The State, the Legal Profession, and the Defence of the Poor

Abstract

In this paper we seek to explain how and why institutional lawyers arise in a market structured by the state but traditionally dominated by private producers in capitalist societies. Although the literature on the sociology of the legal profession has concentrated very heavily upon the private sector's market dominance, increasingly institutional lawyers have taken over the defence of poor people charged with criminal offences. This has been, of course, a historical reality in jurisdictions such as the United States of America, but it is now beginning to figure prominently in reformist platforms in Britain.1 Not only has the literature been preoccupied with private lawyers, it has also, as Richard Abel has pointed out,2 been a sociology of the legal profession, not of lawyers' work. We stress the vital importance of refocusing debate in order to uncover the critical relationship between the social organisation of the profession and the nature of the work expected of the lawyer in criminal cases in capitalist society. Our research work began as a relatively narrow study of the provision of defence services for poor people in criminal cases in New York City.3 We found an assembly-line or bureaucratic due process system of justice, so well documented in the literature in the United States of America, in which the vast bulk of cases was disposed of without trial, usually by guilty plea.4 There was no shortage of theories to explain what we saw: some located this in case pressure,5 some in exchange-relationships between court professionals,6 and some in organisational analysis.7 As our interest in and knowledge of New York's system deepened, so these explanatory models seemed inadequate and we were increasingly led to consider why the system in New York was characterised by a mixed public and private lawyering arrangement. This led us back into the history of the movement for institutional defenders and the role that private lawyers were undertaking historically in the defence of poor people. In this way we came to see the critical role of the state and to understand current defender services as the outcome of the way in which the legal profession responded to the state's deeply-embedded criminal justice goals.