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March 24, 2022

Spotlighting that public defenders are underrepresented on all high courts in the US

The nomination of Judge Ketanji Brown Jackson to the US Supreme Court has brought needed attention to the fact that persons with criminal defense experience, particularly public defense experience, have long been underrepresented on our nation's top court.  And this Bolts article, headlined "Despite Federal Gains, Public Defenders Largely Missing from State Supreme Courts," usefully highlights that the top courts in our states also have roughly five times as many former prosecutors as former public defenders.  Here is how the article starts (with links from the original):

Ketanji Brown Jackson’s past work as a public defender emerged as a focal point of her confirmation hearings this week as Joe Biden’s pick for the U.S. Supreme Court. If confirmed, Jackson would be the first former public defender on the high court in more than three decades, and also the first Black woman to join the court, carrying on the legacy of Thurgood Marshall, the nation’s first Black justice and the last with public defender experience. Biden has already tapped former public defenders for federal judgeships at a record rate.

“You are standing up for the constitutional value of representation,” Jackson said during her hearings on Tuesday, defending her record from Republican attacks.  Her supporters, meanwhile, have cheered Jackson’s experience as adding a much-needed perspective to the court.  From the way this clash has unfolded, you’d think that judges with public defender backgrounds are part of the routine tit-for-tat of judicial nominations, a perspective that Democrats relish adding to the bench when they get the opportunity.

But in state supreme courts around the country, there is comparatively little momentum to install judges with public defense backgrounds, despite the great power those judges hold in interpreting criminal law.  The vast majority of criminal cases are decided at the state level, and according to a study by the Brennan Center for Justice, as of 2021 only seven percent of state justices are former public defenders.  More than a third are former prosecutors.

In the two most populous states with Democratic governors, California and New York, efforts by some advocates to convince recent governors to appoint public defenders have fallen short, and former prosecutors have been added to the bench instead.

“The high courts of every state and the U.S. Supreme Court are regularly confronted with novel questions about the interpretation of criminal statutes and procedure,” said Alan Lewis, the chair of the New York State Association of Criminal Defense Lawyers’s screening committee. “It is very much regrettable if the only kind of experience that all of the judges bring to the bench from their previous career as advocates is for one side — the prosecution — with no experience on the other, representing accused persons.”

March 24, 2022 at 07:31 AM | Permalink


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