Criminal injustice

Jonathan Rapping, AB’88, inspires attorneys who represent indigent clients to fight a system stacked against them.

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Jonathan Rapping met the boy in his jail cell. He was 15 years old, awaiting trial on a murder charge that carried a sentence of “juvenile life,” imprisonment until age 21 at Washington, DC’s notorious Oak Hill Youth Center.

In their first meeting, Rapping, AB’88, then a young lawyer with the Public Defender Service for the District of Columbia, encountered shattered fragments of a person. The boy was quiet, “almost comatose” with grief and remorse for what he had done. Playing with a gun, he had fired it accidentally, killing his best friend.

That tragic instant snuffed out one young life and threatened to ensnare another in the flytrap of crime and punishment. Rapping and a colleague, assigned to represent the youth, were his protection against that fate.

Five months into his job, Rapping stood where he’d always wanted to be—between the full weight of the state and the people most likely to suffer its brunt. Rapping’s sense of himself had always revolved around a vision of preventing injustice. 

His activist mother, Elayne Rapping, had taken him to protests—opposing the Vietnam War, supporting women’s rights, among others—since he was small. One of his earliest and most formative memories happened at his mother’s side in a courtroom where she had taken him to support demonstrators who were facing charges.

Rapping tells that story now, in the third person with the emotional register of a closing argument, to a group of Maryland public defenders he’s training through his foundation, Gideon’s Promise. “She taught her son to have a healthy dose of skepticism about authority,” he says, “and that six-year-old boy took his water gun and he put it in his waistband and he went to the courthouse.”


At a June trainer development conference in Decatur, Georgia, Rapping worked with lawyers and clinical professors of law who themselves teach and mentor public defenders. (Photography by Ben Dashwood)

As he speaks, Rapping moves with deliberate intent, assuming a sturdy posture and making eye contact with the colleagues occupying a semicircle of chairs around him. “As they sat in that courthouse and those three friends of the family sat up at the defendants’ table, he noticed that there were police officers surrounding the courtroom.”

The choreography and body language are as much a part of what Rapping wants to convey as the details of the story. He’s communicating emotion, not just information. “And all of a sudden the lights went out. There was scuffling and there was noise and he could feel himself being bumped. And when the lights went back on, he looked over and saw his mother’s sleeve had been pulled out of her shirt.”

All 16 lawyers in the room will have to do this in turn, reach into their pasts and relate a story about how they decided to become public defenders. “At that moment,” Rapping continues, “he knew that whatever he did with his life, he would be on the side of those men who were accused and not the people who would turn out lights and beat citizens for supporting protesters.”

Much of Rapping’s legal training came at the District of Columbia’s Public Defender Service, where he initally worked as a law student at George Washington University. He haunted the office from the summer after his first year until he graduated in 1995 and became one of its staff attorneys. In the dogged and idealistic public defenders he assisted, Rapping saw what he wanted to become.

And that’s exactly what he became, first in the courtroom, and now as a trainer. With Gideon’s Promise, which Rapping founded in 2007 with his wife, teacher Ilham Askia, he seeks nothing less than to transform a judicial culture that often overburdens the lawyers he most admires and belittles their clients. Last year he received a $625,000 MacArthur Foundation Fellowship for his work.

During a dark moment two decades earlier he wondered whether he could continue doing the work at all.

 

The mitigating circumstances in the 15-year-old’s case offered a textbook opportunity for judicial compassion. The killing was an accident. The boy expressed the deepest regret. At his age, years locked away in Oak Hill’s dangerous warrens would threaten his future far beyond any risk he posed to others on the outside.

As the boy opened up to his lawyers, he showed not only remorse and fear but intelligence, compassion, ambition, and gratitude for their help. “He never meant to hurt anyone,” Rapping wrote in a 2012 article, “and would almost certainly have nothing to do with guns again.”

One boy was dead at the hand of another who was clearly suffering. Rapping considered it his responsibility to prevent the criminal justice system from compounding the damage with a disproportionate punishment.

His arguments were unpersuasive in court. A judge found the boy guilty and sentenced him to detention at Oak Hill until he turned 21. After his client was led away, Rapping went back to his office, shut the door, turned off the lights, and sobbed.

“That was the first person I felt personally responsible for who was locked up, and his life would be altered forever,” he says. Rapping figured he was finished as a public defender. The emotional toll was too great, the capacity to help too small. No matter how hard he fought for his clients, he could not protect them from the system.

