By Orion de Nevers | 3L at Georgetown University Law Center
This summer, the Senate confirmed Cory Wilson for a seat on the U.S Court of Appeals for the Fifth Circuit, approving President Trump’s 200th appointment to the federal bench. The composition of President Trump’s record-setting number of judicial appointments has been widely criticized for its overwhelmingly white-male skew. But another, quieter, source of troubling homogeneity has also emerged: President Trump is loading the bench with former prosecutors.
The Trump Administration has taken pride in its bipartisan criminal justice efforts. In 2018, President Trump signed the First Step Act, a criminal justice reform bill that reduced the sentences of thousands of federal prisoners, most of whom were convicted of low-level drug offenses. The First Step Act passed the Senate with 87 votes—an unheard-of accomplishment in today’s political landscape. The Trump campaign even touted the First Step Act’s accomplishments in an emotional Super Bowl ad.
But when it comes to judicial appointees, President Trump’s commitment to criminal justice reform is nowhere to be found. The President’s 200 successful nominations include 74 former prosecutors—and only 3 former public defenders.
Presidents have long-favored tapping prosecutors for positions in the federal judiciary. For example, over 40 percent of President Obama’s judicial appointments were former prosecutors, whereas less than 15 percent were former public defenders. As a result, criminal defendants who appear in front of Obama-appointees are nearly three times as likely to draw a former prosecutor as they are a former public defender. For criminal defendants appearing before Trump appointees, though, those odds jump to twenty-five times as likely.
By doubling down on the status quo of prosecutors as judges, the Trump Administration is embracing a formula that has ushered in an unprecedented era of mass incarceration in the United States. The US now incarcerates over 2.2 million people—more than any other country in the world. Although the system is designed to overincarcerate from the ground up, overzealous prosecutors push that system to its limits. Rewarding this behavior with judicial appointments is no way to incentivize change. And putting the fates of criminal defendants in the hands of judges who are former prosecutors is not likely to engender a decarceral shift. Despite their neutral mandate, judges, like the rest of us, are influenced in their decision-making by their personal characteristics. Indeed, some studies show former prosecutors are more likely to rule against criminal defendants than their peers. Others indicate that, although judges purport to base sentencing decisions on a variety of factors, prosecutorial recommendations are the only reliable predictor of sentencing outcomes. Together, this creates a system where prosecutors are rewarded for securing harsh sentences, and judges stand ready to help them do it.
This needs to change. It is well documented that diversity of both personal characteristics and experience drives innovation. Adding former public defenders to the bench would provide a new perspective the justice system sorely needs. Recent elections of former public defenders as district attorneys show what can happen when former public defenders fill roles traditionally held by career prosecutors. In San Francisco, former-public-defender turned district attorney Chesa Boudin has ended cash bail in all criminal prosecutions and reduced the city’s jail population by nearly 50 percent since being sworn-in in January. In Philadelphia, district attorney Larry Krasner, another former public defender, reduced Philadelphia’s jail population by 30 percent in his first year on the job. Boudin and Krasner have by no means solved the criminal justice problems in their cities, but they have undoubtedly brought important new perspectives to law enforcement roles typically reserved for prosecutors.
Yet voices like theirs are missing from the federal judiciary. Consider the makeup of the Federal District Court for the Southern District of New York, widely considered the most influential federal trial court in the nation. Sixty percent of the court’s active judges are former prosecutors. Meanwhile, only two of the court’s 24 sitting judges have experience in public defense. In this kind of environment, new ideas about criminal justice are unlikely to gain traction. With this dynamic playing out in courtrooms across the country, it is no surprise that criminal justice reform efforts seem to stall at the courthouse gates.
As the 2020 presidential campaign coalesces around issues of race and policing, criminal justice reform will undoubtedly return to center stage. Both candidates have pledged to pursue reform. But when it comes to judicial appointments, both have participated in administrations that maintained, or exacerbated, the status quo. When the candidates unveil their newest pledges for reform, achieving parity in the appointment of former prosecutors and former public defenders ought to be one of them.
Orion de Nevers is a third-year law student at Georgetown University Law Center where he is a member of the Juvenile Justice Clinic and the Georgetown Law Journal. He has worked in the Department of Justice’s Civil Rights Division, Special Litigation Section, the office of the federal government responsible for investigating police misconduct and at the Texas Defender Service, a capital defense nonprofit. His writing appears in Slate and the National Law Journal.