Moral Courage in Indigent Defense

TIGRAN W. ELDRED

I
n her article for this symposium on behavioral legal ethics, Professor
Catherine Gage OGrady makes an important contribution to the
growing body of scholarship in the field by focusing on the largely
overlooked area of mistake recognition and acknowledgement.1 As she
observes, most of the scholarship to date has been process focusedthat is,
addressing the heuristics, biases, and situational forces that can lead to
unethical behavior.2 By taking what she describes as a hindsight view,3
she brings a new and important dimension to the discussion, focusing on
how lawyers can take steps to uncover and address mistakes once they
occur.
In this essay, I take a different perspective, one that focuses on why
people are able to act ethically despite pressures to do otherwise. Social
science has convincingly demonstrated that the power of the situation can
exert significant influence over individual behavior, thus undermining the
claim that only bad people engage in unethical conduct.4 Yet, we know
that there are individual differences to how people respond to ethical

* Professor of Law, New England Law | Boston.

1 See Catherine Gage OGrady, A Behavioral Approach to Lawyer Mistake and Apology, 51 NEW
ENG. L. REV. 7 passim (2017) [hereinafter OGrady, Mistake and Apology]. For Professor
OGradys other scholarship on the relationship between behavioral science and legal ethics,
see, e.g., Catherine Gage OGrady, Behavioral Legal Ethics, Decision Making, and the New
Attorney's Unique Professional Perspective, 15 NEV. L.J. 671 (2015) [hereinafter OGrady,
Behavioral Legal Ethics]; Catherine Gage OGrady, Wrongful Obedience and the Professional
Practice of Law, 19 J.L. BUS. & ETHICS 9 (2013).
2 See OGrady, A Behavioral Approach, supra note 1, at 31. For a sampling of the large body of

scholarship on behavioral legal ethics, see generally Tigran W. Eldred, Insights from
Psychology: Teaching Behavioral Legal Ethics as a Core Element of Professional Responsibility, 2016
MICH. ST. L. REV. (forthcoming 2016).
3 See OGrady, Mistake and Apology, supra note 1, at 10.
4 See JOHN DORIS, LACK OF CHARACTER: PERSONALITY & MORAL BEHAVIOR 12, 2426 (2002);
LEE ROSS & RICHARD E. NISBETT, THE PERSON AND THE SITUATION: PERSPECTIVES OF SOCIAL
PSYCHOLOGY 811 (1991).

97
98 New England Law Review Vol. 51|1

dilemmas, which raises a core question: why do some individuals act more
ethically than others, even in similar situations?
To explore this question, I focus on a familiar domain from my past
workthe well-known ethical challenges faced by defense lawyers who
represent indigent clients in criminal cases.5 On the one hand, these
defenders often work under extremely trying conditions, including
persistent underfunding, excessive caseloads, and heavy pressure from
judges who want to move cases quickly.6 On the other hand, none of these
factors absolve lawyers from their ethical duty to provide competent,
diligent, and conflict-free representation to each client.7 Much of the
scholarship on indigent defense, including my own, has focused on
mediating these competing forces, which often turns into a discussion on
why professional obligations are honored so often only in the breach.8
But what about the other side of the equation: that is, those lawyers
who find it within themselves to act ethically, despite deep pressures to do
otherwise? Take, for example, the case of Ohio public defender Brian Jones,
whose conduct in a 2007 misdemeanor assault case has become somewhat
of a cause clbre in defense circles.9 Jones was assigned his clients case
the day before trial, assuring that he would have no time to interview
potential witnesses or to engage in the many other aspects of advocacy
needed to present a competent defense. As a result, he moved for a
continuance, as any competent lawyer would do. It is what happened next,

5 See Tigran W. Eldred, Motivation Matters: Guideline 10.13 and Other Mechanisms for

Preventing Lawyers from Surrendering to Self-Interest in Responding to Allegations of Ineffective

Assistance in Death Penalty Cases, 42 HOFSTRA L. REV. 473, 473 (2013); Tigran W. Eldred,
Prescriptions for Ethical Blindness: Improving Advocacy for Indigent Defendants in Criminal Cases,
65 RUTGERS L. REV. 333, 333 (2013) [hereinafter Eldred, Prescriptions]; Tigran W. Eldred, The
Psychology of Conflicts of Interest in Criminal Cases, 58 U. KAN. L. REV. 43, 7476 (2009).
6 See generally NATL RIGHT TO COUNSEL COMM., JUSTICE DENIED: AMERICAS CONTINUING

NEGLECT OF OUR CONSTITUTIONAL RIGHT TO COUNSEL 4980 (2009) (discussing the need for
reform for indigent defense).
7 See, e.g., NORMAN LEFSTEIN, SECURING REASONABLE CASELOADS: ETHICS AND LAW IN

PUBLIC DEFENSE 2554 (2011); ABA Commn on Ethics & Profl Responsibility, Formal Op. 06-
441 (2006).
8 See Eldred, Prescriptions, supra note 5, at 335, 339; see also Monroe Freedman, An Ethical

Manifesto for Public Defenders, 39 VAL. U. L. REV. 911, 91214, 91922 (2005); Bruce A. Green,
Criminal Neglect: Indigent Defense from a Legal Ethics Perspective, 52 EMORY L.J. 1169, 1169 (2003);
Peter A. Joy, Ensuring the Ethical Representation of Clients in the Face of Excessive Caseloads, 75
MO. L. REV. 771, 77172, 77692 (2010).
9 State v. Jones, No.2008-P-0018, 2008 WL 5428009 (Ohio Ct. App. 2008); Jack King, Ethics v.

