It’s no secret that there’s a crisis in the lower rungs of America’s criminal defense system. Public defenders, overloaded with cases, struggle to offer even bare-bones defense for defendants who can’t afford their own lawyers.
But for the first time, research now shows that the scales of justice are tilted against poor defendants all the way to the Supreme Court, with as many as two-thirds of them represented by lawyers relatively inexperienced in the ways of the nation’s highest court.
Efforts to close this “advocacy gap” at the very top are already under way, and could have an outsize impact across all levels of the system.
Putting more skilled and experienced criminal defense attorneys in front of the justices would give criminal defendants a fairer trial. It could also strengthen the body of legal precedents established by the Supreme Court and offer the justices a fuller view of the issues involved.
“Case in and case out, the category of litigant who is not getting great representation at the Supreme Court are criminal defendants,” said Justice Elena Kagan in 2014. Having lawyers experienced in arguing cases at the Supreme Court level would be an “enormous help to the system,” she added.
Last month, Sen. Cory Booker (D) of New Jersey, one of only two African Americans in the Senate, proposed legislation that would create an office of attorneys dedicated to Supreme Court advocacy. While there already exists a Supreme Court Advocacy Program, under which a private law firm provides legal support for federal defenders, Senator Booker's proposed office would be more independent from the judiciary – giving it more credibility.
Measuring the 'advocacy gap'
A recent study was able to quantify the advocacy gap between criminal defense lawyers and the rest of the Supreme Court bar, which many regular court watchers have long suspected. The study – published by Harvard Law Prof. Andrew Manuel Crespo – examined 10 years of Supreme Court arguments ending in June 2015.
In two-thirds of the cases, they had argued fewer than two cases before the high court.
In many instances, these lawyers were going head-to-head with lawyers from the Office of the Solicitor General, which represents the federal government at the court. The study found that over the 10-year period, a lawyer from the Solicitor General’s office had on average made about 25 previous arguments to the court, compared with only 5.3 for the criminal defense lawyers they faced.
On top of this, the recent evolution of a small, elite group of specialist Supreme Court lawyers make relatively inexperienced lawyers look even more out of place, says Steven Schwinn, a professor at the John Marshall Law School.
“The justices have come to expect a level of quality in Supreme Court advocacy that they, by and large, get from attorneys who regularly practice in the Supreme Court,” he adds. “I’ve got to think that if an attorney is coming to court without the experience the court expects, it’s ultimately doing his or her client a disservice.”
And with the Supreme Court making decisions that set precedent for the whole country, the rise of this advocacy gap has even broader consequences, according to Professor Crespo.
“You’re getting some of the best lawyering in the country, but only on the side of one half of the question,” he told the New York Times. “A court that’s going to decide these important questions will benefit from hearing quality lawyering on both sides of the issue.”
Seven minutes per case
The criminal defense lawyers share part of the blame for this experience gap. Many of them are reluctant to hand over the case – and the spotlight – to a Supreme Court specialist.
One could argue that part of the reason for that reluctance is that there are few specialists for criminal defense lawyers to turn to. (Crespo identified one, writing that Jeffrey Fisher of Stanford Law School “is the expert Supreme Court criminal defense bar.”)
It is this vacuum that Booker is trying to fill with his Gideon Act, introduced in the Senate last month.
Modeled on the Solicitor General’s office, his proposed Supreme Court defender office would, among other things, provide oral arguments in criminal cases before the high court, draft “friend of the court” briefs relating to federal criminal case law, train appellate lawyers on Supreme Court advocacy, and allow the office to argue cases in state appellate courts.
How much such an office would help criminal defense attorneys at the local level – especially embattled public defenders – is another question.
It wouldn't help the caseload. In 2013, New Orleans public defenders spent an average of seven minutes on each case, according to a Mother Jones analysis, and the office has been sued this year for failing to fulfill their constitutional obligations.
But a high court defender office could help set more legal precedents and give justices a better understanding of the issues that indigent defendants face.
When public defenders take a case, even if it might raise a large question that could interest the Supreme Court, “it is very difficult to think about framing those arguments and getting them up to the Supreme Court,” says Derwyn Bunton, chief defender at Orleans Public Defenders. "We’re more worried about getting the case resolved, helping the client, and getting to the next 100 and 200 files that are waiting.”
High rejection rate
With fewer lawyers appealing cases up to the high court, and fewer elite specialists available to help pull them up, the result is that the court agrees to hear less than 0.2 percent of petitions filed by clients who can’t afford the normal costs of their lawsuit or defense. That compares with more than 4 percent for those with paid representation, according to a 10-year average compiled in 2013.
A Supreme Court defender office could help more cases reach the court in the first place, as well as making the justices more aware of the challenges facing the criminal defense bar around the country.
“An office with skilled litigators at the Supreme Court level has the potential to put more of [those issues] in front of the Supreme Court so more action can be taken,” says Mr. Bunton.
And some justices appear to be itching to hear these kinds of arguments, says Ames Grawert, counsel at the Brennan Center for Justice. Just a few months ago, Justice Sonia Sotomayor issued a fiery dissent about unlawful police stops, railing against the invasiveness of such stops and their disproportionate use against people of color.
“If you had an office of attorneys who knew that and could work on that day-in-day-out for entire terms of the court, it may make it easier to advance that perspective,” adds Mr. Grawert.
Furthermore, reforming criminal defense at the Supreme Court level may not be outside the realm of political possibility.
“Despite the very partisan climate we live in now, I wouldn’t count out criminal justice reform bills making it to the floor,” says Grawert.
“If you have a bill [like the Gideon Act] that just recognizes the need for advocacy, and at a fairly low cost,” he adds, “I could see that being easier to get people to agree to.”