And while no judge (or lawyer, or court) will single-handedly usher in massive social change in our country, there is every reason to be hopeful. Jackson’s experience as a public defender is among them, and not just because he suggests empathy for criminal defendants or an interest in due process, which have become politicized topics of conversation. Public defenders are the only actors in the criminal legal system who stand by and work on behalf of its goals; they see that system with a clarity that others who work within it simply don’t.
I spent almost 15 years as a public defender, representing hundreds of people, nearly all of them black or brown, criminalized and prosecuted by our legal system. My experiences were similar to those of many other public defenders in our country. I met people immediately after their arrests, in crowded intake cells deep in the courthouse. I stood next to them, arguing on their behalf before the judges. I explained to family and friends what all the language in the legal code meant about what was happening to their loved one, where they could be taken, in what clothes, sometimes without the necessary medications.
I spent long nights poring over the discovery boxes, preparing for court hearings. I saw cops lie, prosecutors coerce witnesses and withhold exculpatory evidence, and judges admit shoddy forensic evidence. I argued with jurors about why they should doubt the police, doubt the government, and acquit my client.
And I sat with my clients through emotional, often tearful sentencing hearings, in which all the pain and loss that the criminal legal system inflicts, on everyone, on all sides of the room, poured out, seeking a place to go. , since our system provides no meaningful output for any of that.
Last weekend, Senator Ted Cruz tried to smear public defenders by suggesting that they are flawed by having empathy for the people they represent. He went on Fox News and said, “His heart goes out to criminal defendants,” before adding, “Public defenders often have a natural bent toward the criminal.”
Jackson has almost certainly witnessed some of the same things I did as a public defender, and while I cannot speak for our newly confirmed judge, or any other public defender, my heart certainly went out, fiercely, with the people who I represented. .
Using that as a slur reflects, perhaps, Cruz’s own shortcomings; public defenders generally have deep wells of empathy, capable of feeling it in multiple directions at once. In fact, many people do, including, hopefully, the judges of our highest court.
In a country that criminally punishes people at a rate unprecedented in the world, it should be uncontroversial that more heart would be a good thing, especially on the bench. Every case that comes before the court involves a human being with a human story. We want judges who recognize that fact.
And there are a host of other reasons to celebrate a former public defender’s ascension to court. For too long, our criminal law system has been based on a facade of neutrality that assumes: there are laws, there are those who enforce them, and there are people who violate or comply with them. These are assumptions that permeate both popular culture and legal culture. And they are completely misleading. Given how entrenched racism is in our country, decisions about what and whom we criminalize are not neutral, nor are decisions about who is watched and prosecuted.
Millions of people in our country have known this for a long time. And that’s because millions of people in our country have been directly impacted by our system of mass incarceration. There are nearly 2 million people incarcerated in our country. There are an estimated 79 million people with criminal records, according to the Prison Policy Initiative. And nearly half of all adults in the United States have seen an immediate family member go to jail or prison for at least one night, according to researchers at Cornell University. These people know.
And within the criminal legal system, public defenders know it. They know that the way our criminal system manifests itself, through surveillance, prosecution, and increasingly surveillance, is anything but neutral. It is imbued with centuries of racism. It is based on the legacy of slavery that sustains our country. And it punishes relentlessly, seeking ever more control by increasing in size and power, while ignoring all data points and signs that its efforts are not making us safer.
How will this idea matter on the court? It might matter when the court is tasked with determining whether the constitution allows the imposition of a life sentence on a child, regardless of whether the child might be in a position to change the course of life. It could matter when the court is considering whether to allow a black man’s conviction to stand, even though the jury’s decision was not unanimous, with the only black juror in the case voting to acquit.
It could be important when evaluating what it really means for a criminal defense attorney to have been constitutionally ineffective, since someone like Jackson, who has first-hand experience as a defense attorney, will know what the job entails. And it could be important to the court’s evolving consideration of what it means for people, especially Black and Latino people, to have unexpected encounters with police. What does it mean to run from the police? Why would people do that in 21st century America? What does it mean to be in a “high crime” area, and what role should that characterization play in what police are allowed to do? What does it mean for the police to say that a person seemed nervous or evasive as a justification for stopping and frisking them, and what role should that characterization of supposed suspicion play in what the police can do?
We have never had a former public defender in a position to consider these issues in court. We have never had a black woman in a position to consider these questions on the court. I hope that Jackson’s heart, that all of our hearts, go out to those caught up in our punishing criminal legal system.
But I hope even more that your experience, personal and professional, will bring to light some of the realities of police violence, prosecutorial coercion, and the entrenched racism that our courts have circumvented and punished time and time again. I, along with many others, are hopeful that the experience of our new Supreme Court Justice will serve to undermine the façade of neutrality that our exceptionally cruel criminal legal system has clung to so tightly for decades.