Expediency, THE CHAMPION 1011 (Sept.Oct. 2007); William P. Wolf, A Tale of Two Counties
and Two Very Different Outcomes, THE CHAMPION, 5556 (Dec. 2013); see also LEFSTEIN, supra
note 7, at 25960; Bruce Green, Lawyers' Professional Independence: Overrated or Undervalued?, 46
AKRON L. REV. 599, 63032 (2013).
2017 Moral Courage 99

however, that was so remarkable. When the judge refused the requested
continuance and, instead, threatened Jones with contempt if he did not
declare himself ready for trial, Jones refused to be bullied into trying the
case. Even more remarkably, Jones did not capitulate to the mounting
pressure to try the case unprepared, even after the judge made good on his
threat by holding him in contempt and placing him in custody.10 In
reversing the contempt finding, the appellate court later found that Jones
had acted properly by refusing to conduct a trial in which he had no
meaningful opportunity to prepare, noting: It would have been unethical
for [Jones] to proceed to trial as any attempt at rendering effective
assistance would have been futile. [Jones] properly refused to put his
clients constitutional rights at risk by proceeding to trial unprepared.11
As anyone who has studied or participated in the criminal courts
knows, what is remarkable about the situation confronting Brian Jones was
not that he was assigned the case the day before trial, nor that the judge
exerted pressure on him to go forward even when it was patently
unreasonable to do so.12 Rather, what makes the case noteworthy many
years later is that Jones risked his own liberty to meet his ethical
obligations as a defense lawyer.
To be sure, the pressures Jones faced are unusual, as defense lawyers
are rarely required to risk imprisonment as the cost of competent
representation. But because so many defenders do face the daily travails of
working with inadequate resources and under such excessive caseloads
that ethical representation becomes a mirage, the question remains: what
does it take for lawyers to provide ethical representation for their clients,
even under such trying conditions?13
Undoubtedly, no single answer applies to all situations, as differing
motivations can spur lawyers to act for various reasons.14 That said, the

10 Jones was arrested in open court at the direction of the judge, placed in custody by the
Sheriffs Department, where he remained until later in the day when he posted bond and was
released. Jones, 2008 WL 5428009, at *1.
11Id. at *4.
12This is especially true in criminal courts that adjudicate misdemeanors throughout the
country. See, e.g., ROBERT C. BORUCHOWITZ ET AL., NATL ASSOC. OF CRIMINAL DEF. LAWYERS,
MINOR CRIMES, MASSIVE WASTE: THE TERRIBLE TOLL OF AMERICAS BROKEN MISDEMEANOR
COURTS 8 (2009).
13 See LEFSTEIN, supra note 7, at 9697 (noting that few defenders complain of, or seek relief

from, excessive caseloads); Bennett H. Brummer, The Banality of Excessive Defender Workload:
Managing the Systemic Obstruction of Justice, 22 ST. THOMAS L. REV. 104, 182 (2009) (noting
defenders rarely address excessive caseloads).
14 Seminal works on the motivations of lawyers who represent indigent defendants in
criminal cases include: Barbara Allen Babcock, Defending the Guilty, 32 CLEV. ST. L. REV. 175,
176 (1983); Charles J. Ogletree, Jr., Beyond Justifications: Seeking Motivations to Sustain Public
100 New England Law Review Vol. 51|1

purpose here is to look beyond anecdotes of individual cases to see

whether a more systematic answer can be gleaned from the available social
science on why people, such as Brian Jones, tend to act ethically in the face
of pressure to the contrary. The phenomenon, which is often called moral
courage, has been the subject of growing academic study.15 And while the
research conclusions in this area are still preliminary, the early findings can
be useful when considering why some lawyers resist the temptations
against subpar performance, and what can be done to encourage greater
acts of moral courage by others.
To engage this inquiry, this essay proceeds in three parts. Part I briefly
reviews the types of risks that defense lawyers often face when they seek to
meet their ethical duties, focusing on how the duty to maintain manageable
caseloads conflicts with the realities facing most defense lawyers who
represent the poor. Part II turns to the current state of the research on
moral courage. Part III considers the research implications that might be
the most useful in considering how lawyers can meet their ethical duties to
their clients.

PART I

The various pressures defense lawyers face in providing ethical

representation to indigent clients in criminal cases have been well-studied,
so for present purposes only a quick review is needed.16 For lawyers with
excessive caseloads and few resources, there are essentially only two
options: either process most cases quickly as part of the assembly line plea
project that virtually assures low quality representation to many clients, or
seek relief from the excessive workload as required by the professional
rules so that ethical performance can at least become a possibility.17 There
are few reported cases of individual lawyers who choose relief from

Defenders, 106 HARV. L. REV. 1239, 124959, 1254 (1993); Abbe Smith, Too Much Heart and Not
Enough Heat: The Short Life and Fractured Ego of the Empathic, Heroic Public Defender, 37 U.C.
DAVIS L. REV. 1203, 1207 (2004).
15 See infra notes 2747.
16 See Eldred, Prescriptions, supra note 5, at 34757 (summarizing the research on various
pressures that discourage ethical representation); Green, supra note 8, at 117885 (providing
an explanation based off research about the various pressures that discourage ethical behavior
of attorneys for indigent persons).
17 See ABA Commn on Ethics & Profl Responsibility, supra note 7 (interpreting the rules of

professional conduct to require that defense lawyers manage their caseloads so that ethical
representation can be provided, and setting forth specific steps lawyers who represent
indigent clients in criminal cases must take to achieve this objective).
2017 Moral Courage 101

excessive workloads, and experts believe that it happens infrequently.18

The reasons are many.
For private lawyers who are either assigned cases by the court or who
have received low-bid contracts to process a large number of cases, the
economic disincentives are obvious: asking for fewer cases risks
jeopardizing future appointments or losing a contract to provide defender
services in the community.19 There may be some rare instances where
appointed or contract lawyers have sought relief from excessive caseloads,
but as a general matter the disincentives essentially seem to mute protests
of high workloads.20
For public defenders, the disincentives to seek reductions in workloads
are more varied, as the request can either be made to a supervisor inside
the defenders office or directly to the court itself.21 In either situation, an
assortment of personal risks may exist.22 For example, a request to a
supervisor for relief from a heavy workload might be seen as proof that the
lawyer is not capable of meeting office expectations. In other instances,
requesting fewer cases might anger a supervisor who must then find ways
to reassign the cases to other lawyers inside the office. Finally, if the
defender is successful in obtaining a workload reduction from a
supervisor, there may be negative social consequences from other
colleagues in the office, who may resent being asked to do more so that
others can do less.
Any effort to go directly to the court itself to seek reliefwhich is
required if the in-house request is denied23can also bring a host of
negative consequences. These can include retribution from the judge or
court personnel, whose interest is likely the speedy processing of cases;
anger from supervisors who may become displeased that the defender has
taken the matter outside the halls of the defenders office; and disrepute
from others in the courthouse (including colleagues) who may believe that

