One Change That Could Make American Criminal Justice Fairer

The system systematically favors prosecutors. Creating a position of defender general would be a step toward righting things.

The single most influential job in American criminal justice is one that most people have never heard of: the deputy solicitor general who oversees criminal prosecutions. This is the person in the Office of the U.S. Solicitor General primarily responsible for making the government’s arguments in criminal cases.

Understanding that job, and that person’s role in shaping criminal law in this country, reveals a serious, hidden problem: no equal office exists for the country’s defendants. Over time, that imbalance has worked to undermine the Supreme Court’s acknowledged responsibility to provide “equal justice under law.”

To see how this plays out, begin with the fact that the Supreme Court is the most important institution—for all practical purposes, the only institution—that regulates criminal justice for the nation as a whole. By interpreting the Constitution, the justices set rules for criminal cases at the federal, state, and local levels. If you’ve ever watched a cop show on TV (or, for that matter, been arrested), you’ve heard the Miranda warnings. Those come from the Supreme Court. So do many more rules that govern police investigations, the use of forensic evidence, punishment for crimes, and many other crucial parts of the process that determines potentially life-changing legal consequences for millions of people each year.

In theory, Congress and state legislatures could take an active role in establishing rules and standards that go beyond the constitutional minimums. But mostly they don’t, meaning that for many issues Supreme Court decisions alone set the rules.

This state of affairs isn’t inherently objectionable. Indeed, given the one-sided, “tough on crime” attitudes that often seem to dominate political discussions, the idea that life-tenured judges are positioned to make fairer rules than politicians seems reasonable. The problem, though, relates to the Supreme Court’s rule-making process.

The Court doesn’t issue decisions on important policy questions in the abstract. Instead, it decides cases—specific disputes between individual defendants and government prosecutors. The Miranda warnings, for example, are so named because they come from a case involving a defendant named Ernesto Miranda. This process of case-by-case adjudication favors the prosecution in subtle, but profound, ways.

Attorneys from the solicitor general’s office appear in most criminal cases that come up to the Supreme Court, either as prosecutors themselves, in federal cases, or as an amicus curiae (“friend of the court”) in support of state prosecutors. On the other side are lawyers for individual defendants. Often this results in an experience gap between the two sides.

Attorneys in the solicitor general’s office are seasoned Supreme Court litigators who know how to pitch a case to the justices. Michael Dreeben, who held the criminal-deputy position for more than two decades before stepping down last summer, argued more than 100 cases during his years at the solicitor general’s office, and was regarded as a brilliant advocate who developed deep credibility with the justices.

Sometimes, of course, the defense lawyer in a criminal case has extensive Supreme Court experience. But this is the exception. Frequently, the defendant is represented by a lawyer who knows the case well from handling it through the lower courts, but whose lack of exposure to the Supreme Court and its processes shows.

That’s not just our opinion: In public remarks, Justice Sonia Sotomayor, the Court’s most reliable champion of criminal-defendant rights, described as “malpractice” the attitude of inexperienced lawyers who refuse to cede their cases to experts because “this is my one shot before the Supreme Court and I have to take it.” Justice Elena Kagan agreed, observing at a law school appearance that the “litigants who are underserved in terms of lawyering quality are criminal defendants.”

The gap in experience is important, but it isn’t the government’s biggest advantage. The real secret to prosecutors’ influence in the Supreme Court is that they can play the long game. This dynamic can be seen most starkly through what Supreme Court experts call “vehicle selection.” The solicitor general’s office tries to shape the Supreme Court’s docket so that when an important legal question comes before the justices, it reaches them in the light most favorable to the government. When prosecutors lose a case that has unfavorable facts in a lower court, the government can choose not to seek further review, sacrificing the particular conviction in service to the rule they hope the Court will eventually make.

Defense lawyers, on the other hand, are bound by legal ethics to do all they can to win a case for their client, even if doing so isn’t likely to produce the best rule. And that’s as it should be. Unlike prosecutors, who represent an abstract entity (the “people,” or the “United States”), a defense lawyer represents a real human being with a criminal sanction hanging over his or her head.

But while the different rules about what kind of arguments prosecutors and defense lawyers can make are logical enough, they lead to a major asymmetry. The government can generally give the Court more attractive cases and is more able to make arguments that lead to the most favorable rules for itself, even if doing so means taking a loss in the particular case at hand. Say, for instance, the deputy solicitor general in charge of criminal cases realizes at oral argument that the justices aren’t buying what he’s selling. Because his main concern is law favorable to government interests in the long run, he might try to salvage the situation by proposing a compromise, even one that means the government loses the case actually before the Court. A criminal defense lawyer, conversely, can never advance a view of the law under which her client would lose. Combined with the government’s battle-tested advocacy, there’s every reason to think this dynamic warps the law over time, making it more favorable to government interests than it would otherwise be.

As we argue in a forthcoming article in the University of Pennsylvania Law Review, the solution to these distortions is to create a public Office of the Defender General that would be responsible for advocating for the collective interests of criminal defendants in every Supreme Court criminal case—in some cases as counsel for individual defendants, and in others as an amicus alongside the lawyers for the parties. The defender general would serve as a counterweight to the solicitor general. The office would be staffed with expert Supreme Court practitioners who would know how to persuade the justices, as well as criminal-justice-policy experts who could help the defender general provide the Court with useful information about the potential consequences of its rulings.

The defender general’s responsibility to represent the collective interests of criminal defendants would introduce a fundamentally different perspective to many Supreme Court cases. In some instances, where a particular defendant’s interests perfectly aligned with defendants’ interests more generally, the defender general could directly represent the defendant. But in other cases, the defender general might appear as an amicus, arguing for the rule most likely to persuade the Court—even when doing so meant disagreeing with the defendant in the case.

This might all sound a bit abstract, so consider an example. Bail and pretrial-detention policies are an important target of criminal-justice reformers today, because of their profound human costs. The Court could have done much more to limit the use of pretrial detention, but it hasn’t.

In the 1987 case United States v. Salerno, the Supreme Court gave courts across the country significant leeway to order the detention of criminal defendants suspected to be dangerous. The lead defendant in that case was Anthony “Fat Tony” Salerno, the boss of the Genovese Mafia family, who was allegedly involved in multiple murder conspiracies. If any defendant has been dangerous enough to merit pretrial detention, he was. In theory, the Court shouldn’t base constitutional rules on the details of a single case at hand, but the justices would have been hard-pressed to ignore who Salerno was. Perhaps the Department of Justice was counting on exactly that when it asked the Supreme Court to hear the case. In any event, the Court’s ruling was, predictably, a victory for government interests: a broad holding that allows pretrial detention without bail for significant categories of criminal defendants whenever the government can show that they pose some form of “identified and articulable threat.”

A defender general could have encouraged the Court to look for a case that presented the issue of pretrial detention in a fairer, more characteristic light. If the Court accepted Salerno’s case anyway, she could have argued for a rule that would have allowed the government to detain an extremely dangerous defendant such as him before trial, while placing greater limits on pretrial detention for more typical defendants. That argument wasn’t available to Salerno’s lawyer, who was obliged to press for his client’s best interests—even though that strategy may have left most criminal defendants in the U.S. worse off. We can’t know whether a defender general’s participation would have changed the result in this particular case. But over the long run, the defender general would help correct prosecution-friendly distortions.

Reformers have rightly focused attention on many aspects of American criminal justice that are broken. Some reforms are easier than others. Creating a defender general is an unusually simple one, with the potential to provide large benefits for millions of people, given that it involves establishing only an office with two dozen employees. Criminal defendants—and potential criminal defendants, which all of us are—deserve no less.