The Confirmation of Ketanji Brown Jackson Is a Major Victory for the Criminal Justice Reform Movement

To anyone who recognizes the immense responsibility that rests on the collective shoulders of America’s criminal defense attorneys, Senator Ted Cruz’s allegation that our nation’s public defenders care a bit too much about their clients might sound more than a little bizarre. The unfortunate reality, however, is that America has never really taken seriously its constitutional duty to ensure that every defendant in its care receives the due process to which they are entitled. Cruz’s attitude reflects that reality, and it’s why he so grossly misunderstands the passion that public defenders bring to their profession.

If Senator Cruz is truly concerned with preserving the integrity of the criminal justice system, he ought to spend a little less time worrying about America’s overworked, underpaid public defenders and spend a little more time worrying about the opportunistic, self-serving prosecutors who have brought shame to courtrooms all across the country.

For generations, our justice system has been infested with rogue prosecutors who, for the sake of advancing their own careers, have robbed countless innocent people of their freedom. In 2020, the National Registry of Exonerations released a damning study that showcased the link between official misconduct and wrongful convictions. It found that prosecutorial misconduct had played a role in 30% of the 2,400 wrongful convictions on which the study was based.

Disappointingly, rogue prosecutors rarely face any meaningful consequences for their criminality. A survey conducted by the Innocence Project and Veritas Initiative found 660 cases of prosecutorial misconduct in five different states between 2004 and 2008, yet only one of the prosecutors involved in those cases received any discipline at all.

Similarly, in 2010, a USA Today investigation into 201 cases of misconduct involving federal prosecutors revealed that only one prosecutor had been “barred even temporarily from practicing law.” Citing privacy concerns, the Justice Department refused to reveal that prosecutor’s name.

One potential explanation for why prosecutorial misconduct is such a pervasive and seemingly unsolvable problem is that criminal defense attorneys haven’t had a voice on the Supreme Court in over 30 years. The last justice to have worked as a criminal defense attorney was Justice Thurgood Marshall, who retired in 1991.

Prosecutors, on the other hand, haven’t encountered the same professional barriers that have kept criminal defense attorneys off the Supreme Court for the past three decades. Today, the Court counts three former prosecutors among its ranks — Justices Sonia Sotomayor, Neil Gorsuch, and Samuel Alito.

The Supreme Court has long needed the perspective and insights that only a justice with experience as a public defender can provide. It needs someone who is intimately familiar with the dynamics of a criminal justice system that has stacked the deck against marginalized defendants; someone who has both the will and the expertise to identify the institutional defects that have allowed scores of rogue prosecutors to escape accountability for their ethical bankruptcy; and someone who understands that just outcomes aren’t possible without just processes, processes that are designed to restrain the worst impulses of the judges, prosecutors, and law enforcement officials with whom we’ve entrusted tremendous institutional power and authority.

President Biden finally found that person. Her name is Ketanji Brown Jackson, and her historic confirmation to the Supreme Court is an unmitigated victory for every American who supports a more equitable, impartial, and fair-minded criminal justice system.

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