Rapping’s devastating first defeat as a public defender has become an important chapter in the narrative of his crusading legal career. Over time he came to learn, from his fellow attorneys and from the realities of a tough-on-crime judicial atmosphere, that winning and losing could not be the measure of a public defender’s success. “What’s important is that our clients know they had someone there fighting for them,” Rapping says now. The verdict notwithstanding, his more experienced colleagues insisted, the boy “was really lucky to have lawyers who cared so much.”

Rapping didn’t realize how unusual that was—not having public defenders who care, but having public defenders with the time and ability to express the depth of their concern for their clients. Washington was an exception to the working conditions of many state and local public defender systems, where cases accumulate until the time available for each can be measured in minutes.

A 2013 Mother Jones story reported some numbers: public defenders spend an average of 59 minutes per case in Atlanta. In Detroit, 32 minutes. New Orleans? Seven.

Such conditions thwart lawyers from fulfilling their most basic ethical responsibilities to clients, but many lawyers can’t refuse cases without putting funding for indigent defense, or their own jobs, at risk. Among other structural advantages in Washington, a statute ensures that the Public Defender Service handles no more than 60 percent of the jurisdiction’s eligible cases. The rest are assigned to private defense attorneys.

In a 2011 book, Norman Lefstein, professor of law and dean emeritus at the Indiana University School of Law, Indianapolis, cited Washington as a model, but one that few others follow. The 1963 Supreme Court case Gideon v. Wainwright enshrined the constitutional right to an attorney (to mark the case’s 50th anniversary, Rapping changed his foundation’s name in 2013 from the Southern Public Defender Training Center to Gideon’s Promise). Lefstein details the ways that right has been effectively denied in the majority of US jurisdictions. As former FBI director William S. Sessions puts it in the foreword: “Widespread resistance to the clear mandate of the Constitution … created one of our legal system’s most shameful deficiencies.”

Trying cases in Washington, and later directing the office’s training program, Rapping experienced few of those deficiencies. It wasn’t until 2004, when the State of Georgia recruited him to train its public defenders as part of a reform process, that Rapping discovered how pernicious they could be.

 

In Georgia, Rapping instructed his first training group on the basics of filing suppression motions—excluding evidence from illegal searches or confessions—a routine trial tactic. When he finished, one of the state’s new chief public defenders, put in place to implement change, said he appreciated the presentation, “but we can’t do that where I come from.”

Rapping reassured him that he could, and made a joke about the federal Constitution applying in Georgia, only to discover that, in effect, it didn’t. “No, no, we can’t do that where I come from,” the public defender said, “because when we file motions our judges get mad.”

This, Rapping says, from “one of these leaders who was handed the mantle to reform indigent defense in Georgia.” The scale of the job he had taken on expanded before his eyes. He realized he wouldn’t be just training attorneys. He would be trying to change a culture that treated public defenders as an impediment to the system’s efficiency.

Defendants often find themselves under pressure to enter guilty pleas—accepting a criminal record that could compromise their parental or employment rights forever—for the sake of avoiding a trial. Paying bail might be impossible, and waiting in jail for a trial could have the same consequences for family and work. Entering a plea can offer a faster route out of the system.


(Photography by Ben Dashwood)

Attorneys with minimal time to make a case, however winnable it might seem, face the same perverse incentives. There’s a phrase for the lowest common denominator of legal defense that emerges in those circumstances: “meet ’em and plead ’em.”

Systemic problems like these were so widespread that, to even begin addressing them, he felt an umbrella organization was needed to establish a network of support. With funding from a Soros Justice Fellowship, Rapping formed the Southern Public Defender Training Center.

Today the foundation has partnerships with more than 40 public defender offices in 15 states. Maryland is its first statewide partner, an undertaking that required Rapping to take a leave during this past academic year from teaching at John Marshall Law School in Atlanta, where he’s a professor.

Rapping’s training sessions run the gamut of client representation, courtroom presentation, legal strategy, and ethical responsibility, but they’re rooted in a larger mission. “I think what we really started to focus on was this cultural challenge,” he says, “a culture that didn’t respect poor people and didn’t respect the people who represent them.”

To open the March training session in Towson, Maryland, he asks the assembled public defenders for an airing of grievances. Everybody offers at least one. 

“Caseloads.”

“Resources. Like social workers, investigators, people to help prepare our cases.”

“Judges that act like state’s attorneys.”

“The judges who treat the public defenders different from the private attorneys.” Another lawyer expands the point: “And they treat the indigent clients different than the private attorney clients.”

“When the politics of prosecution bleeds into the courtroom.”

“When judges will harm your client based on zealous advocacy.”