18 See sources cited supra note 13.

19 See Eldred, Prescriptions, supra note 5, at 34849.
20 In contrast, there have been a number of cases that have sought increases in

compensation for appointed lawyers for indigent clients. See, e.g., Lavallee v. Justices in the
Hampden Superior Court, 812 N.E.2d 895 passim (Mass. 2004); N.Y. Cty. Lawyers Assn v.
State, 763 N.Y.S.2d 397 passim (2003).
21 ABA Commn on Ethics & Profl Responsibility, supra note 7. The duty to seek judicial

relief remains if efforts to seek relief from an excessive caseload inside the public defenders
office are unsuccessful. See id.
22 See LEFSTEIN, supra note 7, at 114 (discussing the risks to public defenders from

supervisors unhappy with caseload challenges).

23 See ABA Commn on Ethics & Profl Responsibility, supra note 7.
102 New England Law Review Vol. 51|1

seeking relief from cases is a sign that the lawyer does not have the mettle
to do the job.24
None of this is to say that individual defenders never make requests
for workload reductions. They do.25 But the available literature suggests
that it happens infrequently.26 The question is why would defenders be
willing to accept these risks, when most others refuse to do so? The
psychology of moral courage helps to shed some light on the answer.

PART II

The notion of moral courage is nothing new. Indeed, in the popular

imagination many examples easily come to mind, including some of our
most cherished heroessuch as Nelson Mandela, Martin Luther King, Jr.
and Aug San Suu Kyiall of whom sacrificed for the greater good, even
when it was dangerous to do so.27 But what exactly is it about the acts of
these brave, heroic people that reveal the type of moral courage that is
worth considering?
As a starting place, it is useful to define the concept. According to one
scholar, moral courage is associated with two core attributes. First, it

24 See LEFSTEIN, supra note 7, at 36, 114; Eldred, Prescriptions, supra note 5, at 35455.
25 See LEFSTEIN, supra note 7, at 114. In the few reported cases of requests for caseload relief
by an individual attorney, the request is part of a bigger litigation strategy from the leaders of
the defenders office to reduce caseloadsoften with outside pro bono counsel taking a leading
rolean obviously different situation in that the risk of the request, to the extent there is one,
is born by the whole office rather than an individual lawyer. See, e.g., State v. Bowens, 39 So.3d
479, 480 (Fla. Dist. Ct. App. 2010), aff'd in part, quashed in part sub nom.; Pub. Def., Eleventh
Judicial Circuit of Fla. v. State, 115 So.3d 261 (Fla. 2013) (describing the motion filed by
assistant public defender Jay Kolsky for judicial relief based on an excessive caseload). There
are also instances of directors of public defense organizations who have demonstrated the
courage to seek caseload relief despite the risks of doing so. See, e.g., Wayne Crenshaw, Fired
Public Defender Says He Plans To Challenge Ouster, THE TELEGRAPH (Aug. 3, 2016),
http://www.macon.com/news/local/article93517352.html [https://perma.cc/QAR8-U822]
(describing the case of a chief public defender in Houston County, Georgia, who was fired
after insisting that his office receive more resources to meet excessive caseloads); Letter from
National Association for Public Defense to the Houston County Board of Commissioners
(Aug. 16, 2016), http://www.publicdefenders.us/files/NAPD%20Letter%20to%20Houston
%20County%20Commissioners_SIGNED%20FINAL%20081716.pdf [https://perma.cc/TED4-
EA2G] (providing more details).
26 See LEFSTEIN, supra note 7, at 9697, 114.
27 See RUSHWORTH M. KIDDER, MORAL COURAGE 11 (2005). Other more anonymous acts of
moral courage also stand out in the popular imagination, such as the Unknown Rebel who
placed himself before approaching tanks during the Chinese governments crackdown of the
Tiananmen Square protestors in 1989. Linda J. Skitka, Moral Convictions and Moral Courage:
Common Denominators of Good and Evil, in THE SOCIAL PSYCHOLOGY OF MORALITY: EXPLORING
THE CAUSES OF GOOD AND EVIL 349 (Mario Mikulincer & Phillip R. Shaver eds., 2012).
2017 Moral Courage 103

involves the willingness to take a stand in defense of principle or

conviction, even when others do not.28 Second, the act of courage subjects
the actor to a number of possible risks for taking the stand, including
possible inconvenience, unpopularity, ostracism, disapproval, derision, or
even harm.29 And while other attributes are also sometimes added to the
definition,30 these twin pillarsthe willingness to act in defense of
principle when others do not and doing so at personal riskseem to
establish the cornerstone of the concept.
One way to better understand the idea of moral courage is to set it
apart from other acts of pro-social behavior. First, a person who acts with
moral courage can anticipate suffering personal costs for the conduct, often
at the hand of a perpetrator who has the power to extract a price for the act
of courage.31 The result is that a person who demonstrates moral courage
will often suffer immediate social costs without expecting any direct
rewards for the action.32 In contrast, in many other forms of helping
behavior the actor can expect praise or other positive consequences to
follow. This is particularly true for acts of physical bravery and heroism,
where the person who takes physical risks on behalf of another often will
be exalted for the action.33 Second, many other forms of helping behavior
may not entail the type of social costs that can be expected from an act of
moral courage.34 For example, assisting a person to escape from an
oncoming railway train certainly entails personal risk; but even in this type
of situation, what is missingand therefore what makes it less a matter of
moral courage than physical braveryare the social costs that can be
expected to occur after the act.
Given its special characteristics, what do we know about the factors
that tend to increase the possibility of moral courage? While there is no
conclusive answer yet from the research, a number of factors that correlate
to acts of moral courage have been identified.35

28Skitka, supra note 27, at 351.

