We Need More Public Defenders on the Bench 

What judges did before they took the bench can impact how they rule — and, ultimately, can shape the rights and liberties of people across the country.

Public defenders, in particular, are underrepresented on both the state and federal bench. While forty percent of state supreme court justices are former prosecutors, only 11 percent are former public defenders — a ratio of 4 to 1. The ratio is identical among federal judges.

Professional background is an imprecise proxy for judicial outcomes, but empirical evidence shows that it matters. Perhaps unsurprisingly, former defenders are less likely than other judges to impose excessive prison sentences. And studies suggest the impacts extend beyond criminal cases: Former defenders are more likely than former prosecutors to rule in favor of plaintiffs in employment discrimination or wrongful termination cases, for example.

In short, judges who spent their careers protecting the status quo of privilege and power — whether by wielding state power in criminal prosecutions or protecting corporate interests at the expense of workers and consumers — are, on the whole, skewed against historically marginalized or oppressed people who seek equal justice in our courts. And a judiciary full of people who previously defended police misconduct or sent young Black men to prison will bring that prosecution perspective into the courtroom.

Case in point: Colorado. Colorado is a blue state with a seven-member supreme court all appointed by Democratic governors. But five justices are former prosecutors. The other two were corporate lawyers. None is a former public defender. Recent Colorado decisions granting more power to police and prosecutors while upholding needlessly cruel criminal punishment suggest this makeup matters.

Just last week, the court ruled that a lower court judge improperly removed a prosecutor from a murder case after he was overheard saying he hoped “the next people [the defendant] stabs are public defenders.” The state supreme court said the lower court had not explained why the comments “constituted an extreme circumstance” that undermined the fairness of the trial — the standard for disqualification.

The ruling comes on the heels of a series of decisions curbing the rights of people in the criminal legal system. Last year, the court upheld life-without-parole sentences — Colorado’s most severe criminal penalty — for “felony murder.” That case involved Wayne Sellers, a man convicted of murder because his accomplice during a robbery shot and killed someone; under the state’s then-felony murder doctrine, Sellers was punished as though he pulled the trigger. The legislature has since reduced felony murder’s possible prison terms going forward, but the Colorado Supreme Court allowed previously imposed life terms to stand. I previously explained that the decision “sent a disturbing message that [the court] is indifferent to the rights of people consigned to death behind bars.” 

This year, the court issued a disappointing ruling interpreting the Fourth Amendment’s prohibition on unreasonable searches and seizures. According to the opinion, Oscar Ganaway was walking from his parked car to his motel room about 60 feet away, “looking down at the ground and not paying attention to his surroundings.” As he approached, he looked up and noticed “a group of seven or eight officers gathered at the motel,” all wearing “badges and plain clothes under tactical, ballistic vests with conspicuous lettering that read ‘POLICE.’” Ganaway looked “shocked to see the police.” When asked if they could pat him down, he replied, “no problem.” During the pat down, officers found methamphetamine in his pocket.

Ganaway later moved to suppress the drugs as the product of an illegal search and seizure, arguing that no reasonable person in his position would have felt free to refuse the pat down. The court rejected his argument, holding that the entire encounter was consensual and therefore no “seizure” occurred. Two justices dissented: “In my view, this was a single encounter in which Ganaway was stopped and searched by the police without reasonable suspicion because he was in the wrong place at the wrong time,” Justice Maria Berkenkotter wrote, joined by Justice Richard Gabriel. “This was a seizure.”

The court also lags behind when it comes to ensuring fairness in jury selection. While it is theoretically unconstitutional to exclude potential jurors based on race, the U.S. Supreme Court case implementing that rule — Batson v. Kentucky — is largely toothless, allowing racial stereotypes and implicit racial bias to infect jury selection. As a result, some state courts have imposed stricter standards, either through case law or their rulemaking powers. Under a Washington Supreme Court rule, for example, certain reasons for excluding jurors that echo common stereotypes are presumed to be unlawful discrimination, such as that the prospective juror had prior contact with or expressed distrust of law enforcement.

Not so in Colorado. The state supreme court held a public hearing on a similar rule in February 2023, but then did nothing for over two years. This past May — more than two years after the hearing — Justice Carlos Samour sent a letter to the court’s Advisory Committee on Rules of Criminal Procedure that largely rejected the rule and instead proclaimed adherence to Batson. “I’m delighted to inform you that we were able to reach consensus,” he wrote, before adding that “we feel duty bound to remain faithful to Batson.” That conclusion seems to ignore a basic tenet of federalism: State courts are free to impose stronger constitutional rights (or rules of procedure) than what applies nationwide in federal law.

“We are deeply disappointed by the court’s letter,” said Emma Mclean-Riggs, senior staff attorney with the ACLU of Colorado. “The court can, in fact, approve proposed rules that are more protective of nondiscriminatory jury selection than the federal standard — and it should have done so.”

As Colorado Politics noted, the court’s rulings on jury selection had foreshadowed its conclusion. Last year, for example, the court held that prosecutors could cite Black jurors’ distrust of police as a “race neutral” to strike them from service.

None of this is to say that all former prosecutors are biased judges who can never grapple with the lived experiences of those prosecuted and punished by a legal system that is, by any measure, unequal and discriminatory. One need only look to Justice Sonia Sotomayor, a former New York City prosecutor who has emerged as the Supreme Court’s most progressive voice on criminal justice since at least the Warren Court. But Sotomayor is the exception that proves the rule. A judiciary packed with judges who rose to power driving the machinery of mass incarceration is unlikely to be truly fair and impartial.

A version of this article first appeared in the Behind The Bench Newsletter, publication by the State Law Research Initiative about state supreme courts, constitutions, and how they shape criminal legal systems. 

Kyle C. Barry is the director of the State Law Research Initiative.