After Justice Thurgood Marshall retired in 1991, Justice Sandra Day O’Connor recalled his “specific perspective”: “His was the eye of a lawyer who saw the deepest wounds in the social fabric and used the law to heal them. His was the ear of a counselor who understood the vulnerabilities of the accused and established safeguards for their protection. . . . At oral arguments and conference meetings, in opinions and dissents, Justice Marshall imparted not only his legal acumen but also his life experiences.” ²Sandra Day O’Connor, A Tribute to Thurgood Marshall, 44 STAN. L. REV. 1215, 1217 (1992).

Marshall had spent decades as a civil rights lawyer, including in the Deep South where he put his own life at risk. He battled school segregation and won Brown v. Board of Education in the Supreme Court. He represented Black people who had been terrorized by white police officers, and he defended people who faced execution. “Almost every justice who sat with Thurgood Marshall on the Court recalled, at one time or another, the power of his stories about his days as a civil rights lawyer,” Sherrilyn Ifill observed. But “Marshall’s tales about the injustices that befell his clients, the threats to his own safety and the lawlessness of Southern state court jurists were not presented merely to amuse his colleagues,” they provided crucial context that would have otherwise eluded the Court. As Justice Byron White said, Marshall told his fellow justices “much that we did not know due to the limitations of our own experience.”³Byron R. White, A Tribute to Justice Thurgood Marshall, 44 STAN. L. REV. 1215, 1216 (1992)

These insights show how broad diversity of professional experience is important for at least two reasons. First, a more diverse bench is essential to the actual and perceived legitimacy of the courts. The ideal of “equal justice under law,” carved into the marble architrave above the U.S. Supreme Court’s main entrance, depends on it.

If the judiciary is top-heavy with judges who spent their careers representing the wealthiest and most powerful—protecting the status quo of privilege and power by serving the interests of large corporations, or by defending police misconduct and sending young Black men to prison—then it’s hard to accept that historically marginalized and oppressed people will get a fair shake against those interests in court. 

More concretely, increasing professional diversity improves judicial decisionmaking and affects outcomes, especially on appellate courts where cases are discussed and “the interplay of perspectives of judges from diverse backgrounds and experiences” leads to more informed decisions.⁴Sherrilyn Ifill, Judicial Diversity, 13 GREEN BAG 2D 45 (2009). This is the value of Marshall’s perspective on a court with nine justices. Judges are not computers performing algorithmic calculations, they are human beings whose decisions are necessarily influenced by how they see and understand the world. As D.C. Circuit Judge Harry Edwards explained, it is “inevitable that judges’ different professional and life experiences have some bearing on how they confront various problems that come before them.”

Empirical analysis bears this out. “Studies have shown that judges who have worked as former prosecutors are more likely to vote against [criminal] defendants,” law professor Joanna Shepherd summarized, and are “more likely to favor the U.S. Sentencing Guidelines established in 1988.” In another recent study, political scientists Allison Harris and Maya Sen analyzed millions of criminal charges handled by federal trial court judges. They found that former public defenders were less likely to impose prison sentences and that the terms of incarceration they do impose tend to be significantly shorter. 

It’s not hard to see why this is true. Prosecutors have every incentive to obtain convictions and long prison terms, and their work often depends on maintaining close relationships with police departments.

When a prosecutor becomes a judge, her assessment of whether a police search or use of force was “reasonable,” or whether an incarcerated person’s civil rights claim is “plausible”—two legal standards that judges routinely apply—will likely differ from that of a public defender who spent years working side-by-side with people directly harmed by arrests, over-policing, and incarceration.

As Harris and Sen wrote in an op-ed, “public defenders work closely with criminal defendants and their families, and they are intimately familiar with the toll incarceration takes on individuals and on communities.”

Elsa Alcala, a former prosecutor who served on the Texas Court of Criminal Appeals (the state’s highest court for criminal cases), recalled how, “when I was a new trial judge, it was extremely difficult to shift my mindset from long-term prosecutor to neutral judge.” ⁵Interview on January 29, 2022; on file with SLRI. Over time, she said, “the distance from the [district attorney’s] office allowed me to see that the state was often fallible in its view and presentation of the law and evidence,” but this transition was “tough” and “did not happen overnight.”