29Id.
30 Others sometimes add a third dimension, the willingness to endure the travails that are

encountered when courage is needed. See KIDDER, supra note 27, at 7.

31 See Silvia Osswald et al., What Is Moral Courage? Definition, Explication, and Classification of

a Complex Construct, in THE PSYCHOLOGY OF COURAGE: MODERN RESEARCH ON AN ANCIENT

VIRTUE 14951 (Cynthia L. S. Pury & Shane J. Lopez eds., 2010).
32
See id.
33
See id. at 152. In addition, most acts of physical bravery can be distinguished in that,
while the motivation for physical bravery may be based in part on a sense of duty or honor, it
need not be driven largely by principle, which is the core of an act of moral courage. See
KIDDER, supra note 27, at 9.
34 See Osswald et al., supra note 31, at 15253.
35 Descriptions of the processes that contribute to moral action often are based on the work
104 New England Law Review Vol. 51|1

To begin with, a person needs to possess moral awareness so as to

avoid the danger of framing a decision in a way that makes it devoid of
ethical content. One apt description of this phenomenon is ethical fading,
which has been defined as:

[A] process that removes the difficult moral issues from a

given problem or situation, hence increasing unethical
behavior. From this perspective, such unethical behavior
occurs not because people are morally uneducated but,
rather, because they do not see the ethical in the
decision. Self-deception is identified to be at the root of this
problem. Such deception involves avoidance of the truth,
the lies that we tell to, and the secrets we keep from,
ourselves.36

In addition, once a person becomes aware of the ethical attributes of a

situation, the next step is whether the actor will take moral ownership,
which is the extent to which a person feels a sense of psychological
responsibility over the ethical nature of their own actions, those of others

of famed psychologist James Rest, who identified four factors as necessary to moral action: (1)
Moral Awareness (recognition that a situation raises ethical issues); (2) Moral Reasoning
(determining what course of action is ethically sound); (3) Moral Intent (identifying which
values should take priority in the decision); and (4) Moral Behavior (acting on ethical
decisions). See Robert Prentice, Behavioral Ethics: Can It Help Lawyers (and Others) Be Their Best
Selves?, 29 NOTRE DAME J. L., ETHICS & PUB. POLY 35 passim (2015). Professors Milton Regan
and Nancy Sachs contribution to this symposium provides an excellent and more extended
discussion of the Rest model. See Milton C. Regan, Jr. & Nancy L. Sachs, Aint Misbehaving:
Ethical Pitfalls and Rests Model of Moral Judgment, 51 NEW ENG. L. REV. 53 passim (2017). The
description I provide here is a slight modification of the Rest recipe, which did not focus
exclusively on the situations that require moral courage. See Osswald et al., supra note 31, at
159 (Before a person can act with moral courage he or she has to perceive an incident as a
situation of moral courage, and he or she has to take responsibility [i.e., moral ownership] and
has to feel competent [i.e., moral efficacy] to act.).
36 Ann E. Tenbrunsel, Commentary: Bounded Ethicality and Conflicts of Interest, in CONFLICTS
OF INTEREST: CHALLENGES AND SOLUTIONS IN BUSINESS, LAW, MEDICINE, AND PUBLIC POLICY 96
(Don A. Moore et al. eds., 2005). Many mechanisms contribute to ethical fading, including
confirmation bias (which causes people to seek out information that confirms their own
beliefs), self-serving bias (which causes people to interpret information in a self-serving
manner), and incrementalism (which causes people to fail to see how minor transgressions
can lead to larger ones). Professor OGradys article discusses many of these factors. See
generally OGrady, Mistake and Apology, supra note 1, at 2022. For other descriptions of these
and other mechanisms that can cause people to engage in self-deceptive behavior, see Jennifer
K. Robbennolt & Jean R. Sternlight, Behavioral Legal Ethics, 45 ARIZ. ST. L.J. 1107 (2013).
2017 Moral Courage 105

around them, their organization, or another collective.37 In large measure,

this requires overcoming the many forces that can cause a person to feel
morally disengaged from responsibility over a situation. Some of the more
common causes of disengagement are diffusion of responsibility (in which
the division of responsibility allows everyone to assume that others are
responsible for ethical dimensions of a situation), attributing blame to
others, and discounting the degree of harm caused by inaction.38
Even after moral ownership occurs, a person usually must possess the
confidence to believe that his or her conduct will make a difference. Known
as moral efficacy, the idea here is the actor needs to believe that he or she
has the capacity to achieve a positive outcome, rather than the defeatist
belief that the conduct will be for naught.39
Finally, not everyone with moral efficacy will actually engage in
morally courageous conduct. The question is what distinguishes those who
display moral courage from those who do not?40 While the data to answer
this question is still preliminary, a number of factors have been studied.
One key variable concerns the role of emotionspecifically anger
which seems to be an important trigger in producing moral courage.41 For
instance, in one study, researchers assessed whether participants were
willing to publicly sign a petition denouncing a well-known right wing
extremist party in Germany, despite the possibility that so doing could
expose them to serious negative repercussions, both verbal and physical.
While other predictors of moral courage were also evaluated, the study
found that anger at the right-wing partys goals and methods of operation
was the strongest predictor of the moral courage needed to sign the
petition.42

37 Sean T. Hannah et al., Moral Maturation and Moral Conation: A Capacity Approach to

Explaining Moral Thought and Action, 36 ACAD. MGMT. REV. 663, 674 (2011).
38 See id. at 67475 (discussing the work of psychologist Albert Bandura).

