UC Berkeley

Over the past three decades, Brazil’s return to democracy has coincided with an unprecedented number of people being arrested by policing forces, processed in penal courts, and detained in carceral facilities. This penal state expansion has overwhelmingly impacted poor people and disproportionately those who identify as preto (“black”) or pardo (“brown” or “mixed race”). Brazil’s written penal procedure code requires that every person facing state prosecution have a defense attorney to counsel and represent them in court. However, most people facing prosecution in Brazil do not have the economic means to pay for someone with legal expertise to counsel them. Instead, they are provided counsel by a public defender, a state-employed staff attorney mandated to provide legal aid to indigent defendants. This dissertation asks: (1) Why do law graduates become legal aid professionals? (2) How do they understand their work mandate? (3) How do they influence penal court processes?

Legal aid workers are taken-for-granted actors in many penal courtrooms across the globe today. However, little is known or understood about the people who provide legal aid to the poor. Written laws often enshrine this service as a crucial instrument for ensuring people’s right to “fair trial” or “due process”; yet a vast literature demonstrates how penal practices produce and reinforce inequalities, revealing the ideal of “fairness” as but a chimera. Studies highlight the obstacles legal aid professionals face to effectively defending their clients’ interests in court; by contrast, the ways in which they do influence penal power remains undertheorized.

In contrast to more familiar accounts of legal aid workers as mechanisms of “access to justice,” I draw on the sociology of work, penality and state power to conceptualize legal aid workers as occupation, profession, and fabricators of legal power. First, legal aid professionals’ profiles and the reasons they choose this work are important to understanding the worldviews and commitments of the people who provide this service. Research shows that law graduates may be motivated to work in legal aid for various practical or political reasons. Yet not all candidates interested in such work are necessarily admitted to the position. I argue that the requirements of entry and the nature of competition (or not) over these positions is crucial to explaining who actually becomes a legal aid worker. Moreover, be it that they are initially driven to this work by pragmatic motivations, political ones, or a combination of both, the features of legal aid work routines influence who chooses to provide this service long term, and why.

Second, as professionals, legal aid workers are holders of license and expertise that position them to be able to address certain problems for clients through their services. Research shows that legal aid workers emphasize zealousness as an important characteristic of their professional ideal under conditions in which they and their clients are up against innumerous challenges. But the orientation of any professional’s zealousness depends on how they understand their mandate. I argue that legal aid workers’ understanding of their role is influenced by what they perceive to be distinctive of their position within the broader division of court work at ground level.

Third, through their everyday work, court authorities classify people and behaviors in ways that orient how and toward whom states exercise penal power. Contrary to traditional depictions of them as “enforcers” of the law, they do so by fabricating legal power. However, court processes and outcomes are shaped by various social dynamics. I argue that legal aid workers seek to mitigate the punishment their clients face amid these arbitrary forces through strategies to influence interpretations of their client’s ‘criminality’ and the ‘just measure’ of state force. It is through these strategies that they both reduce the harm individual clients face while also contributing to court routines that naturalize the selectivity of penal state power.

To develop these arguments, I investigate the trajectories, perspectives and work practices of public defenders in two Brazilian cities (Salvador and São Paulo). In both cities, public defenders are the primary source of counsel for most people facing prosecution. Yet legal aid is influenced in locally distinct ways amid democratization, state-building, and Brazil’s most dramatic transformation in penal procedures in two centuries. Drawing on interviews, participant observation and case-processing data collected over the course of 36 months of fieldwork, I analyze public defenders in these two jurisdictions to elaborate key dynamics that influence who becomes a legal aid worker, the services they believe they can provide to their clients, and their strategies to influence court processes.

In the first empirical chapter I demonstrate that increasingly high public defender salaries, job stability, and prestige of the position have made the public defender a highly sought-after occupation country-wide amid a hypercompetitive market for law graduates. New education initiatives have greatly increased access to law degrees for people from less advantaged social positions since democratization; however, possessing the resources to successfully vie over a limited number of spots in public defender offices has largely reserved the occupation for Brazil’s white elites—whose experiences are drastically different from the poverty, violence and racism lived by their clients. On the one hand, the practical advantages of the position have facilitated retention of legal aid workers from top law schools guided by a strong commitment to providing services to socially marginalized people. On the other, they have also attracted people who may be otherwise disinterested in the problems of their clients. However, I find that differences in the degree of interaction between defenders and poor people in local work routines influences who chooses to work in each city’s penal courts long term.

In the second empirical chapter I elaborate three roles public defenders believe they can play for their clients: (1) harm reducers; (2) bearers of information; and (3) humanizers. In both cities, public defender work is organized into three distinct stages; across both cities and all three stages, many public defenders emphasize their role as harm reducers based on the technical legal expertise that characterizes their professional craft. By contrast, emphases on their roles as information bearers and humanizers varied more widely. Far from reducible to personality or ideology, I show how variation is also shaped by differences in the resources, interactions and environments that characterize their ground level work.

In the third empirical chapter, I focus on public defenders who counsel poor people facing prosecution for drug trafficking in São Paulo, which accounts for the largest portion of people incarcerated in Brazil’s largest metropolis. I dissect three strategies they employ to mitigate the punishment clients face: instigating doubt, contestation, and negotiation. By analyzing why the same public defender employs different strategies between courtrooms, I identify two key dynamics that influence their possibilities for intervention: (1) prosecutors’ and judges’ relative (dis)trust in the validity of police work and (2) public defenders’ perceptions of the likely (mis)alignment between trial judges’ legal interpretations and those of higher courts. I demonstrate how probing legal aid strategies is a useful method to identify, synthesize and compare the arbitrary forces that influence court processes and outcomes.

In the concluding chapter, I summarize my key empirical findings and elaborate an agenda for future inquiry on legal aid. I also discuss the study’s broader contributions to scholarship on penality, state power and work.