The United States Needs an Office of the Defender General.
The Biden Administration has a chance to better the lives of millions of Americans by creating an independent Office of the Defender General and reforming American public defense.
Public defense plays an outsized role in American life. Half of Americans have seen a family member incarcerated, and 3 in 4 incarcerated Americans rely on public defense.
Public defense is a federal mandate. Yet 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. The fallout has been predictable and tragic.
For half a century, attorneys with too many cases and too little training have jettisoned core legal tasks—investigation, legal research, client communication, motion practice—in violation of ethical and constitutional duties. Divorced from the maxims on our marble monuments, public defense has become marked by meet-and-pleads, wrongful convictions, and mass incarceration.
Through funding, advocacy, and policy, the Office of the Defender General can reform American public defense, better the lives of millions, and help cement the legacy of our first public defender president. The Office of the Defender General is ethically desirable, financially feasible, and politically achievable.
The Defender General could advance Funding, Advocacy, and Policy.
By any measure—attorney pay, per capita funding, parity with prosecutors—public defense funding is insufficient. But the federal government need not wholly swap our paltry pecuniary patchwork with federal dollars to have an impact.
Vice President Harris’s Fair and Just Defense Act (FJDA) would appropriate $250 million annually for public defense, conditioned on quality metrics and data collection. FJDA would both increase public defense investment and drive quality representation. The Office of the Defender General would be ideally suited to deploy FJDA funds and oversee progress:
● Incentivizing quality public defense through funding representation.
● Creating quality metrics.
● Collecting data.
The Defender General’s Funding Function could be modeled on the statewide public defense commissions in states like New York, Michigan, and Texas.
Advocacy is central to advancing American public defense. The Defender General’s Advocacy Function could not only weigh in on cases in the United States Supreme Court, it could also litigate Sixth Amendment violations by state and local actors:
● Represent defense interests in the United States Supreme Court.
● Litigate Sixth Amendment violations by state and local actors.
● Monitor compliance with consent decrees.
The Defender General’s Advocacy Function could be modeled in part on the Solicitor General, and in part on the Civil Rights Division’s enforcement mechanisms.
Public defense has long suffered from a lack of clarity and focus. Unlike the prosecution function, the defense function has no central agency modeling best practices, informing lawmakers, or disseminating data. The Office of the Defender General could fulfill this role:
● Promoting standards.
● Representing public defense at meetings and hearings.
● Creating a clearinghouse for public defense data.
● Supporting training, standards, and innovations.
● Presentations and publications.
The Defender General’s Policy Function could be modeled in part on the Office of Justice Programs, including the Bureau of Justice Assistance, the Bureau of Justice Statistics, and the Office of Juvenile Justice and Delinquency Prevention.