Rapping tells them that their first step in the face of those challenges is to refuse to burn out or succumb to the client-processing assembly line. Drawing on a support network, beginning with the nodding heads around them and spreading as far as Gideon’s Promise can reach, will help them endure the inevitable dark days on the job.

If Rapping still has those days, you’d never know it.

 

Shaved bald with a salt-and-pepper goatee, wearing jeans and an untucked shirt or a hoodie, Rapping looks and talks like a high school football coach. He addresses groups of lawyers with the motivational demeanor of a locker room speech.

As the Maryland public defenders blearily settle into their seats early on a frigid Sunday morning in March, Rapping greets them with rhythmic clapping of the “everybody now” variety. Soon they’re all applauding in unison.

Rapping acknowledges that he’s probably the only one in the room who can think of no place he’d rather be at 8:30 on a Sunday morning. “He does not sleep,” his wife says. “He sleeps five hours a day, maybe. Six is like the best. He’s up at one in the morning and he’s working. A lot of us get emails at 3:30 a.m.”

His enthusiasm is boundless—and infectious. A couple of the Maryland public defenders admit to him that they were skeptical about the training and dreaded sacrificing precious days off, but Rapping convinced them of its value. “He’s a rock star,” says Maryland’s chief public defender, Paul DeWolfe, gesturing toward a clutch of attorneys clustered around Rapping after one of the sessions.

It’s not so much Rapping’s commitment to the ideals of public defense work, or his commiseration with these like-minded lawyers, that attracts them. It’s his commitment to the people they work for: the clients. 

At its core, Gideon’s Promise exists to give public defenders the strength to put their clients first. Rapping’s training techniques revolve around the idea that the lawyers should always be reminding judges and juries that their clients are human beings, not just numbers to be crossed off a docket.

To that end, amid discussions of legal strategy and professional ethics, his sessions include lessons in how to respect the humanity of the accused and convey it to the court. He quotes poet Maya Angelou and death-penalty opponent Sister Helen Prejean.

Each of the trainees tells their own story, as Rapping did, of how they became public defenders. Not the bullet points on their résumés, but the story. The moment that set them on their journey to this professionally frustrating and often personally wrenching job.

For some the story is searing, for others humorous or mundane. Most of the 16 attorneys, convened from offices around the state, don’t know each other well, if at all. They receive only understanding from the group, but this exercise is more than a rhetorical trust fall to build camaraderie. It’s about making an otherwise dispassionate audience—with judges and juries in mind—feel for the subject of the story.

Rapping applauds all the lawyers when they finish, praising their candor. Then he critiques. Maybe the presentation needs work, or the structure. How they present themselves in word and deed—diluting their impact by meandering to the point, weakening their body language by shifting from foot to foot—comes under close scrutiny.

Later Rapping puts them into pairs. He instructs them to interview each other about a major moment in their lives unrelated to their legal careers. Unbeknownst to them when they scatter to talk privately, each will have to relate the other’s story in the form of an argument before a judge at a mock bail hearing.

With less than 30 minutes to interview the other person before alternating roles, the information the lawyers can gather is necessarily limited. This simulates the time constraints public defenders often face before an initial court appearance.

They are the ER doctors of the legal profession, forced to perform triage. “You get a hundred gunshot victims,” Rapping says, “and you’ve basically got a tweezers and some thread, some Band-Aids, and some Bactine.” If they can save a handful of lives under those conditions, it’s a triumph. Teaching them how to improve that success rate with the limitations imposed on them is at the heart of Gideon’s Promise. 

Rapping also wants them to overcome the self-condemnation many feel for not being able to help the vast majority of clients, which even the most diligent public defender often feels powerless to do. “Because that’s what drives you out of the game,” Rapping says, and then none of the clients get help. “So how do you forgive yourself for things beyond your control and continue to do what you can?”

 

When they met, Rapping gave Askia his business card. “Oh god, he’s a public defender,” she remembers thinking. “I’m not going to like this guy.”

In Askia’s experience growing up in Buffalo, New York, public defenders were not advocates in any sense of the term. Her perception of them back then was that “they just want to put poor black people away.”

The bitter memory of what happened to her father forged that impression. One day a police officer recognized his distinctive gait and, recalling a years-old warrant for armed robbery, stopped him on the street. 

After answering a few questions to confirm his identity, Askia says, he was arrested and “given a public defender who didn’t tell my father’s story at all, didn’t represent him well.” That was the story of a man who had grown up with an abusive father, had escaped a checkered past, converted to Islam, married, had three children with another on the way, and who now operated a local fish market. 

Askia was 5, the oldest of the kids, when her father was sent to Attica for 10 years. From her perspective, the family never recovered.