39 See id. at 67576 (We define moral efficacy as an individuals belief in his or her

capabilities to organize and mobilize the motivations, cognitive resource, means and courses
of action needed to attain moral performance, within a given moral domain, while persisting
in the face of moral adversity.).
40 See id. at 676.

41 See Osswald et al., supra note 31, at 156; see also Anna Halmburger et al., Anger as Driving

Factor of Moral Courage in Comparison with Guilt and Global Mood: A Multimethod Approach, 45
EUR. J. SOC. PSYCHOL. 39 passim (2015) (discussing the role of anger and guilt in moral
courage).
42 See Daniela Nietsa Keyser et al., Why Mood Affects Help Giving, But Not Moral Courage:

Comparing Two Types of Prosocial Behaviour, 40 EUR. J. SOC. PSYCHOL. 1136, 114752 (2010). One
explanation, according to researchers, is that people who experience a higher degree of anger
at a perceived moral wrong (most of the time a perceived injustice) take on more moral
agency and perceive themselves as more responsible to take action. For a more recent study
106 New England Law Review Vol. 51|1

Related to the role of anger are findings concerning the degree of moral
conviction a person possesses.43 In one set of studies, researchers found
that two of the most powerful situational forces that can temper ethical
conductthe power of obedience and conformityare less influential
when people possess strong moral convictions.44 The explanation provided
by the researchers is that the power of an obedient authority or a peer
group is strongest when a person has not developed a firm moral
conviction on how to respond in a given situation. In contrast, a firmly held
belief can act as a moral compass, helping to guide a persons conduct even
when there are strong situational forces pulling in other directions.45
Finally, there is evidence that sensitivity to perceived injustice matters.
For example, in one study researchers simulated a theft of a cell phone in
the presence of study participants to measure the likelihood that they
would protest the theft.46 Of the many personality variables that were
measured,47 the only factor that significantly correlated to a willingness to
display moral courage was a specific type of injustice measure called
beneficiary sensitivity, which is the tendency to perceive oneself as in a
comparatively advantageous position in relation to others. The data
suggests that persons high on this personality measure are more likely to
be willing to act with moral courage in response to an immediate norm
violation, such as the observed theft of the cell phone, whereas other
traitssuch as empathy, self-efficacy, and social anxietyare not
statistically significant.
To be sure, these factors are not exhaustive, as research to date has not
determined what other variables may also contribute to displays of moral

confirming the correlation between anger and the display of moral courage, see Halmburger
et al., supra note 41, at 47 (In sum, our results suggest that particularly the expression of
anger is highly predictive of moral courage behavior.).
43 See Skitka, supra note 27, at 35455.
44 Id. at 360 (In summary, there is considerable evidence that peoples moral convictions
protect them not only from pressures to blindly obey or comply with authorities commands
and decisions but also from various other kinds of strong pressure to set aside their beliefs,
including the pressure of majority group influence.).
45 See id. at 35455. At least with regard to conformity pressure, the research suggests that

people with strongly held convictions that are at odds with the group tend to disassociate
from others who do not share their beliefs, thus making it easier to inoculate themselves from
the group pressures that can cause conformity. Id.
46 See Anna Baumert et al., Interventions Against Norm Violations Dispositional Determinants of

Self-Reported and Real Moral Courage, 39 PERSONALITY & SOC. PSYCHOL. BULL. 1053, 105863
(2013).
47 The study measured the following variables: victim sensitivity, observer sensitivity,

beneficiary sensitivity, perpetrator sensitivity, moral disengagement, self-efficacy, empathetic

concern, social anxiety, self-deception and other forms of deception, extraversion,
agreeableness, conscientiousness and openness. See id. at 1063.
2017 Moral Courage 107

courage. It is possible, for example, that other influencessuch as the

relative cost of the risk to the individual, socio-economic status, or other
characteristicsmay be relevant and certainly need to be studied before a
comprehensive paradigm of the circumstances in which moral courage is
most likely to be displayed can be stated with certainty.
Yet, even with this limitation, the existing data provides some
indicationassuming that a person is morally aware, takes moral
ownership and believes that his or her conduct will matterthat moral
courage is more likely in people with high measures of beneficiary
sensitivity, who possess strong moral convictions against the norm
violation and whose emotional response is likely to involve anger rather
than other emotional reactions, such as empathy.

PART III

The research on moral courage helps to provide context for discussions

about the plight of criminal defense lawyers. For defenders with excessive
caseloads and other pressures to process cases quickly, compliance with
ethical rules that require competent, diligent, and conflict-free
representation often is an illusion.48 In other words, while the ethical rules
are a necessary precondition to defining the parameters of ethical conduct,
they are not, by themselves, sufficient to produce competent and diligent
representation on a systematic basis.
Nor have other efforts solved the problem. Decades of experience
indicate that persistent calls for greater funding of the defense function will
go largely unheeded.49 And institutional litigation can, and sometime does,
produce great successes in imposing caseload caps or requiring greater
resources for the public defense function.50 But given the extensive time
and resources necessary to conduct long and expensive institutional
litigation, no one has suggested that these efforts, as laudable as they are,
alone will remedy the crisis of indigent defense in every circumstance.51
Indeed, the record so far is that, despite the compelling need, only a small
percentage of such cases in comparison to the overall problem have been
initiated.52

48 See supra text accompanying notes 68.

49 See Darryl K. Brown, Epiphenomenal Indigent Defense, 75 MO. L. REV. 907, 90809 (2010).
50 See Cara H. Drinan, The Third Generation of Indigent Defense Litigation, 33 N.Y.U. REV. L. &

SOC. CHANGE 427, 42930 (2009).

