Good Trouble, for Lawyers

“John Lewis’ charge to “say something, do something” is easy to accept in the abstract but more important to accept in the face of risk.  Accepting this charge results in “trouble … good trouble” but trouble nonetheless.  Lawyer leaders have no other choice. “

Willie Santana

By: Willie Santana
Assistant Public Defender for the Third District

“My philosophy is very simple.  When you see something that is not right, that is not fair, that is just not, say something, do something.  Get in trouble, good trouble, necessary trouble.”

 -John Lewis

I only became fully aware of this quote in the aftermath of John Lewis’ death.  It is beautiful in its subtle complexity.  Upon reflection, I asked myself what does making “good trouble” look like for a lawyer and a leader.  Like most things, I look at it through the filter of my own experiences as a lawyer and an activist.   

Over the past few months, I have been reading and reflecting on systemic issues in our justice system.  I have read “Ordinary Injustice: How America Holds Court” and I am working my way through both “Usual Cruelty: The Complicity of Lawyers in the Criminal Injustice System” by Alec Karakatsanis and “The Color of Law: A Forgotten History of How Our Government Segregated America”  by Richard Rothstein.  Along the way, I have also reflected upon my practice and the tension that exists between the awesome responsibility to zealously represent individual clients and the necessity to seek wider systemic change. 

In the three years I spent at the Knox County DA’s office, I was allowed to pursue several systemic problems that I hope made “good trouble” for the community.  I was one of two lawyers in the first dedicated Elder Abuse prosecution unit in Tennessee.  I assisted my partner, the fantastic prosecutor Andrea Kline, and the state’s prosecutors’ conference to modernize the statutes regarding elder abuse and neglect.  Andrea and I also trainedevery single Knoxville Police officer and Knox County Sheriff’s deputy on how to recognize, respond, and investigate elder abuse and neglect cases.

In my role as a white-collar crime prosecutor, I worked with the sheriff’s department to establish a first-of-its kind Organized Retail Crime Unit (“ORC”) to tackle the “fat cats” of organized shoplifting rings, commonly called “the fences” who profit on buying and selling stolen merchandise, instead of focusing on the street-level shoplifters, called “the boosters.”  The DA’s office worked with the ORC to prove the fence’s role in an underlying scheme leading to a raid and prosecution, which eliminated the demand for stolen goods and eventually disgorged the fences of their ill-gotten profits.  In that role, I worked with the ORC, the retailers, and members of the legislature to draft and pass the Organized Retail Crime Prevention Act of 2017 and its update in 2018.  On my own time, after a contentious prosecution of a defendant who used his purported military service to steal from charities, I wrote and lobbied for the passage of the Tennessee Stolen Valor Act.  During that time, I prosecuted dozens of cases in both my white-collar crime and elder abuse dockets, ever mindful of my responsibilities to the public, the victims of crime, and my duty to seek justice. 

Nearly two years ago, I joined the public defender’s office in Morristown.  In many ways, my practice in rural criminal defense has presented me with more dire systemic issues than I faced as a prosecutor.  My clients face unaffordable bonds, an inhumane jail, long delays, and punitive draconian judge-made “presumptive sentences.”  

Despite that reality, the pressure to focus on only “doing the work” of zealously representing clients is intense.  It is also understandable.  Public defenders are asked to do a lot with very little time and resources.  We have real-live people accused of crimes whose life and liberty depends on our work.  These cases are often the most important thing in the lives of our clients and should be the number one priority of their lawyers.  I am not advocating that change. I am suggesting that criminal defense lawyers also have a moral imperative, as Mr. Lewis has put it, to make “good trouble” on behalf of our clients.  A responsibility to fight the propagation of systems of injustice. 

Indeed, I submit that it is not just a moral imperative for lawyers to make good trouble, but an ethical duty.  The preamble to the rules of professional conduct charge us with the responsibility make the law more fair and equitable: 

[A] lawyer should seek improvement of the law, access to the legal system, the administration of justice and the quality of service rendered by the legal profession. As a member of a learned profession, a lawyer should [use their knowledge of the law to]  reform of the law[.]  …  A lawyer should be mindful of deficiencies in the administration of justice and of the fact that the poor, and sometimes persons who are not poor, cannot afford adequate legal assistance. Therefore, all lawyers should devote professional time and resources and use civic influence to ensure equal access to our system of justice for all….

Lawyers working in the criminal justice system are the ones best positioned to “seek improvement of the law” and the systems that carry our laws.  We fully understand how to work within the systems of injustice that Bach and Karakatsanis describe.  We also know how to best reform those systems towards more just results.  In my view, to represent clients is to stand in their shoes, and zealously advocate their interests.  Nobody has a greater interest in repairing these systems than our clients.  They are the ones hurt by these systems in ways that few of us can ever fully understand. 

That is not to say that being advocates for change does not come at a risk.  Montgomery County Pennsylvania recently fired its two top public defenders for doing what I advocate here. Accepting the responsibility of leadership carries with it a certain amount of risk.  It is not a coincidence that resilience, grit, fortitude, and courage are always included in the qualities of effective leaders.  John Lewis’ charge to “say something, do something” is easy to accept in the abstract but more important to accept in the face of risk.  Accepting this charge results in “trouble … good trouble” but trouble nonetheless.  Lawyer leaders have no other choice. 

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