I chair an alliance of individuals and organizations that calls for a “defender general” to address the apartheid that is our U.S. criminal justice system.
Partial measures, such as the recently failed police reform legislation, nibble around the edges of our criminal justice apartheid, and appear merely to conflate roadblocks and multiply dissent on issues that, considered in a larger framework of management, would less likely divide and conquer us. While at least one governor intends to build more prisons, and numerous states have too few public defenders to meet demand, the elephant in America’s living room goes ignored.
Our world-leading incarceration numbers with their deleterious impact on people of color, including the execution of innocent people, taint the U.S. as a human rights violator. Our institutionalized apartheid requires a systematic approach.
As a former public defender, law professor, dean and current criminal defense attorney (and the first woman to defend a death penalty case in the U.S.), I have a long history of facing these injustices. And in these times of reckoning with America’s original sin of slavery and racist policies, and with police misconduct and the deaths of so many African Americans and people of color at the hands of the police, a lot of discussions have focused on, “What can we do?”
Well, one thing we could do is to form an Office of the Defender General of the United States, an office with the same level of importance as the attorney general and solicitor general’s offices, to be at the table when policy issues affecting criminal justice and policing are being made.
That office would not be held by someone who represents law enforcement, or corporate America, but rather someone who advocates for the individual who is neither powerful nor popular. At a time when nearly every political constituency agrees that we have overincarcerated and over-criminalized our country, that Black lives do matter, and where there is a full-throated cry for change, this is something we can and should do.
The only lawyer who is enshrined in the United States Constitution is referenced in the Sixth Amendment: “In all criminal prosecutions, the accused shall enjoy the right to … the assistance of counsel for his defence.” Yet, the defense is not, and has not been, a part of policy decisions regarding criminal justice matters.
A true defender would have been able to see what the draconian results of the so-called war on drugs would be, or the misuse of the Racketeer Influenced and Corrupt Organizations Act, not to go after organized crime, but rather neighborhood “gangs” that maybe cover three city blocks.
No one believed that there was a problem with how police speak to and stop African Americans until there was video, and were there no video of the George Floyd murder, would anything have happened to his killer? The answer is a resounding no. Where can the poor and disenfranchised go with their complaints?
We cannot waste this opportunity to do something real and lasting to effect change. Here are some leading issues for an independent defender general:
  • Consult with Congress on criminal justice legislation. For example, in 1994 criminal defense lawyers would have accurately predicted the overincarceration of people of color and its toxic offspring: the incarceration and execution of innocent people. Currently, the exoneration of more than 2,800 people represents 25,600 years of lost freedom.
  • Equitize resources for public defense. While public defense is a constitutional mandate, the federal government has never funded, overseen or worked to improve public defense on any significant scale, leaving state and local governments to cobble together funding and services. Public defenders with too many cases and little training jettison core legal tasks — investigation, legal research, client communication and motion practice. Tellingly, half of Americans have seen a family member incarcerated with 3 out of 4 incarcerated Americans relying on a public defense system that has no central agency modeling best practices, informing lawmakers or disseminating prescient information.
Because due process is a right guaranteed by the U.S. Constitution, implementing an Office of the Defender General of the United States is a crucial step in ensuring that this country upholds the promises it made to its constituency almost 250 years ago.