51 Id. at 449.
52 Recently, there has been an uptick in lawsuits filed in locales such as Missouri, Montana,
and Louisiana, suggesting that the role of institutional litigation to combat excessive caseloads
and resource deficits for public defense may be on the rise. See Eli Hager, Why Getting Sued
Could be the Best Thing to Happen to New Orleans Public Defenders, THE MARSHALL PROJECT (Jan.
108 New England Law Review Vol. 51|1

It is against this backdrop that some of the nations leading experts

have recommended that defense lawyers for indigent clients in criminal
cases should, as a matter of course, seek to withdraw from cases or refuse
new appointments when caseloads become so unmanageable that ethical
representation is impossible for every client.53 I fully agree with this
strategy, both because it is the ethically proper response to excessive
caseloads, and because systematic efforts for caseload relief when ethical
representation is impossible may generate needed pressure for reform of a
broken system.54 Unfortunately, without additional support, the evidence
to date suggests that few lawyers will voluntarily take the initiative to seek
caseload reductions, given the many contrary pressures that exist. What
else, then, can be done?
The alternative explored here is to find ways to train defenders on how
to develop the fortitude needed to counteract the demands that produce
unethical behavior.55 In other contexts, a variety of training programs and
materials have been developed to help encourage acts of moral courage.56
Can such a training regimen provide defenders with the needed support to
overcome the many obstacles that have been identified? The following
discussion takes up this idea, with the proviso that it only describes the
contours of how such a program might look. More thinking about the
details of any training initiative, of course, would be needed before it was

28, 2016), https://www.themarshallproject.org/2016/01/28/why-getting-sued-could-be-the-

best-thing-to-happen-to-new-orleans-public-defenders#.yfIm5xuvx [https://perma.cc/5XBF-
2U4V].
53 See LEFSTEIN, supra note 7, at 251; Freedman, supra note 8, at 92022.
54 As Professor Lefstein has argued, a number of benefits would accrue from routine
motions for relief based on excessive caseloads, even if they are regularly denied, including
that the motions would (1) bolster claims of ineffective assistance of counsel in appropriate
cases; (2) bolster efforts to seek additional funding for defense services by demonstrating the
dire situations facing defenders; (3) protect defense lawyers from possible disciplinary action
based on excessive caseloads; and (4) focus greater media attention on the crisis in indigent
defense, which in turn can help generate pressure for needed reforms. See LEFSTEIN, supra note
7, at 25152.
55 See id. at 25354.

56 As has been noted,

Moral courage is an important virtue within society. Thus trainings,

workshops, and courses that aim to promote moral courage were recently
developed. Moral courage is not an innate behavior but can be learned
and trained. The moral courage trainings try to teach behavioral routines
that can easily be recalled to foster adequate and fast reaction.

Osswald et al., supra note 31, at 160 (citation omitted).

2017 Moral Courage 109

put into practice. Some of the cautions about this approach are also
discussed.
To start, because the burdens that cause defenders to engage in
unethical conduct occur after they are saddled with excessive caseloads,
and much of the pressure itself can be generated by the very offices in
which the defenders work, it is safe to assume that training to overcome
these obstacles is unlikely to take place in defender organizations where it
is needed most. The alternative is either for lawyers to be trained before
they start work as defenders or by outside organizations that can help to
educate defenders once they start representing clients. Both are realistic
possibilities. For example, many defenders start their careers learning how
to practice defense work in law school criminal law clinics, meaning law
schools might be a natural place to start any training process. In addition,
innovative organizations at the forefront of the movement for public
defensesuch as the National Association for Public Defense (NAPD)57
and Gideons Promise58have emerged as national leaders in training on
indigent defense. Assuming an interest and available resources, these
organizations might carry out trainings on how to develop moral courage
for defenders who have already started their careers.59

57 The NAPD states as its purpose to engage[] all public defense professionals into a clear

and focused voice to address the systemic failure to provide the constitutional right to
counsel, and to collaborate with diverse partners for solutions that bring meaningful access to
justice for poor people. Statement of Purpose, NAPD, http://www.public
defenders.us/stateofpurpose [https://perma.cc/7LNC-WK43]. As part of its mission, it engages
in a number of educational activities for its members, including regular on-line training
sessionsmany of which include strategies for addressing the problems of excessive caseloads.
Calendar of Events, NAPD, http://www.publicdefenders.us/calendar_month.asp
[https://perma.cc/D5CY-M6ZU].
58 See generally GIDEONS PROMISE, http://www.gideonspromise.org/ [https://perma.cc/77XS-

WZVE]. Professor Jonathan Rapping, the founder of Gideons Promise, has written a number
of excellent articles describing the organization, its mission, and activities. See, e.g., Jonathan
Rapping, The Revolution Will Be Televised: Popular Culture and the American Criminal Justice
Narrative, 41 NEW ENG. J. CRIM. & CIVIL CONFINEMENT 5 (2015); Jonathan A. Rapping, Retuning
Gideon's Trumpet: Retelling the Story in the Context of Today's Criminal Justice Crisis, 92 TEX. L.
REV. 1225, 1226 (2014). He has also written about the role that law schools can play in helping
to train future criminal defense lawyers about the values and skills needed to become effective
advocates. See generally Jonathan A. Rapping, Grooming Tomorrow's Change Agents: The Role of
Law Schools in Helping to Create a Just Society, 12 OHIO ST. J. CRIM. L. 465, 46566 (2015).
59 Training of new attorneys might be of particular value, as in many respects young

lawyers are most likely to be able to counteract the many cognitive and situational pressures
that can produce unethical behavior. See OGrady, Behavioral Legal Ethics, supra note 1, at 671
74.
110 New England Law Review Vol. 51|1

Next is the question of what a training program should entail. Each of

the obstacles identified by the research to effective representation by
defenders would need to be considered.

