Professors Propose A ‘Defender General’ To Level The Playing Field

State court is where everyday criminal justice gets meted out. Generally speaking, if you’re arrested for robbery, or assault, you’re getting arrested by local police and prosecuted in a state court, under state law. What does it matter what happens in fancy federal courts across the country? And what could be less relevant to the informal, chaotic mess that is state court than the pristine halls of the Supreme Court of the United States?

For better or for worse, it’s all relevant. The Supreme Court decides when police can question a person who doesn’t have a lawyer, how to determine if a police officer used an unreasonable amount of force, and what kinds of excuses are acceptable for a lawyer to strike a person from a jury pool. This is why we hear (hopefully apocryphal) stories of state court judges in states like Minnesota or Florida asking why defense counsel is citing Ohio law, when a defender raises Mapp v. Ohio, the seminal Supreme Court case establishing the exclusionary rule, that evidence obtained in violation of the Fourth Amendment can’t be used at trial.

“Through the process of constitutional adjudication, the Justices develop rules that govern criminal-justice actors at all stages of the criminal process, from police officers to prison guards and everyone in between,” write law professors Daniel Epps and William Ortman in a new article in the University of Pennsylvania Law Review. “Observers often defend the Court’s aggressive role in criminal justice as a corrective to a political process that badly discounts the interests of criminal suspects and defendants. Yet many fail to acknowledge that the Supreme Court is itself a forum in which defendants are at a significant structural disadvantage.”

Most reform-minded advocates focus on leveling the playing field in state court; few direct their attention toward the Supreme Court, a major determinant of how those state court cases play out. Epps and Ortman highlight the need for such a focus. They note that when criminal defendants challenge the government on criminal justice policy at the Court, the government has significant advantages. Prosecutors can advocate for the long-term objectives of the government, even when that means sacrificing a particular conviction. Criminal defense lawyers, on the other hand, must zealously defend the interests of their particular clients even when that means working against a larger goal.

They also note that the prosecution is usually represented by experienced lawyers working within formal structures designed to maximize Supreme Court expertise and influence, such as the solicitor general’s office. Studies have shown that lawyers who belong to the elite Supreme Court bar and appear frequently before the justices win their cases at a much higher rate than inexperienced lawyers do. The experienced Supreme Court lawyers have the advantage of expertise arguing before the Court but also credibility among the justices. But defendants are often represented by whoever their trial lawyer happened to be, which is usually a person with little or no Supreme Court experience. Justice Sonia Sotomayor has called it a kind of malpractice. And Justice Elena Kagan said at a Justice Department event in 2014: “Case in and case out, the category of litigant who is not getting great representation at the Supreme Court are criminal defendants.” But, Adam Liptak of the New York Times writes, “persuading trial lawyers to cede a once-in-a-lifetime turn at the Supreme Court lectern to a fancy appellate lawyer is easier said than done.”

Epps and Ortman write: “The representational asymmetries likely distort the Court’s decisionmaking over time, at least at the margins, making criminal-justice policy friendlier to the government than it might otherwise be. As a result, the Supreme Court is a flawed regulator of criminal justice.” They propose a solution: an Office of the Defender General “that would be charged with advocating for the interests of criminal defendants as a whole before the Supreme Court.” In cases where “the interests of a particular defendant were aligned with the interests of defendants collectively,” the defender general could serve as defense counsel, or, if the defendant wants to keep his or her attorney, would work as advisers. But “where the interests diverged, the Defender General might decline to participate, argue that the Court should deny certiorari in a particular case, or even file a merits brief arguing against the positions taken by a particular defendant.”

It isn’t a crazy suggestion, nor is it entirely novel. In 2016, law professor Andrew Manuel Crespo suggested in an article in the Minnesota Law Review that the justices appoint expert lawyers to argue as amici alongside the defendants’ own lawyers. And Senator Cory Booker has proposed creating a Defender Office for Supreme Court Advocacy to represent criminal defendants and file supporting briefs.

There is another factor that might be biasing the Supreme Court against criminal defendants. As Liptak points out, “since the retirement of Justice Thurgood Marshall in 1991, the Supreme Court has not included any justices who have spent significant time working as criminal defense lawyers before ascending to the bench. By contrast, eight of the nine members of the current court have worked in prosecutors’ offices.”  The court could use some diversity in this area, Justice Sotomayor said in 2016 at Brooklyn Law School: “There is no criminal defense lawyer on the court.”

Washington Post columnist Radley Balko has called this disparity in experience a “massive blind spot” in the court’s decision-making. The lawyers who best understand the importance of basic protections for criminal defendants are public defenders, Kyle Barry, senior legal counsel for The Justice Collaborative, wrote in Slate last year. “This absence of experience extends beyond the Supreme Court to the entire federal judiciary,” he noted. “Former public defenders are woefully underrepresented on both the trial-level district courts and the circuit courts of appeal, while experience as a prosecutor remains a common and largely unquestioned career path to the federal bench.” All of which points to a broader cultural issue: Until Americans stop equating prosecution with justice and prestige, the playing field will never be truly level for defendants.