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October 20, 2016

"The United States needs a defender general"

The title of this post is the headline of this interesting new commentary authored by Andrea Lyon, who is the dean at Valparaiso University Law School. She joined the school in July 2014. Here are excerpts:

At a time when nearly every political constituency agrees that we have over-incarcerated and over-criminalized our country, one question arises: Why did non-partisan recognition of this issue take so long? It’s no secret that we incarcerate a higher number of people per capita than any other first-world nation....

There has been no voice at the policy table for the accused, incarcerated and paroled. We have an attorney general of the United States. We have a solicitor general of the United States. The only lawyer that is enshrined in the United States Constitution is referenced in the Sixth Amendment: “In all criminal prosecutions, the accused shall enjoy the right to … the Assistance of Counsel for his defence.” Yet, the defense is not, and has not been a part of policy decisions regarding criminal justice matters. There is currently no office to represent criminal justice interests at the executive level the way that the attorney general does....

All over the United States indigent defense is in crisis. There are too many cases and insufficient resources to properly staff offices and prepare cases. Too often, the result is that we find out, sometimes decades after the fact, the wrong person was in prison, or perhaps executed. A defender general would know how the defense would be impacted by laws in ways that the prosecution and judiciary don’t anticipate. There could be real input for legislatures about the likely consequences of passing certain statutes, and to help prevent expensive and ineffectual decisions....

We have seen Secretary Hillary Clinton decry over-criminalization and mass incarceration and acknowledge her husband’s part in it. Had President Clinton been presented with a defender general’s analysis, he might have chosen a different path.

How would this work? As far as I know there is no similar office internationally. Israel has a chief public defender for the entire country, and that job is to run the defense attorney function for the indigent in that country. Vermont’s public defender system is called by that name. Some other states, such as Kentucky and Wisconsin, have statewide indigent defense systems. There is certainly recognition of the importance of representation of the accused in many countries, including our own.

What is not clear, though, is a national recognition of the need for a defense policy voice that is regularly included in the conversations that Congress and the executive branch have about these issues. Both branches can and do turn to the attorney general for her input on statutory and other concerns. The solicitor general also serves as an ongoing resource, but there isn’t an office that can represent the concerns of the defense, their families and their communities. Defendants and defense attorneys need a representative at the executive level who can collaborate on major policy issues, establish national and statewide standards, and coordinate training efforts within the criminal justice system. This is a crucial voice that should be a regular part of the executive discourse and an ongoing resource for indigent defense.

This defender general’s office should be created immediately. It should be appropriately staffed and liaisons created with each of the states and territories. The defender general should command the same respect and stature that the offices of the attorney general and solicitor general command, and the defender general would ensure that all of those interested in criminal justice have a seat at the table.

October 20, 2016 at 08:36 AM | Permalink


An interesting and, I think, valid point. The people's interests, that is the sovereign's interest, does not necessarily align with that of the government, even, and especially today, in the area of law enforcement.

Posted by: Fat Bastard | Oct 20, 2016 11:54:13 AM

Any nominations?

Posted by: Don't Ask | Oct 20, 2016 4:54:23 PM

How about Bryan Stevenson?

Posted by: Doug B. | Oct 20, 2016 5:44:02 PM

Would note that AGs and SGs handle more than just criminal cases. A large percentage of their work is in civil cases.

While having one Federal Defender (instead of different ones in each district) would give the federal defender system a unified voice at budget time, I am not sure that such a change would necessarily give the defense bar more of a seat at the table when it comes to substantive legislation. Both prosecutors and the criminal defense bar already have lobbyists who represent their interests and give them a voice-- both at the state level and the federal level. Whether they get real input on legislation depends on the particular whims of the people involved in the legislative process. The DOJs power in legislative matters comes from the AG being a cabinet officer who (hopefully) has the ear of the president who has the power to veto legislation. Merely creating a Federal Defender or Defender General does not give that new official the same inside track with the President that the AG has.

Big issue at the state level (and I am assuming that it would be at the federal level) would be how this office would fit into the executive or judicial branch. As noted above, AGs power in the federal system comes from being a cabinet position with regular access to the President. I can't see the Federal/ Public Defender being a cabinet-level position. (Being part of the cabinet is almost a guaranteed conflict of interest with the clients' interests.) Several states that I know of have an appointed public defender commission (with commission members serving a set term rather than at will of governor) that then hires the chief public defender, thereby placing two layers of insulation between the elected executive and the public defender. But such insulation from the legislative and executive branch weakens the ability of the public defender to be a strong voice for indigent defense.

Posted by: tmm | Oct 20, 2016 5:44:29 PM

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