Moral Awareness

As I have argued elsewhere, once a defender becomes saddled with an

excessive workload, and starts to become socialized into a culture that
produces subpar performance, a form of ethical blindness can set in that
will make it very difficult for the lawyer to appreciate his or her
underperformance.60 As a result, training should include efforts to prevent
ethical blindness from occurring in the first place. There is some reason to
believe, for example, that teaching about the cognitive processes that
undermine moral awareness can help. These include strategies to make
people realize their own cognitive limitations, as well as strategies to
counteract them.61 In addition, training should also address the substance
of the ethical rules that require lawyers to properly manage their workload,
as well as to consider the important interpretive sourcessuch as the ABA
Formal Ethics Opinion on point and relevant secondary authority.62
Discussions of the problems caused by excessive caseloads should also be
included, with a focus on the many excellent reports that have been
generated to illuminate the problem.63

Moral Ownership

Much of the discourse on public defense tends to focus on the difficult

nature of the work, including the trying conditions caused by the failure by
those whose job it is to properly fund the public defense function. No
doubt these sentiments deserve significant consideration. But the danger of
emphasizing the fault of policy makers and others who are ultimately
obligated to provide proper resources for indigent defense is that it can
create a belief among defenders that they are not responsible for their own
ethical conduct. To instill moral ownership, this common (and
understandable) belief must be countered. In other words, defenders need

60 See Eldred, Prescriptions, supra note 5, at 38081.

61 See Robbennolt & Sternlight, supra note 36, at 117173. It is important to recognize,
however, that training people about their cognitive limitations is no easy task and often will
not be successful. As a result, the details of this form of training must be carefully calibrated to
take into account the social science on the power of psychological heuristics and biases. See
Eldred, Prescriptions, supra note 5, at 38890.
62 See generally LEFSTEIN, supra note 7, at 3754.
63 The comprehensive report by the Constitution Project could serve as this reference. See
NATL RIGHT TO COUNSEL COMM., supra note 6. Many other excellent reports are also available.
See Eldred, Prescriptions, supra note 5, at 33435 nn.16.
2017 Moral Courage 111

to be trained that, even though there are many others who deserve the
blame for failing to properly support public defense, in the end it is each
individual defender who must take personal responsibility for meeting the
ethical requirements of the profession. This, of course, is a delicate balance,
as no training program should be designed to berate defenders. But
carefully crafted, a program could both recognize the problem of excessive
caseloads and seek to instill in each defender the personal responsibility for
ethical representation.

Moral Efficacy

This may be the most difficult aspect of any training program to

develop, as anyone who studies the problem of excessive caseloads quickly
realizes that there is no easy solution. Requests to supervisors inside
defender offices, who themselves are under pressure to move cases
quickly, are likely to go unheeded if made in haste or without strategic
vision. As a result, any training would need to emphasize strategies that
might overcome these impediments. For example, training would need to
include thinking creatively about ways to enlist potentially sympathetic
supervisors into a strategy for office-wide caseload reductions. This might
include, for example, a group of line defenders working together to
develop litigation strategies based on successful past examples that could
be presented to a more senior supervisor for consideration.64 Trainers
might anticipate the need for this type of focus by helping to generate such
strategies as part of the training curriculum.65
For lawyers who make their requests directly to the court for caseload
reductions, there may be a number of additional pressures from judges or
court personnel who may be unhappy that lawyers are seeking to slow
down the speed of quick dispositions. How to deal with these pressures
would also need to be taught, for example by utilizing some of the well-
developed training programs that have been designed to counteract similar
pressures in other contexts. One well-known approach is called Giving
Voice to Values (GVV), a program that has been used in a wide-variety
of educational and professional institutions.66 Much of the GVV curriculum

64 See Osswald et al., supra note 31, at 160 (noting that training on moral courage should

include developing strategies for group rather than individual responses to dangerous
situations, which makes it easier to overcome the barriers to ethical behavior).
65 Professor Lefsteins chapter on litigation strategies in his report on excessive caseloads

could be extremely helpful here. See LEFSTEIN, supra note 7, at 16189. Training should also
focus on the legal recourses that a courageous defender might need to employ if he or she is
terminated for insisting on a caseload reduction. See id. at 11337.
66 See MARY C. GENTILE, GIVING VOICE TO VALUES: HOW TO SPEAK YOUR MIND WHEN YOU
KNOW WHATS RIGHT (2010); see also The Giving Voice to Values, UNIV. OF VA., DARDEN SCH. OF
BUS., [https://perma.cc/86HL-KHTL].
112 New England Law Review Vol. 51|1

focuses on the notion that learning how to act ethically in the face of
pressure requires practicein a sense, training the ethical muscle on how
to respond through repeated exercise. The idea is that practicing through
pre-scripting a response to the pressures that favor unethical behavior can
help to normalize taking risks needed for ethical action.67

Moral Courage

Assuming that defenders can be made morally aware, responsible, and

believe that their efforts will matter, the question remains how to
encourage the initiative needed to seek appropriate caseload reductions.
Again, part of this will require training on how to overcome personal risk
in order to act ethically, the type of training that is the focus of programs
such as the GVV curriculum. In addition, trainers should consider content
specific training that can help defenders develop the type of moral
convictions and sensitivity to injustice that are associated with activating
moral courage. Undoubtedly, some defenders either start their careers with
these qualities, or develop them during practice.68 But for those who do
not, training may help.
There is a range of available resources that demonstrate the depth of
injustice that many clients who are in need of indigent defense services
face. Two of the most prominent that could be helpful in nurturing these
values are The New Jim Crow: Mass Incarceration in the Age of Colorblindness
by Professor Michelle Alexander69 and the award winning documentary,
Gideons Army, by Dawn Porter.70 Professor Alexanders book, which is
well-known to many who study criminal law, is a searing account of how a
generation of young men of color has been incarcerated at alarming rates
for low-level drug crimes as part of an effort to rescind the gains of the civil
rights movement. As some have noted, reading this book can produce
deeply felt emotional responses to the injustices of mass incarceration
exactly the type of reaction that may be needed to spur moral courage.71
Dawn Porters documentary about the work of courageous public
defenders in the Deep South is equally powerful, as I can attest having sat
through two public showings. Each time, many members of the audience