Other male family members have had their own encounters with the justice system, and her younger brother is in prison today. She avoided trouble, graduating from Cornell University, earning her master’s at Trinity Washington University, and becoming a schoolteacher in Washington, DC. But she carried a disdain for the justice system, even those representing the most destitute of the accused.

Rapping changed her mind. As she got to know him and his colleagues in DC’s Public Defender Service, Askia saw a depth of caring that she never imagined. 

They shared outrage at the system’s dehumanizing effects on the poor and people of color, at the pressure to accept bad plea deals, at the disproportionate sentencing, at the separation of families and the loss of jobs over nonviolent offenses. Public defenders, Askia came to understand, were fighting to protect clients from the stigma that her father bore into and out of prison, and that became a perilous inheritance for his family. 

Rapping absorbs the injustice of stories like Askia’s into his bones, fortifying him for the fight. Now that they’re married, the parents of two children, and partners in running Gideon’s Promise, Askia marvels at how little his business card told her about the man. “Jon is the realest person I know,” Askia says. “That’s why I love him, he’s so real and honest—sometimes too real and honest—but he’s doing it for the right reasons.”

Now, as the foundation’s executive director, Askia is a fierce champion of the public defenders she used to distrust. When he received the funding to make Gideon’s Promise possible, Rapping asked Askia to take a year off from teaching to help him start it. “One year,” she says. “I think I just finished year eight.”

 

Alison Siegler, LAB’91, calls Rapping a visionary, but she still thinks of him, first and foremost, as a lawyer. That’s how she got to know him, through shared experience deep in the criminal defense trenches.

Siegler, who directs the University of Chicago Law School’s Federal Criminal Justice Clinic, spent the summer after graduating from Yale Law School at the DC Public Defender Service before a federal district court clerkship. As other lawyers had done for him, Rapping took Siegler under his wing and put her to work.

In court, Siegler recalls Rapping standing firm before judges, conveying that, whatever the consequences to him, “I’m going to press what’s in the interest of my client, and I’m not going to be intimidated by your power.” As she sees it, that’s what he’s still doing, but on a much wider scale.

One of the ways Rapping does that is to make public defense a more viable career path for law students. UChicago is one of 19 participants in the Gideon’s Promise Law School Partnership Project, which funds yearlong fellowships for graduates to work in public defender offices that need an infusion of idealistic and dedicated legal talent. After the fellowship, the program guarantees them a job in that office as a public defender.

Like the young attorneys Rapping trains through Gideon’s Promise, these students represent what he considers the leading edge of a modern civil rights movement. Reforming the criminal justice system is not a cause that spurs people to the streets like the outrage over the police killings of Michael Brown or Freddie Gray. But the comparative invisibility of the problem makes it especially insidious. “For every Michael Brown, there are tens of thousands,” Rapping says—“tens of thousands,” he repeats for emphasis—who are arrested, have their rights denied and their lives altered, for relatively minor offenses, if they have committed a crime at all.

“The incarcerated population is almost exclusively poor, disproportionately of color,” Rapping says. “These are populations that, through media, through political campaigns, we have successfully painted as subhuman, and we’ve all bought into that criminal justice narrative. And so no one is demanding justice for these folks, they’re saying just lock them away. And that’s a really hard narrative to change.”

He tells the Maryland attorneys that their generation will have to struggle, standing up to judges who threaten them with contempt of court and advocating for resources in an unsupportive political environment. “You all are going to build a culture, you’re going to build a set of expectations,” he says. “It’s going to be hard for you.”

However far-reaching the vision Rapping brings to Gideon’s Promise, he describes the process of achieving it with a litigator’s realism: “Incrementally, with patience, step by step.”

The problems in the criminal justice system require adaptive solutions, he says, using a management term he has taken to heart. A technical solution would be a new law or rule. Those are necessary—the Voting Rights Act, for example—but not sufficient. Such a step offered a legal tool to advance civil rights in the 1960s, but real change required ongoing moral persuasion to alter the entrenched cultural belief that African Americans should not vote. An adaptive solution.

“The great success would be, down the road, that our lawyers have been at the front line of a larger movement to really change a criminal justice narrative that developed over the last 40 years that is all about demonizing certain communities in an effort to promote tough-on-crime policies,” Rapping says. “Not just changing policies, but changing the story that drove those policies in the first place.”

The constitutional right to an attorney is long settled law, but until society amends the expectation to include the highest quality representation, Rapping believes, the spirit of Gideon v. Wainwright goes unfulfilled. And until the system incorporates respect for the humanity of the accused, regardless of their means, he will challenge its conception of justice.

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