Making the case for a ‘Defender General’

School of Law's Epps co-authors new article proposing changes for criminal defendants at the Supreme Court

Supreme Court

The United States needs a “Defender General” — a public official charged with representing the collective interests of criminal defendants before the U.S. Supreme Court, argues a new article co-authored by a professor at Washington University in St. Louis School of Law.

“A defender general would correct a structural imbalance in criminal litigation at the Supreme Court,” said Daniel Epps, associate professor of law and an expert on criminal law and on the Supreme Court. “The problem is that the government, and particularly the U.S. Solicitor General’s office, can influence the law by playing the long game.”

Epps

Epps is co-author of “The Defender General,” a paper forthcoming in the University of Pennsylvania Law Review.

In it, he and co-author William Ortman of Wayne State University argue that in the battle to influence the Supreme Court’s rule-making, government interests have substantial structural advantages.

“Because the government cares about the bigger picture, rather than particular cases, it can decide which cases to appeal in order to present the most compelling facts for Supreme Court review,” Epps said. “Criminal defendants, by contrast, are always playing to win their own cases. We need a defender general who can think long-term, strategically, about how the law could better protect the interests of criminal defendants.”

If designed correctly, staffed with the right personnel, and given time to develop institutional credibility, Epps and Ortman wrote, “a new Office of the Defender General could level the playing field, making the Supreme Court a more effective regulator of criminal justice.

“A defender general wouldn’t guarantee victories for criminal defendants in every case, but it would make the process of criminal litigation in the Supreme Court less distorted,” Epps said. “Right now, the prosecution enjoys an unfair advantage that, we think, distorts the Supreme Court’s rule-making over time. The defender general would correct that imbalance.”

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