67 See GENTILE, supra note 66, at ixxvii.

68 See, e.g., Smith, supra note 14, at 125964 (discussing reasons for, and literature on, moral
outrage felt by some public defenders).
69 MICHELLE ALEXANDER, THE NEW JIM CROW: MASS INCARCERATION IN THE AGE OF

COLORBLINDNESS (2012).
70 See GIDEONS ARMY, http://gideonsarmythefilm.com/ [https://perma.cc/9ZQJ-SGKV].
71 See Jennifer Schuessler, Drug Policy as Race Policy: Best Seller Galvanizes the Debate, N.Y.
TIMES (Mar. 6, 2012), http://www.nytimes.com/2012/03/07/books/michelle-alexanders-new-
jim-crow-raises-drug-law-debates.html [https://perma.cc/73LX-26Y2].
2017 Moral Courage 113

reacted with varying degrees of disgust, anger, and outrage at the

inequities displayed in the film. Again, these are the emotional reactions
that are associated with elevated risk-taking in the name of justice. No
doubt, many other such powerful resources exist as well.
Of course, exposing defenders to these or other invocative sources of
material does not guarantee that training efforts will produce greater
displays of moral courage. Some defenders will not develop the deep
moral convictions needed; others may feel a deep sense of injustice caused
by the inequalities of the system, but not experience the type of beneficiary
sensitivity that is associated with increased moral courage; and others may
not be able to internalize these experiences in a way that produces the type
of emotional response most likely to generate moral action. Even for those
who are primed to act courageously upon entering the profession, their
passion may dissipate over time as they work under conditions that so
often lead to burnout.72 However, in the end the question is whether this
type of trainingif well thought out and developedhas a potential for
greater success than no training at all. The available data on the
effectiveness of training moral courage, while certainly not conclusive,
provides some reason for optimism.73
Finally, an important word of caution: the assumption embedded in
developing a training program to nurture moral courage is that it is wise to
do so. There may well be value in equipping future (and existing)
defenders with the tools and training necessary for them to be more willing
to engage in the type of ethical practice called for by the rules of the
profession. But there are also risks. One significant question is whether
defenders who are more willing to risk sacrificing their own self-interest
out of deep moral conviction for their clients are always assured to be the
best defenders. For example, research has demonstrated that people who
display the types of deep moral convictions associated with moral courage
also tend to possess other attitudessuch as increased intolerance of

72 It is for this reason that programs such as Gideons Promise, which is profiled in

Gideons Army, are so important: they can nurture young defenders and help them maintain
the motivations that will sustain the type of courage necessary to do the work effectively. See
Osswald et al., supra note 31. For another discussion of some of the core values that should be
instilled in, recruitment, training and nurturing young public defenders, see Jonathan A.
Rapping, You Can't Build on Shaky Ground: Laying the Foundation for Indigent Defense Reform
Through Values-Based Recruitment, Training, and Mentoring, 3 HARV. L. & POL'Y REV. 161, 178
(2009).
73 See, e.g., Osswald et al., supra note 31, at 16061 (discussing the success and benefits of

moral courage training); see also Jonathan Haidt, Research on the Giving Voice to Values
Curriculum, ETHICALSYSTEMS BLOG (Feb. 6, 2014), http://www.ethicalsystems.org/
content/research-giving-voice-values-curriculum [https://perma.cc/WZA2-LP8J] (discussing
the value of training programs, such as GVV).
114 New England Law Review Vol. 51|1

dissimilar others and difficulties in conflict resolution74that might be less

effective for a defender. Some have suggested, for example, that given the
constraints under which defenders work, often a non-confrontational
approach that places value on cooperating with others (such as prosecutors
and law enforcement personnel) may generate the best results.75 Needless
to say, such a conclusion is controversial at many levels, and the point here
is not to resolve any debate about what constitutes an effective defender.76
Rather, it is simply to highlight that the values that might produce a
defender more willing to display moral courage in the face of pressure to
capitulate may not be well-suited for the cooperative type of advocacy that
has been suggested elsewhere.

CONCLUSION

The persistent problems that plague lawyers for indigent defendants in

criminal cases often seem intractable. Each effort at reform seems to be met
with resistance, or to depend upon the political will of those least likely to
provide it. The result has been in turn to ask defenders themselves to take
responsibility for ensuring that they are able to practice under conditions
that will allow for ethical representation. At one level, this seems
somewhat unfairafter all, why should those who work under such
difficult conditions be asked to shoulder the burden of redressing the
systems failings? Yet, because defenders are ultimately responsible for
providing ethical representation to each of their clients, it seems
appropriate to require them to do so.
What, then, can help lawyers meet these ethical obligations?
Preliminary research suggests that moral courage is a central ingredient in
spurring ethical conduct when the stakes are high. The approach discussed
here explores how training can nurture moral courage, especially for those
young defenders early in their careers who need to find ways to respond to
the types of pressures that so often produce subpar performance in
practice.

74 See Linda J. Skitka, The Psychology of Moral Conviction, 4 SOC. & PERSONALITY PSYCHOL.

COMPASS 267, 27375 (2010).

75 See, e.g., Nicole Martorano Van Cleve, Reinterpreting the Zealous Advocate: Multiple
Intermediary Roles of the Criminal Defense Attorney, in LAWYERS IN PRACTICE 29596, 310 (Leslie
Levin & Lynn Mather eds., 2012) (citing authorities who have made variations of this
argument).
76 For perhaps the best-known refutation of non-adversarial plea bargaining, see Albert W.

Alschuler, The Defense Attorney's Role in Plea Bargaining, 84 YALE L.J. 1179 (1975) (discussing
how the plea bargaining system forces defense attorneys to disregard the true interests of
their clients in favor of a faster administration of justice).