What judges do before they step on the court can influence how trials are conducted and ultimately shape the rights and freedoms of people across the country.
Public defenders, in particular, are undervalued in both state and federal courts. While 40% of state supreme court justices are former prosecutors, only 11% are former public defenders, a 4-to-1 ratio. This ratio is the same among federal judges.
Although professional background is not an accurate indicator of judicial outcomes, empirical evidence shows that it matters. Perhaps unsurprisingly, former defense attorneys are less likely than other judges to impose excessive prison sentences. And research suggests the impact extends beyond criminal cases. For example, in employment discrimination and wrongful termination cases, a former defense attorney is more likely to rule in favor of the plaintiff than a former prosecutor.
In short, judges who have spent their careers defending the status quo of privilege and power, whether by exercising state power in criminal prosecutions or protecting corporate profits at the expense of workers and consumers, are generally biased against historically marginalized and oppressed people who seek equal justice in our nation’s courts. And a judicial branch filled with people who have defended police misconduct and sent young black men to prison will bring that prosecutorial perspective to court.
A great example is Colorado. Colorado is a blue state, and all seven members of the Supreme Court are appointed by Democratic governors. However, five of the judges are former prosecutors. The other two were corporate lawyers. There are no former public defenders. A recent Colorado ruling that gives more power to police and prosecutors while upholding unnecessarily cruel criminal penalties suggests that this construct is important.
Just last week, a court ruled that a lower court judge wrongfully removed a prosecutor after he was heard saying, “I hope the next person to stab (the defendant) is a public defender.” The state Supreme Court said the lower court did not explain why the comments constituted “extreme circumstances” that undermined the fairness of the trial and therefore the standard for disqualification.
The ruling followed a series of decisions restricting people’s rights in the criminal legal system. Last year, a court upheld Colorado’s most severe criminal penalty for “felony murder”: life in prison without parole. The case involved Wayne Sellers, a man convicted of murder after his accomplice in a robbery shot and killed a person. Under the state’s felony murder statute at the time, Sellers was punished as if he had pulled the trigger. The Legislature subsequently lowered future prison terms for felony murder, but the Colorado Supreme Court upheld the previously imposed life sentence. I previously explained that this decision “sent a disturbing message that[the court]is indifferent to the rights of people sentenced to death behind bars.”
This year, the court issued an unfortunate decision interpreting the Fourth Amendment’s prohibition on unreasonable searches and seizures. Oscar Ganaway walked from his parked car to his motel room about 60 feet away, “looking down at the ground and not paying attention to his surroundings,” the opinion said. As he approached, he looked up and noticed that “seven or eight police officers were gathered at the motel,” all wearing “badges and plain clothes under tactical ballistic vests with the word ‘POLICE’ prominently emblazoned on them.” Ganaway appeared “shocked to see the police.” I asked him if I could pat him, and he said, “No problem.” Officers found methamphetamine in his pocket during questioning.
Mr. Ganaway then moved to suppress drugs as a result of illegal searches and seizures, arguing that no reasonable person in his position would be free to refuse to do so. The court rejected his argument, holding that no “seizure” occurred because the encounters were all consensual. “In my view, this was a single encounter in which Mr. Ganaway was stopped and searched by police without reasonable suspicion because he was in the wrong place at the wrong time,” Justice Maria Birkenkotter wrote, joined by Justice Richard Gabriel. “This was a seizure.”
Courts also lag behind in ensuring fairness in jury selection. In theory, excluding potential jurors based on race is unconstitutional, but the U.S. Supreme Court case has applied that rule. Batson vs. Kentucky — Racial stereotypes and implicit racial bias can influence jury selection. As a result, some state courts have imposed stricter standards through case law or rulemaking authority. For example, under the Washington Supreme Court’s rules, certain grounds for excluding jurors who reflect common stereotypes, such as a prospective juror’s prior contact with law enforcement or expression of distrust of law enforcement, are presumed to be unlawful discrimination.
Not so in Colorado. The state Supreme Court held a hearing on a similar rule in February 2023, but took no action for more than two years. In May of this year, more than two years after the hearing, Judge Carlos Samor sent a letter to the court’s Criminal Procedure Rules Advisory Committee rejecting most of the rules and instead declaring compliance with the following rules: Batson. “I am pleased to announce that we have reached an agreement,” he wrote, adding: Batson” This conclusion appears to ignore the fundamental principles of federalism. That is, state courts are free to impose stronger constitutional rights (or rules of procedure) than those applicable nationwide under federal law.
“We are extremely disappointed in the court’s letter,” said Emma McLean Riggs, senior staff attorney at the ACLU of Colorado. “Indeed, the court could and should have approved proposed rules that provide more protection for random jury selection than the federal standard.”
as Colorado politics He noted that the court’s decision regarding jury selection foreshadowed the outcome. For example, a court ruled last year that prosecutors can cite black jurors’ distrust of police as a “race-neutral” reason to remove jurors from duty.
This is not to say that all former prosecutors are biased judges and never able to address the lived experiences of those who have been prosecuted and punished by a legal system that is at best 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. It is unlikely that a judiciary full of judges who have seized power to further the machinery of mass incarceration is truly fair and impartial.
a version This article was first published in Newsletter behind the bencha publication by the State Law Research Initiative on state supreme courts, constitutions, and how they shape the criminal legal system.
Kyle C. Barry is director of the State Law Research Initiative.