Alcala also said that she worked with other judges on the Court of Criminal Appeals who came straight from prosecutor offices and who, in her view, brought a pro-prosecution bias to the court. “When I worked with them, I believed them to view the facts and law much like the prosecutor’s offices where they had worked before becoming judges,” she said. “At least one of them admitted as much in an interview. . . . years after she had been a judge on the Court, [Sharon] Keller described herself as ‘pro-prosecution.’” Keller later explained to a reporter that, “I guess what pro-prosecutor means is seeing legal issues from the perspective of the state instead of the perspective of the defense.”

Law professor James Forman and others have argued that a prosecutor-heavy bench has led to legal “rules [that] have facilitated mass incarceration. Judges have held that the Fourth Amendment doesn’t prohibit police from racially profiling drivers during traffic stops, that the Sixth Amendment permits trials with underfunded defense lawyers who present little evidence or argument, and that the Eighth Amendment is no bar to outrageous sentences like life without parole for drug possession,” Forman wrote. It is also “nearly impossible to sue police for civil rights violations because of the judge-made doctrine of ‘qualified immunity,’” and it “is even harder to sue prosecutors.”

The upshot is that who serves on our courts—and specifically what the nature of their career has been—relates directly to the legitimacy of the judiciary and to the content and contours of our most fundamental rights. 

State supreme courts have assumed greater importance as judges and scholars from across the political spectrum renew the push for “state constitutionalism”—the movement for state courts to analyze their own state constitutions independent of how the U.S. Supreme Court applies similar provisions in federal law. For example, nearly every state has an Eighth Amendment analogue that is similar if not identical to the federal ban on “cruel and unusual punishments.” But it doesn’t follow that each state provision and the Eighth Amendment must share the same meaning and protect the same set of legal rights. While the federal constitution provides a floor of protections against excessive punishments, state supreme courts can look to unique text, history, or other state and local interests to hold that their own state provision goes further. 

With the potential of state constitutionalism, state supreme courts are powerful and sometimes essential levers for protecting civil rights both within the criminal legal system and beyond. 

For example, in 2019 state supreme courts were thrust into a vital role protecting democracy when the U.S. Supreme Court held that it is powerless to prevent even blatant partisan gerrymandering in the drawing of congressional maps. Partisan gerrymanders effectively decide elections before they happen, ensuring that the favored party will win a certain number of seats. The Supreme Court’s 5-4 majority ruled that the federal Constitution provides no recourse, but based its opinion in part on the power of states and state supreme courts to intervene. In January 2022, applying a state constitutional amendment, the Ohio Supreme Court issued a closely-divided, 4-3 decision that struck down a congressional map designed to give Republicans a 12 to three advantage among the state’s seats in the House of Representatives. 

Also in 2019 the Kansas Supreme Court ruled that the state constitution—and specifically the Kansas Bill of Rights—protects the right to abortion. Other state supreme courts, including in Montana and Alaska, have also recognized state constitutional rights to abortion. 

State supreme courts also shape their state’s criminal legal system, particularly through state constitutional provisions, like Eighth Amendment analogues, that provide broader legal protections than the Federal Bill of Rights.

For example, over the last four years the Washington Supreme Court has struck down the death penalty; prohibited all life without parole sentences for youth under 18 and all mandatory life without parole sentences for anyone under 21; and invalidated the state’s statutes criminalizing drug possession—a ruling that effectively legalized drug possession and forced the state to vacate old convictions. In each case, the nine-member court went further than what federal precedent required. 

Across the country, other recent state supreme court decisions have, among other reforms, placed new restrictions on police searches and seizures⁶See, e.g., State v. McCarthy, 369 Or. 129, 132 (2021); People v. Gordon, 36 N.Y.3d 420 (2021)., expanded due process protections during criminal trials⁷State v. Caronna, No. A-0580-20, 2021 WL 5098249, at *9 (N.J. Super. Ct. App. Div. Nov. 3, 2021)., and barred the practice of increasing prison terms based on conduct that a jury acquitted at trial⁸State v. Melvin, 248 N.J. 321 (2021).

