The image that came to mind is Capt. Obvious, mostly because the military title for Attorney General, and how he’s called “general” as if he’s about to lead a brigade of lawyers into battle, always made me chuckle. But prawfs Dan Epps and William Ortman have proposed that if the government gets one, why not the defense?
The United States needs a Defender General—a public official charged with representing the collective interests of criminal defendants before the Supreme Court of the United States. The Supreme Court is effectively our nation’s chief regulator of criminal justice.
But in the battle to influence the Court’s rulemaking, government interests have substantial structural advantages. As compared to counsel for defendants, government lawyers—and particularly those from the U.S. Solicitor General’s office—tend to be more experienced advocates who have more credibility with the Court.
Most importantly, government lawyers can act strategically to play for bigger long-term victories, while defense lawyers must zealously advocate for the interests of their clients—even when they conflict with the interests of criminal defendants as a whole. The prosecution’s advantages likely distort the law on the margins.
As should be clear, the role of the Defender General would be very different from that of the AG. That they should have coordinating (but nifty) titles might well give rise to inapt comparisons. There will no vast bureaucracy of lawyers under the DG’s command, and the DG may well have no day-to-day authority over anyone. But that’s not really what the position would exist to do.
There is no official voice of the defense. There are organizations, such as the National Association of Criminal Defense Lawyers, and a vast array of activist organizations that either speak for factions within the defense umbrella, from the ACLU to the National Lawyers Guild, but come at it from a deeply agenda-driven posture that a great many criminal defense lawyers find unacceptable, if not dangerous and counterproductive.
When the Supreme Court makes rules, the attorney general and solicitor general are taken very seriously in their views on their efficacy. But what about their impact on the defense? Plenty of people and groups may put their two cents in, but there is no authoritative voice. That’s one place where the DG would matter enormously.
If designed carefully, staffed with the right personnel, and given time to develop institutional credibility, a new Office of the Defender General could level the playing field, making the Court a more effective regulator of criminal justice. In some cases—where the interests of a particular defendant and those of defendants as a class align—the Defender General would appear as counsel for a defendant. In cases where the defendant’s interests diverge from the collective interests of defendants, the Defender General might urge the Court not to grant certiorari, or it might even argue against the defendant’s position on the merits. In all cases, the Defender General would take the broad view, strategically seeking to move the doctrine in defendant-friendly directions and counteracting the government’s structural advantages.
The way the system is currently structured, cases addressing huge issues, constitutional rights, processes that will impact thousands if not millions of people, are represented by a lawyer representing one individual defendant. That lawyer’s duty is not to the betterment of the law, the broader interests of defendants, but to the client and only to the client. If it means selling out the law for posterity to get the defendant in one case out, that’s what must be done.
But such decisions affect everyone, and yet there is no one to speak on behalf of the all the people who aren’t represented in any given case. Sure, there are amici, but the amici for one side are often offset by the amici for the other, and regardless, they tend to reflect the sort of idiosyncratic views of the organizations they represent or the theory they’re pushing. What they are not is a legitimate spokesperson for the defense side of the equation, apart from the interests of the individual defendant before the court.
And then there’s the problem of the bad case or bad lawyer, where the peculiarities of the matter lend themselves to a ruling that would prove disastrous when applied to others. Or the case where the lawyer arguing the cause either isn’t up to the task or, given the new “specialty” of Supreme Court advocate, lacks the foundational understanding of criminal law to appreciate the significance of his arguments. There have been some damn poor arguments made on behalf of defendants by otherwise excellent lawyers who just don’t know what they’re talking about when it comes to criminal law.
Of course, there is a kicker (as there usually is).
If designed carefully, staffed with the right personnel, and given time to develop institutional credibility…
That’s a very big “if,” and one that raises some very difficult problems. Who would be “trusted” to speak for the defense? As experience with criminal defense bar associations has taught me, it’s herding feral cats, with constant disagreement based on our varying experiences and personal levels of risk tolerance, among many other things.
To name an official voice, a person in whom enough of the criminal defense bar reposes trust in her making the very hard choices that could keep a defendant out, or put him in, as the case might be, might be impossible. To have the same elected official who nominates the attorney general nominate the defender general might smack of a little more conflict than anyone can stomach. Would that person serve the defense or serve his patron’s administration?
How we would get past this big “if” would itself be a very contentious issue, but the point, that the defense side needs a voice comparable to the prosecution side in the making of the sausage of the legal system seems undeniable. And like the solicitor general who will stick his nose into cases to protect the government’s interest, we could surely use a DG to do the same for the defense.