Specialized Criminal Courts were created in an effort to offer non-punitive responses to the commission of crime. The promise of these courts was that they would remove select populations from the traditional legal system and offer them something different, and perhaps better, than mere punishment and incapacitation.

However, the current selection processes for Specialized Courts – in which judges and prosecutors have almost completely unfettered discretion to decide both the criteria by which potential participants will be allowed to participate and whether any individual defendant meets such criteria – perverts the notion of providing specialized services to specific populations. Instead of selecting defendants based on neutral criteria, the discretionary bias inherent in the process invites judges and prosecutors to take extrajudicial considerations into account. These considerations result in the reinscription of already existing privilege and, correspondingly, the reinforcement of the biases that permeate much of the criminal legal system, such as those based on racial presentation.

In this Article, I argue that judicial and prosecutorial selection discretion should be strictly limited, and that specialized courts should instead seek to adopt systemized selection models that presumptively favor the most disadvantaged defendants.

The drafters embedded the idea of the public trial into our constitution as a supplemental mechanism to attempt to ensure that the rights of the accused are protected in our courts. The courts have always been understood to be imperfect institutions, vulnerable to corruption, incompetence, and malice. From the beginning, procedural protections were instituted to curb the most outlandish forms of court malfunction – due process requirements, rights to confrontation, protections from self-incrimination, etc. But the ultimate judge of whether the operation of the courts aligned with the expectations of society would be the public. Shining daylight onto the courts would be the ultimate disinfectant.

But the drafters had no reason to foresee the waning of the trial, and the correlated rise of the plea bargain. Trials might be where truth and justice are conjured through a well-choreographed dance of adversarial interlocution, but plea bargains are where almost all cases are resolved, truth and justice be damned. Building on scholarship from Jocelyn Simonsen, Andrew Crespo, and others, this Article argues that allowing the continued veiling of plea bargaining in secrecy undermines the intent of the First and Sixth Amendments, and is antithetical to the principles that underlie the existence of the right to a public trial.

This project addresses the tension between public defense and progressive, justice-based, community lawyering, and offers strategies for public defenders to engage in movement lawyering. This builds on the wealth of previous scholarship which recognizes the central role of criminal justice advocates as agents of change.

This article examines Yarls v. Bunton, a 2016 case in which the ACLU brought suit (on behalf of a class of incarcerated criminal suspects) against the New Orleans Parish public defender’s office alleging that the office was violating the plaintiffs’ Sixth and Fourteenth Amendment rights by placing them on a “waiting list” for representation.

In this Article, I suggest that this kind of collaborative litigation strategy, wherein public defenders cooperate with impact litigators for the benefit of their future clients, can be a model for public defense movement lawyering. Such approaches would be preferable to prior models because they would neither compromise defenders’ ethical obligations (e.g., impact strategies encouraging defendants not to plead to minor marijuana possession charges, but instead to demand trial) nor would they relegate public defenders to only engaging in their traditional roles.

The law has accepted that when we look at the people to whom the criminal legal system directs its attention, what we should see is a risk analysis. At the pre-arrest stage, the jurisprudence around doctrines such as “stop-and-frisk” center on what actions officers can take in response to perceived risks the physical safety of police and the community. Bail-setting decisions are based in a concept of flight risk. Sentencing courts foreground recidivism risk. Parole and probation departments, as a practical matter, ask themselves to assess the risk of a “wrong decision,” which in that context unscientifically calculates the risk that defendants granted any form of perceived leniency will do something that will prove that such mercy was misplaced. Similarly, legislators tasked with shaping the criminal law are often guided by questions of personal and professional risk – the hazards associated with being “soft on crime” do not necessarily lie in a resistance to compassion, but instead in risk intolerance.

This Article intends to take up the question of how the criminal legal system came to rely on “risk” as the primary conceptual framework motivating judicial behavior. It will offer what is perhaps a surprising, albeit it simple, answer: that the risk paradigm arose so seemingly inevitably that alternative guiding principles have never been given proper consideration. It will argue that risk is the wrong lens through which to look at criminal law because it thrives on fear of perceived potential outcomes, while simultaneously ignoring what we know about real outcomes. As an alternative to the risk paradigm, this Article will propose that the criminal legal system move to a “need paradigm,” which centers around assessing the rehabilitative needs of the defendant and the restorative needs of the community, with the ultimate aim of preventing – not merely predicting – recidivism.