These decisions show both the power of state supreme courts to protect (or expand) fundamental rights and the profound stakes of judicial selection. Many of these cases were decided by divided courts, with outcomes turning on a single vote. One election or one governor appointment can determine the constitutional rights of millions of people.

This report is focused on the relationship between professional background and the criminal legal system, and therefore how prosecutorial experience among state supreme court justices compares to experience in public defense. Prosecutorial experience can of course take different forms. At the state level, it typically includes work in a local district attorney’s office or on behalf of the state attorney general. At the federal level, prosecutors work for the Department of Justice, either in a United States Attorney’s Office or for “Main Justice” in D.C. We counted such work whether lawyers handled primarily trials or appeals. We also counted lawyers who opposed petitions for habeas corpus, because while habeas proceedings are technically civil, the nature of the work involves defending criminal convictions and sentences. Lawyers in D.A. or U.S. Attorney offices who handled strictly civil cases, however, were not coded as prosecutors.

We also created a category for lawyers who defended the criminal legal system in civil litigation. Such work includes, for example, defending police officers and prison officials against excessive force claims. While such granular information (the precise nature of one’s civil practice) was not available in every state, we nonetheless identified 15 justices who did this work, including eight who did not also serve as prosecutors. Combining these eight judges with all former prosecutors accounts for over 40% of all state supreme court justices.

On the defense side, we categorized both public defenders specifically and “indigent defense” more broadly. In some cases, lawyers may acquire substantial indigent defense experience outside a public defender’s office, for example by serving on a panel that takes cases when the public defender’s office has a conflict of interest or providing defense services in the military’s JAG Corps. We also drew a distinction between civil rights lawyers who worked at nonprofit organizations (such as the ACLU or a local civil aid organization) or law firms and those who practiced civil rights solely on behalf of the government. Government lawyers are necessarily part of the legal system and therefore differently situated from private lawyers. And in some cases they may be appointed precisely because of their record opposing civil rights, with the goal of weakening civil rights enforcement. 

There is no uniform data set that includes complete biographical information for every high court judge in the country. To compile this information, we submitted records requests for judicial applications and questionnaires, reviewed bios published on state supreme court websites, scoured reputable media accounts of judicial elections and appointments, and, in states with judicial elections, reviewed candidate websites. In some cases, we talked to local attorneys and conducted legal research, analyzing briefs and court opinions to understand the precise nature of cases that judges had been involved with before they took the bench. 

In the end, detailed professional history was more readily available in some states than others. The best information came from states where judicial applicants completed detailed questionnaires that became public record. We obtained formal applications for 106 justices. Nine states (AK, CA, CO, FL, IN, ME, NM, OR, SC) provided judicial applications for all of their current justices. In 16 other states and in DC, we were able to locate such records for a partial set of justices (Nebraska furnished a nearly complete set, providing six out of seven applications.) For the remaining justices, we assembled detailed professional histories by drawing on resources that included CVs, court bios, retention questionnaires, state bar questionnaires, news stories, candidate websites, and/or Senate Judiciary Committee questionnaires submitted by people who had once been a federal judicial nominee. 

In categorizing each judge’s experience, we looked beyond merely the job that judges held at the time of appointment or election, and did not limit experience to how people spent the  majority of their career. Instead we used a “substantial experience” approach to capture a more comprehensive view of professional experience — the question for us was not whether a particular professional experience defined or dominated one’s legal career, but whether it could be said in a meaningful way that they have such experience in their background. If someone worked in a public defender’s office for a year, then they are a former public defender, and the same standard applied to prosecutors and time spent in a district attorney’s office. 

By that same token, though, a corporate law partner who handled a pro bono prisoner lawsuit would not generally be regarded as a “former civil rights lawyer,” and so such one-off projects were not counted. Likewise, we did not count time spent on the board of nonprofit organizations (as opposed to actually engaging in the legal work of such organizations) or summer internships before graduating law school.