During the past few years, the ability of smartphone recordings to capture police interactions with communities of color has shaken up thinking about law enforcement in the United States. Now with the nomination of a former public defender, Ketanji Brown Jackson, to the Supreme Court, a similar discussion could soon start about a related topic: how the court system treats the poor.
That may be by design. According to The Associated Press, nearly 30% of President Joe Biden’s nominations to the federal courts have been public defenders, compared with 24% who have been civil rights attorneys. Judge Jackson would be the first former public defender to sit on the nation’s highest court.
This emphasis in Mr. Biden’s judicial nominations comes at a time when approaches to criminal justice are undergoing a profound reassessment – particularly at the local level – following recent civil rights protests. In cities like San Francisco, St. Louis, and Philadelphia, district attorneys who were once public defenders are instituting standards for what crimes to prosecute, how to sentence, and when to impose bail.
Shortly after Chesa Boudin became district attorney in San Francisco two years ago, for example, he culled the ranks of assistant prosecutors and added public defenders. Within five months the city’s jail population was reduced by 40%.
But such reforms have drawn at least as much fire as praise. Although the idea that former public defenders may know better how to emphasize redemption and healing over punishment of suspects has begun to take hold, the full effects have yet to be known. It reflects a balancing of individual and societal interests inherent in the work of public defending – a balance that Judge Jackson would likely bring to the court.
“Public defenders require an ability not just to understand a decision, but its effect,” says Trent Ball, associate vice president of equity and access at Southeast Missouri State University. “So often they have to boil their decisions down to an individual losing something versus how does it impact the whole.”
A Supreme Court justice, he argues, “has to be comfortable that the decision he or she makes may not bear fruit now but will in the future. It is not just about judgment, but discernment. Jackson brings that.”
The public defense system in the U.S. was set up to help people facing criminal charges who lack the means to pay for a private lawyer and must be assigned a public defender. Many public defenders manage crushing caseloads on salaries that are often far below what they could earn elsewhere. In many cases, defendants meet their appointed attorneys for the first time when they appear in court.
Public defense is based on a constitutional principle, upheld in a 1963 Supreme Court decision, that every accused person is entitled to legal counsel. Public defenders do not have the luxury of choosing their clients. During her stint as a federal public defender in Washington, D.C., Ms. Jackson represented not just criminal defendants but terrorism suspects detained at Guantanamo Bay.
The Sixth Amendment to the Constitution guarantees the right to a speedy trial. But case backlogs result in people spending months behind bars before their day in court – particularly if they cannot afford bail. Often, public defenders say, their clients do not understand how the judicial system works.
As Judge Jackson told Congress last year: “One of the things that I do now is I take extra care to communicate with the defendants who come before me in the courtroom. I speak to them directly and not just to their lawyers; I use their names. I explain every stage of the proceeding because I want them to know what’s going on. …
“It’s only if people understand what they’ve done, why it’s wrong, and what will happen to them if they do it again that they can really start to rehabilitate. So, there is a direct line from my defender service to what I do on the bench, and I think it’s beneficial.”
For Wesley Bell, the prosecuting attorney for St. Louis County who swept into office three years ago promising broad criminal justice reforms, fixing an overburdened system by simply processing cases more efficiently isn’t enough. The objective “is healing and justice,” he recently told The New York Times.
A court system that has long depended on guilty verdicts and incarceration as a deterrent to crime has begun to discern indigent defendants as individuals who are more than the sum of their alleged transgressions. Public defenders like Ms. Jackson have long known this. Her nomination invites the rest of society to debate if their ideas are worth trying.