THE DEFENDER GENERAL.

• Author: Epps, Daniel

INTRODUCTION 1470 I. THE PROBLEM 1474 A. The Supreme Court as Criminal Justice Regulator 1474 B. Representation Distortion 1480 1. Unified Vision 1482 2. Quality of Advocacy 1493 3. Credibility 1498 C. Previous Proposals 1503 II. THE PROPOSAL 1506 A. The Proposal and Its Benefits 1506 1. The Defender General's Role in Certiorari 1507 2. The Defender General's Role on the Merits 1511 B. Implementation 1515 1. Selection and Accountability 1515 2. Design of the Office 1521 C. Potential Objections 1522 1. Institutional Alternatives 1522 2. Identifying Collective Interests 1525 3. Other Generals 1528 III. EXTENSIONS 1529 A. Modifying Ethical Rules 1529 B. State- and Lower-Court Involvement 1534 C. Alternative Solutions 1535 1. Leveling Down 1536 2. Regulatory Alternatives 1538 CONCLUSION 1539 INTRODUCTION

Among its many other roles, the Supreme Court of the United States serves as a preeminent regulator of the nation's criminal justice system. Through the process of constitutional adjudication, the Justices develop rules that govern criminal justice actors at all stages of the criminal process, from police officers to prison guards and everyone in between. Observers often defend the Court's aggressive role in criminal justice as a corrective to a political process that badly discounts the interests of criminal suspects and defendants. (1) Yet many fail to acknowledge that the Supreme Court is itself a forum in which defendants are at a significant structural disadvantage.

Quite simply, criminal litigation in the Supreme Court is not played on a level playing field. Rather, in the contest to influence the Court's criminal justice policymaking, the government has three weighty advantages. First, and most importantly, prosecutors can "play for the rules." They can advocate for the long-term objectives of the government as a unitary interest, even when that means sacrificing a particular conviction. Criminal defense lawyers, by contrast, must zealously defend the interests of their particular clients. They must play for the case, even to the point of making arguments that are contrary to the interests of criminal defendants collectively. Second, there is often a stark contrast in the quality of representation in criminal cases at the Court. While the prosecution is typically represented by experienced lawyers working within formal institutional structures designed to maximize Supreme Court expertise and influence, defendants often have lawyers with little or no Supreme Court experience. Two sitting Justices have publicly decried the problem, (2) and scholarly analyses support their assessments. (3) Third, government lawyers--especially lawyers from the Office of the Solicitor General in the Department of Justice--are repeat players before the Court. Beyond expertise, those frequent appearances give the Office credibility in the eyes of the Justices. Credibility is a valuable currency in all litigation, including criminal litigation in the Supreme Court.

Taken together, these advantages put a thumb on the scales in Supreme Court criminal litigation. Of course, that does not mean that defense interests lose in every case. Far from it: criminal defendants regularly win significant victories at the High Court, including several just in October Term 2018. (4) But the representational asymmetries likely distort the Court's decisionmaking over time, at least at the margins, making criminal justice policy friendlier to the government than it might otherwise be. As a result, the Supreme Court is a flawed regulator of criminal justice.

This Article offers a solution to this problem. We propose, theorize, and defend an Office of the Defender General that would be charged with advocating for the interests of criminal defendants as a class before the Supreme Court. If designed appropriately, staffed with the right personnel, and given time to develop institutional credibility, such an office could significantly level the playing field. Creating a Defender General would be a relatively straightforward and low-cost reform that would generate significant benefits for the entire criminal justice system.

