The Washington PostDemocracy Dies in Darkness

Appointing public defenders as judges affects their decisions. Our study shows how.

It is by far more common for judges to have experience as prosecutors. What if politicians changed that?

President Biden listens as his Supreme Court nominee, Judge Ketanji Brown Jackson, speaks in Washington on Feb. 25. (Bill O'Leary/The Washington Post)
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When President Biden recently named Judge Ketanji Brown Jackson to replace Justice Stephen G. Breyer on the U.S. Supreme Court, commentators naturally focused on the ways she would change the court’s demographics. If confirmed, Jackson would not only be the first Black woman named to the court in its history, but — as someone who has several years of experience representing indigent clients in appeals courts — she would also be the first former public defender named to the court in more than 30 years. By contrast, two current justices are former prosecutors — Samuel A. Alito Jr. and Sonia Sotomayor. A third, Breyer, was a special prosecutor in the Watergate investigation.

Does appointing public defenders make a difference? Answering this question in the context of the U.S. Supreme Court is difficult: There are so few justices and so few cases that it can be difficult to draw strong conclusions about the relationship between their professional backgrounds and their decision-making. And the justices themselves do not preside over criminal trials or hand down sentences.

But we can study judges in the lower-level federal courts and in state trial courts. They render millions of criminal sentences each year, which suggests that increasing the number of public defenders on the bench could possibly have a large impact.

We examine this question in a new study that analyzes millions of charges handled by federal district court judges. By comparing the sentencing outcomes of charges assigned to former public defenders to those assigned to judges without that experience, we were able to discover important differences in how judges approach sentencing.

Our data shows that former public defenders are less likely to hand down sentences involving any kind of incarceration, even taking into account the nature of the charge, the geographic location, and the month and year when the charge was recorded. We even took into account judges’ gender, age, race, and the identity of the president who appointed them. Charges assigned to public defenders are about two to three percentage points less likely to end in incarceration — a difference that adds up, considering the sheer number of federal sentences. For example, in our data, we have nearly three-quarters of a million sentences in a 10-year period, or roughly 70,000 to 75,000 sentences per year.

Public defenders are not only less likely to send people to prison — when they do so, they are also less likely to lock them away for a long time. Overall, our study shows that a charge that goes to trial will result in a sentence that is about 18 months shorter if it is assigned to a judge who is a former public defender. Again, this is the case even when taking into account a host of other factors, including the nature of the charge and various key background characteristics of the judge.

Eighteen months is a large difference, so what could be driving this? It turns out that judges who are public defenders are less likely — about 2-3 percent less likely — to give out sentences in excess of 30, 40 or even 50 years. This helps explain why we see such a large difference in incarceration lengths: Former public defenders are more hesitant to give out very lengthy sentences that are basically the equivalent of life sentences.

Importantly, our study shows that the effect of public defender experience exists regardless of whether we are looking at Republican or Democratic appointments. Of course, Democrats have appointed more public defenders (about 10 percent of their appointments) than have Republicans (3 percent), but our study shows the effect is about the same. Appointing more public defenders would result in fewer people going to prison and those who do go to prison serving shorter sentences.

What explains these patterns? Public defenders work closely with criminal defendants and their families, and they are intimately familiar with the toll incarceration takes on individuals and on communities. Some observers have pointed out that those with public defender experience are more likely to consider the structural and societal forces that lead to crime — such as poor housing or lack of jobs — which might make former public defenders more skeptical of sentences that are simply designed to be punitive.

Former public defenders are probably more sensitive to the importance of representation for all individuals. For example, when asked about her public defender experience in her confirmation testimony to the Court of Appeals for the District of Columbia, Jackson talked about how it reminded her of important constitutional rights — “that every person who is accused of criminal conduct by the government, regardless of wealth … is entitled to the assistance of counsel.”

Because of this, former public defenders bring a wealth of firsthand experience that advocates of criminal justice reform believe could help shift sentencing patterns. In other words, a hopeful view among some of these advocates is that appointing former public defenders will help scale back a criminal justice system that many think is unduly harsh and reliant on incarceration.

Biden has been receptive to these concerns and has appointed more former public defenders than any other president, with more than a third of his appointees having this kind of experience. Today, about 8 percent of federal trial judges have some sort of public defender experience, a share that has nearly doubled in the past 10 years.

The push to diversify the judiciary is not unusual, but to focus on professional experience is. Many former presidents have attempted to shape the nature of the courts by appointing judges whom they think will rule favorably. Other presidents have made specific campaign promises to appoint judges from certain groups. For example, President Jimmy Carter made huge inroads into diversifying the judiciary when he appointed record numbers of women (41) and people of color (57) onto the federal courts. And President Ronald Reagan famously promised to appoint the first female Supreme Court justice when he ran for president in 1980, and named Sandra Day O’Connor onto the bench in 1981. But to our knowledge, this is the first time a president has attempted to shape policy by making appointments purely on the basis of previous professional experience.

We think this strategy could work, with caveats. Using the figures from our study, for example, increasing the share of judges with public defender experience to about a third — the current share of judges with prosecutor experience is far more common — would lead to about 13,000 fewer federal incarceration sentences over a 10-year period. And in many cases of incarceration, the length of incarceration may be shorter, in some cases by an average of up to 20 months.

That said, judicial appointments have only so much effect on criminal justice policy writ large. Judges are basically the last step in the process. By the time a case arrives at the federal courts, the wheels have been set in motion, especially if a defendant enters into a plea agreement. Judges by themselves do not set the direction of criminal justice policy, nor do they guide society’s views on incarceration and punishment. Nonjudicial forces have greater potential to sway policy.

Judges can have real, concrete effects on people’s lives. In this case, judges have clear impacts on defendants, their families and their communities — and appointing many former public defenders would probably reduce very long, primarily punitive sentences. But our results also suggest that judicial appointments aren’t the most efficient way to enact lasting policy reform. And certainly, appointing judges is no substitute for policy reform from elected branches of government.

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