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What Judge Ketanji Brown Jackson's history as a public defender means for the Supreme Court

WASHINGTON, DC - APRIL 28: Ketanji Brown Jackson, nominated to be a U.S. Circuit Judge for the District of Columbia Circuit, testifies before a Senate Judiciary Committee hearing on pending judicial nominations on Capitol Hill, April 28, 2021 in Washington, DC. The committee is holding the hearing on pending judicial nominations. (Photo by Kevin Lamarque-Pool/Getty Images)
WASHINGTON, DC - APRIL 28: Ketanji Brown Jackson, nominated to be a U.S. Circuit Judge for the District of Columbia Circuit, testifies before a Senate Judiciary Committee hearing on pending judicial nominations on Capitol Hill, April 28, 2021 in Washington, DC. The committee is holding the hearing on pending judicial nominations. (Photo by Kevin Lamarque-Pool/Getty Images)

When is the last time a former public defender became a justice on the Supreme Court of the United States?

Answer: Never.

“We have valued only certain types of experience going to the bench, which was prosecutorial experience, big firm experience, that somehow they were more judge-like,” Nancy Gertner, senior lecturer on law at Harvard Law School, says.

“They could move to neutral. And public defenders could not. And that’s just not true.”

But should she be confirmed, Judge Ketanji Brown Jackson would be the first former public defender on a bench full of former prosecutors and corporate lawyers.

And that has some senators worried.

Today, On Point: As Judge Ketanji Brown Jackson’s Supreme Court confirmation hearings get under way, we ask what difference a former public defender would make on the highest court in the land.

Guests

Nancy Gertner, senior lecturer on law at Harvard Law School. Former U.S. federal judge. (@ngertner)

Benjamin Barton, professor of law at the University of Tennessee College of Law. Author of several books, including The Credentialed Court: Inside the Cloistered, Elite World of American Justice. (@benbartonutlaw)

Also Featured

Maya Sen, political scientist and professor of public policy at Harvard University’s John F. Kennedy School of Government. Co-author of the paper How Judges’ Professional Experience Impacts Case Outcomes: An Examination of Public Defenders and Criminal Sentencing. (@maya_sen)

Interview Highlights: What Judge Ketanji Brown Jackson’s History As A Public Defender Could Mean For The Supreme Court

MEGHNA CHAKRABARTI: I want to just shift the focus a little bit to one layer below the Supreme Court. And talk about public defenders that have served or are serving on the lower courts in the United States. And what we can glean from their experience in the data from their rulings on lower courts. So we reached out to Maya Sen. She’s a political scientist at Harvard University’s John F. Kennedy School of Government. She recently co-authored a paper titled How Judges Professional Experience Impacts Case Outcomes, An Examination of Public Defenders in Criminal Sentencing.

Now in the study, Professor Sen examined about a million federal charges from 2010 to 2019 that resulted in a sentence.

MAYA SEN: We wanted to see whether the likelihood of incarceration would change if a charge or case was assigned to a former public defender. And what we found is that the answer to that is yes. So the charge is assigned to someone. So a judge who is a former public defender, the probability that the charge would result in the sentence involving incarceration decreased by about 2% to 3% percentage points.

CHAKRABARTI: So 2% to 3% may not seem like a lot, but Professor Sen says that small percentage truly scales up when you consider how many sentences the federal court processes.

SEN: We actually walk through this exercise in a paper where we actually calculate if there were more public defenders appointed, they came up to be about 30% of judges, which is about the percentage of judges who are former prosecutors. Then you would actually have something on the order, I think 15,000 fewer criminal incarcerations over a 10-year period.

CHAKRABARTI: The biggest difference that a judge with a public defender experience could make, Professor Sen says, comes in cases that do indeed end up with those guilty verdicts.

SEN: When we actually look at these verdict trials where there’s a verdict at the end, we find that being assigned to a public defender leads to incarceration less. That’s about 18 months shorter on average.

CHAKRABARTI: So what difference does Professor Sen think that experience could make then on the Supreme Court?

SEN: If I had to guess someone like Judge Jackson, I think, would be receptive to kinds of criminal procedure claims made by defendants that speak to this right of defendants to have access to high quality counsel. Now I also think based on what we found, in our analysis, she might be also skeptical of sentences that set out to be primarily punitive, like these extremely long, extremely harsh sentences. We see public defenders in our data, at least being skeptical of those.

This article was originally published on WBUR.org.

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