The Article develops that argument in three parts. Part I explains the problems with the Court's status quo decisionmaking process in criminal cases. Section I.A begins by situating the Court's role in criminal justice policymaking. It explains that because other institutions lack the willingness or ability to closely supervise the criminal justice system, the Court acts as a de facto regulator through case-by-case adjudication. Section I.B then fully describes the three asymmetries noted above--quality of advocacy, lawyer credibility, and, most critically, the government's "unified vision," which permits it to play the long game before the Court. Section I.B also offers examples of how these asymmetries influence the development of legal doctrine, at least at the margins. Lastly, Section I.C discusses previous attempts to deal with the problem of asymmetrical Supreme Court representation in criminal cases. We pay particular attention to two--legislation offered by Senator Cory Booker in 2016, (5) and a proposal by Professor Andrew Crespo. (6) While both would remediate some of the disparities in Supreme Court criminal litigation, neither tackles them all.

We lay out our proposal in Part II. Section II.A describes the projected operations of the Office of the Defender General. We envision that the Defender General would participate in Supreme Court criminal litigation at both the certiorari and the merits stages. In cases where the interests of a particular defendant were aligned with the interests of defendants collectively, the Defender General could serve as defense counsel or (where a defendant has a lawyer he wants to keep) as amicus curiae in support of the defendant. But in other cases, where the interests diverged, the Defender General might decline to participate, argue that the Court should deny certiorari in a particular case, or even file a merits brief arguing against the positions taken by a particular defendant. But whether the Defender General argued for or against the defendant in a particular case, her involvement would ameliorate the asymmetries endemic in Supreme Court criminal litigation today. That's because the interests of defendants collectively would be represented by a team of experienced, credible attorneys thinking about how to move doctrine in defendant-friendly directions over the long run of cases.

Section II.B goes on to consider how the Office would be designed. The most pressing questions involve who would serve as the head of the Office--the Defender General herself--and how that person would be selected. Our hope is that the Office would, by virtue of its role in Supreme Court litigation, bear considerable prestige, and thus be an attractive position for both experienced criminal defense attorneys and talented Supreme Court litigators. The "who selects" question is more complicated. We propose that the Defender General be selected by--and accountable to--a board whose members represent various constituencies within the criminal defense community. Section II.B also briefly considers questions about the design of the Office and its staffing more generally.

Section II.C responds to likely objections. It first engages with the objection that existing institutions either do or could fulfill the mission that we envision for the Defender General. While existing institutions do valuable work in advocating on behalf of criminal defendants in the Supreme Court, none can counteract the government's advantages as effectively as a Defender General would. Next, Section II.C entertains the objection that the collective interests of defendants would be impossible for the Defender General to identify. While we acknowledge that ascertaining the collective interests of heterogeneous defendants would, in some cases, involve difficult tradeoffs, we believe that a Defender General would be able to meet the challenge. Finally, Section II.C considers--and ultimately adopts as a friendly amendment--the objection that our proposal would, if adopted, lead to a proliferation of Supreme Court "Generals" for various corners of the law.

Part III considers possible extensions of the proposal, as well as some additional implications. In Section III.A, we imagine how the proposal might work in a world with radically different ethical rules. What if the Defender General were the exclusive Supreme Court lawyer for criminal defendants, with the power to concede a case against a defendant's wishes? The Solicitor General possesses that authority in almost all litigation in which the United States is a party. We ultimately conclude that such a regime would be normatively unacceptable in the defense context, but examining the possibility helps draw into focus the problem of asymmetrical ethical rules in criminal litigation. In Section III.B, we briefly consider various possibilities for how the Defender General's Office could be involved in the criminal process beyond the Supreme Court--in lower appellate courts, trial courts, and state courts. These possibilities present various difficulties and tradeoffs. Finally, Part III.C considers potential alternatives to the proposal we have identified. Our proposal represents a kind of "leveling up," giving criminal defendants as a class the benefits enjoyed by the government. But an alternative would be a form of leveling down: what if the government were required to litigate cases more like individual criminal defendants? As one way to implement that vision, we imagine shifting choices about Supreme Court litigation from the Solicitor General's Office to line-level federal prosecutors. We ultimately reject that proposal for several reasons, but considering it helps bring the problem we are trying to solve into starker relief. We also briefly consider regulatory alternatives other...