The Defender General

63 Pages Posted: 16 Jan 2020

See all articles by Daniel Epps

Daniel Epps

Washington University in St. Louis - School of Law

William Ortman

Wayne State University School of Law

Date Written: January 8, 2020

Abstract

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.

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.

Keywords: Supreme Court, criminal law, criminal procedure, criminal justice, public defense, appellate litigation, legal ethics

Suggested Citation

Epps, Daniel and Ortman, William, The Defender General (January 8, 2020). University of Pennsylvania Law Review, Forthcoming. Available at SSRN: https://ssrn.com/abstract=3516181 or http://dx.doi.org/10.2139/ssrn.3516181

Daniel Epps (Contact Author)

Washington University in St. Louis - School of Law ( email )

Anheuser-Busch Hall 573
1 Brookings Drive, Campus Box 1120
St. Louis, MO 63130
United States
(314) 935-3532 (Phone)

William Ortman

Wayne State University School of Law ( email )

471 Palmer
Detroit, MI 48202
United States

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