Publication Date

12-2025

Journal

UC Davis Law Review

Abstract

A focus of criminal legal system reform efforts has been the curtailment of police, prosecutorial, and judicial discretion, which has been criticized for its arbitrariness and its contribution to racial, class, and gender disparities. However, one system actor has largely escaped similar scrutiny: public defenders, who, by grant of authority from ethical rules of practice and Supreme Court jurisprudence, have significant decision-making authority in the cases of indigent persons charged with crimes.

This Article will, for the first time, explore the historical rationale for giving public defenders the power to make life-altering decisions for their clients. Specifically, it dissects the work of the American Bar Association Advisory Committee that, in the 1960s, created the original professional guidelines regarding public defender discretion. This dissection reveals that the committee was preoccupied with attorney control and systemic efficiency, resulting in a highly skewed balance of decision-making authority that favors public defenders and disadvantages indigent persons charged with crimes. It further reveals that the committee viewed indigent people as unsophisticated and unintelligent, which further propelled the committee to dismiss the knowledge and judgment of poor and marginalized people. These preoccupations and prejudicial views led to the current broad grant of discretion to public defenders.

The committee failed to explore or even mention the potential harm that public defender decision-making authority can cause their indigent clients. Specifically, these harms compound the restriction of liberty and autonomy that indigent persons already experience within the criminal legal system. This failure makes it impossible to believe the current distribution of decision-making authority is optimal or warranted. Accordingly, I argue that this distribution must be reassessed and recalibrated. This involves revisiting antiquated rationales for distributing decision-making authority between public defenders and indigent persons charged with crimes and properly considering the interests of the latter to inform professional norms regarding indigent defense. Any revisions should also consider the dangers of discretion. This Article argues both that the bulk of the decision-making authority should lie with the person charged with the crime and that the public defender should be decentralized.

Volume

59

Issue

2

First Page

885

Last Page

960

Publisher

UC Davis School of Law

Disciplines

Civil Rights and Discrimination | Courts | Criminal Law | Criminal Procedure | Law | Law and Race | Law and Society | Legal Ethics and Professional Responsibility

Download

Share

COinS