Professional diversity is needed on the bench
President Biden’s first slate of judicial nominees exemplifies diversity in more ways than one. Not only is there racial and gender diversity, there is also unprecedented professional diversity. This includes four out of the 11 nominees previously serving as public defenders. This diversity of experience, like racial and gender diversity, is worth celebrating. And part of heralding this diversity is guarding against the stigma that current and former criminal defense attorneys too often experience for their important and necessary work.
The U.S. Supreme Court case Gideon v. Wainwright (1963), which acknowledged that the constitutional right to counsel applied to state criminal prosecutions, described the right to defense counsel as “one of the safeguards of the Sixth Amendment deemed necessary to insure fundamental human rights of life and liberty.” Attorneys who heed the call to serve as constitutional guardians play an essential role in our aspiration for a fair and just criminal legal system.
As of 2019, nearly 40 percent of federal judges had previously served as prosecutors, while another 30 percent had otherwise represented the government in court. At the same time, less than 20 percent of federal judges had served as either public or private defense counsel.
We need more criminal defense attorneys on the bench. Theirs is an expertise to be respected and valued, never more so than when our country is finally starting to grapple with the human toll of overcriminalization, excessive policing and mass incarceration.
Defense attorneys are all too familiar with racial disparities in arrests, charging and sentencing. They see it every day in how their clients are treated by the system. They understand how counterproductive incarceration is at addressing drug use, mental illness and poverty.
As a country, we are in the very early stages of reimagining policing and undertaking comprehensive criminal legal reform. Part of this work is calling out the distorted portrayal of the criminal legal system as good, represented by the state, versus evil, represented by those charged by the state. This portrayal blatantly ignores the realities of why Black, Indigenous and people of color (BIPOC) are disproportionately swept into the criminal legal system. It ignores the racism on which the carceral system is built in this country.
Too often, though, prosecutors are applauded for their role in the criminal legal system while criminal defense attorneys are disparaged or viewed suspiciously. Prosecutors are positively defined by their most high-profile convictions, while criminal defense attorneys are conflated with their most high-profile or least sympathetic clients, particularly if they succeeded in keeping their client out of prison.
Popular entertainment, the media and tough on crime politicians aggressively push the false narrative that representing someone equates to condoning that person’s alleged actions. This dichotomy between prosecutors and criminal defense attorneys ignores the moral imperative that is criminal defense work.
Moreover, this dichotomy elides the role defense attorneys play in achieving just outcomes. For instance, prosecutorial misconduct is one of the leading reasons for wrongful convictions according to the Innocence Project. The National Registry of Exonerations reports that 54 percent of wrongful convictions are the result of official misconduct by either police or prosecutors.
Good criminal defense attorneys are guardians against prosecutorial misconduct and overreach. They uphold the safeguards that make our judicial system different from those in countries where people are routinely thrown in jail without due process.
If we do not celebrate defense attorneys and their work, we are saying one of two things: Either people should not have a right to a legal defense when their life or liberty is on the line, or that the lawyers who dare defend such people must commit an act of permanent professional sacrifice to do so. The first of these would require us to rewrite our Constitution. The second has for too long been true, which is a stain upon society, not upon the defense lawyers who stand up to defend the least popular and least powerful among us.
Criminal defense attorneys have much to offer in reimagining the criminal legal system, including from atop the bench. As Judge Ketanji Brown Jackson, Judge Deborah Boardman, Candace Jackson-Akiwumi, and Margaret Strickland advance through the judicial confirmation process, I hope to see their years spent as public defenders celebrated by the Senate. We need more judges who have seen the criminal legal system from the perspective of the people subjected to it.
Russ Feingold is president of the American Constitution Society. He served as a Democratic U.S. senator from Wisconsin, 1993-2011.