The Defender General
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ARTICLE THE DEFENDER GENERAL DANIEL EPPS† & WILLIAM ORTMAN†† 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 collective interests of defendants. The prosecution’s advantages likely distort the law on the margins. 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 † Associate Professor of Law, Washington University in St. Louis. †† Assistant Professor of Law, Wayne State University. For helpful conversations and comments, we are grateful to Bob Ackerman, Payvand Ahdout, John Blume, Andrew Crespo, Jeff Fisher, Barry Friedman, Trevor Gardner, Brandon Garrett, Daniel Harawa, Peter Joy, Elizabeth Katz, Pauline Kim, Orin Kerr, Bob Kuehn, Nancy Leong, Ron Levin, Marin Levy, Greg Magarian, Ronald Mann, David Patton, and Brian Tamanaha, as well as participants in workshops at Washington University School of Law, the 2018 Duke Judicial Administration/Judicial Process Roundtable, ClimenkoFest at Harvard Law School, and the Eleventh Annual Junior Federal Courts Scholars Conference at the University of Arkansas School of Law. Samantha Kobor, Danny Solomon and Sarah Tietz provided excellent research assistance. (1469) 1470 University of Pennsylvania Law Review [Vol. 168: 1469 would take the broad view, strategically seeking to move the doctrine in defendant- friendly directions and counteracting the government’s structural advantages. INTRODUCTION ........................................................................... 1470 I. THE PROBLEM ....................................................................... 1474 A. The Supreme Court as Criminal Justice Regulator .......................... 1474 B. Representation Distortion ........................................................... 1480 1. Unified Vision .................................................................. 1482 2. Quality of Advocacy ......................................................... 1493 3. Credibility ....................................................................... 1498 C. Previous Proposals ..................................................................... 1503 II. THE PROPOSAL ...................................................................... 1506 A. The Proposal and Its Benefits ...................................................... 1506 1. The Defender General’s Role in Certiorari ......................... 1507 2. The Defender General’s Role on the Merits ....................... 1511 B. Implementation ......................................................................... 1515 1. Selection and Accountability ............................................. 1515 2. Design of the Office .......................................................... 1521 C. Potential Objections .................................................................... 1522 1. Institutional Alternatives ................................................... 1522 2. Identifying Collective Interests .......................................... 1525 3. Other Generals ................................................................ 1528 III. EXTENSIONS .......................................................................... 1529 A. Modifying Ethical Rules ............................................................ 1529 B. State- and Lower-Court Involvement .......................................... 1534 C. Alternative Solutions .................................................................. 1535 1. Leveling Down ................................................................ 1536 2. Regulatory Alternatives ..................................................... 1538 CONCLUSION ............................................................................... 1539 INTRODUCTION Among its many other roles, the Supreme Court of the United States serves as a preeminent regulator of the nation’s criminal justice system. 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. 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 2020] The Defender General 1471 defendants.1 Yet many fail to acknowledge that the Supreme Court is itself a forum in which defendants are at a significant structural disadvantage. Quite simply, criminal litigation in the Supreme Court is not played on a level playing field. Rather, in the contest to influence the Court’s criminal justice policymaking, the government has three weighty advantages. First, and most importantly, prosecutors can “play for the rules.” They can advocate for the long-term objectives of the government as a unitary interest, even when that means sacrificing a particular conviction. Criminal defense lawyers, by contrast, must zealously defend the interests of their particular clients. They must play for the case, even to the point of making arguments that are contrary to the interests of criminal defendants collectively. Second, there is often a stark contrast in the quality of representation in criminal cases at the Court. While the prosecution is typically represented by experienced lawyers working within formal institutional structures designed to maximize Supreme Court expertise and influence, defendants often have lawyers with little or no Supreme Court experience. Two sitting Justices have publicly decried the problem,2 and scholarly analyses support their assessments.3 Third, government lawyers—especially lawyers from the Office of the Solicitor General in the Department of Justice—are repeat players before the Court. Beyond expertise, those frequent appearances give the Office credibility in 1 See, e.g., JOHN HART ELY, DEMOCRACY AND DISTRUST: A THEORY OF JUDICIAL REVIEW 173 (1980) (explaining the need for a “nonpolitical check on excessive severity” in the death penalty context); see also Donald A. Dripps, Criminal Procedure, Footnote Four, and the Theory of Public Choice; Or, Why Don’t Legislatures Give a Damn About the Rights of the Accused?, 44 SYRACUSE L. REV. 1079, 1093 (1993) (noting that the electorate “overwhelming[ly]” favors police and prosecutorial powers). 2 See Melissa Harris, Justice Elena Kagan Gives an Inside Look at the U.S. Supreme Court, CHI. TRIB. (Feb. 3, 2015, 4:05 PM), http://www.chicagotribune.com/business/ct-confidential-elena- kagan-0204-biz-20150203-column.html [https://perma.cc/AL3R-DSV7] (“‘I think that the litigants who are underserved in terms of lawyering quality are criminal defendants,’ [Justice] Kagan said.”); Janet Miller, Supreme Court Justice Elena Kagan Tells U-M Crowd About Serious and Not-So-Serious Workings of the High Court, ANN ARBOR NEWS (Sept. 7, 2012, 5:00 PM), http://www.annarbor.com/ news/supreme-court-justice-elena-kagan-discusses-the-serious-and-not-so-serious-workings- of-the-high-cour [https://perma.cc/QAX5-WLT5] (quoting Justice Kagan as saying, “Often, [criminal defense attorneys] are appearing before the Supreme Court for the first time. I hope that changes in the future” (quotation marks omitted)); Janet Roberts, Joan Biskupic & John Shiffman, Special Report: In Ever-Clubbier Bar, Eight Men Emerge as Supreme Court Confidants, REUTERS (Dec. 8, 2014, 5:57 AM), https://www.reuters.com/article/us-scotus-advocates-specialreport-idUSKBN0J M11E20141208 [https://perma.cc/N84B-ZE3Y] (“Said Justice Sonia Sotomayor: ‘I think it’s malpractice for any lawyer who thinks this is my one shot before the Supreme Court and I have to take it.’”). 3 See Andrew Manuel Crespo, Regaining Perspective: Constitutional Criminal Adjudication in the U.S. Supreme Court, 100 MINN. L. REV. 1985, 1988 (2016) (characterizing the Supreme Court criminal defense bar as “uniquely inexpert”); William C. Kinder, Note, Putting Justice Kagan’s “Hobbyhorse” Through Its Paces: An Examination of the Criminal Defense Advocacy Gap at the U.S. Supreme Court, 103 GEO. L.J. 227, 236 (2014) (“[T]he criminal defense experience deficit jeopardizes both the outcomes for individual defendants and the shape of civil liberties nationwide.”). 1472 University of Pennsylvania Law Review [Vol. 168: 1469 the eyes of the Justices. Credibility