to give.
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