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Ty Alper
University of California, Berkeley
Before joining Berkeley Law in 2004, Ty Alper was a staff attorney at the Southern Center for Human Rights in Atlanta. A former law clerk to Chief Judge Harry T. Edwards on the U.S. Court of Appeals for the D.C. Circuit, Alper served as senior articles editor of the New York University Law Review. At the Southern Center, Alper represented Alabama and Georgia death row inmates in all stages of state and federal post-conviction proceedings. He also represented hundreds of Alabama prisoners in federal class-action litigation concerning unconstitutional conditions of confinement. Alper previously served as an E. Barrett Prettyman Fellow at Georgetown University Law Center's Criminal Justice Clinic, where he received an LL.M. in Trial Advocacy. In 2010, the Federation of State Medical Boards awarded Alper the Ray L. Casterline Award for Excellence in Writing for his article on the role of state medical boards in the regulation of physician participation in executions. In 2008, his research into state animal euthanasia statutes and lethal injection protocols received national media attention and was cited by Justice John Paul Stevens in his concurring opinion in Baze v. Rees, 553 U.S. 35 (2008). In 2007, Alper received an "Angel Award" from California Lawyer in recognition of his "fierce commitment to pro bono cases." In 2003, Alper received the Recent Graduate Award from New York University School of Law in recognition of his professional achievements. View Paper Abstract
Citing Gideon, the Court this Term in Martinez v. Ryan declared that “the right to counsel is the foundation of our adversary system” and that “the right to the effective assistance of counsel at trial is a bedrock principle in our justice system.” In his dissent in Martinez, Justice Scalia mocked the prevalence of ineffective assistance of counsel claims: “[H]as a duly convicted defendant ever been effectively represented?” But as a practical matter, the current state of the law ensures that the vast majority of convicted defendants have no recourse to raise ineffective assistance of counsel claims, and thus no mechanism for vindicating the requirement that the counsel Gideon provides be “effective.”
In fact, violations of this fundamental right are surprisingly invisible. This is so because the Court has never held that convicted defendants enjoy a constitutional right to effective assistance of counsel in post-conviction proceedings, where ineffective assistance of counsel claims must typically must be raised. It is therefore an open question whether the right to effective assistance of counsel at trial includes the right to raise an ineffectiveness claim. Gideon’s 50th anniversary provides an appropriate moment to reconsider a famous right, the remedy for which proves elusive for all but a handful of convicted defendants.
In this Essay I argue that, in Martinez and Maples v. Thomas, the Court has taken a step closer to recognizing not a right to post-conviction counsel, but rather a right to raise a claim of ineffective assistance of trial counsel. Framed as such, I suggest that Martinez and Maples portend a regime in which it is possible to obtain a remedy for a Sixth Amendment violation without extending Gideon to post-conviction cases. This regime may be both more palatable to a conservative Court and more easily implemented on the ground, thus rendering visible – and actionable – violations of Gideon’s promise.
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Steven Benjamin
President, National Association of Criminal Defense Lawyers
NACDL President Steven D. Benjamin is an attorney in private practice with the Richmond, Virginia firm of Benjamin & DesPortes. He serves as Special Counsel to the Virginia Senate Courts of Justice (Judiciary) Committee, and is a member of the Virginia Board of Forensic Science and the Virginia Indigent Defense Commission. He is a Past President of the Virginia Association of Criminal Defense Lawyers. Mr. Benjamin was counsel in the landmark Virginia Supreme Court decision recognizing a constitutional right to forensic expert assistance at state expense for indigent defendants. He is a recipient of the Virginia State Bar’s Lewis F. Powell Pro Bono Award in recognition of his years of indigent defense and efforts toward indigent defense reform. He is a frequent lecturer on criminal justice and defense issues, and is a Fellow of the American Board of Criminal Lawyers.
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Stephanos Bibas
University of Pennsylvania
Stephanos Bibas studies the powers and incentives that shape how prosecutors, defense counsel, defendants, and judges behave in the real world of guilty pleas. His 2004 paper, “Plea Bargaining Outside the Shadow of Trial” (Harvard Law Review), explored the agency costs, structural forces, and psychological biases that cause plea bargaining to deviate from expected trial outcomes. He also studies the divorce between criminal procedure’s focus on efficiency and criminal law’s interest in healing victims, defendants, and communities. His new book (The Machinery of Criminal Justice, Oxford 2012) explains how criminal justice should do more to encourage
acceptance of responsibility, remorse, apology, and forgiveness.As director of Penn’s Supreme Court Clinic, Bibas litigates a wide range of Supreme Court cases. He and his co-counsel won a landmark victory inPadilla v. Kentucky in 2010, persuading the Court to recognize the right of noncitizen defendants to accurate information about deportation before they plead guilty. His academic work played a central role in the Supreme Court’s landmark case of Blakely v. Washington. View Paper Abstract
Putting Gideon on a Sustainable Diet
As Gideon turns 50, it shows its age. Gideon may not exactly be a failure, as it has spread defense counsel to most felony cases, but it has hardly been a ringing success. Underfunding and lack of support are chronic problems, stemming from political hostility or indifference to criminal defendants and the difficulty of guaranteeing funding sources, particularly ones that keep pace with steadily rising caseloads. As a result, defendants may have lawyers in name only, meeting with them for only 5 minutes before being told to plead guilty at the initial appearance or soon thereafter.
The standard academic response has been to lament this situation and call for a new law or more aggressive litigation and constitutional challenges. That simply has not worked. Gideon's problems are deep, structural ones. We have been spreading resources too thin, in the process slighting the cases (such as capital cases) that need more time and money.
The longer-term solution has to involve shrinking the universe of cases covered by Gideon to preserve its core. There are other ways to simplify cases so lawyers are less necessary, particularly for bench trials and misdemeanors. There may also be ways to streamline cases so that paralegals, social workers, and others can automate delivery of legal services for routine cases, much as nurse practitioners and physician assistants do for routine medical cases. Gideon can work only if lawyers drop their grandest ambitions for lawyerizing the world and instead step back to make lawyers less necessary in the first place, to concentrate their efforts on providing quality legal services where they are less needed. Quality and support matter more than quantity alone.
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Josh Bowers
University of Virginia
Josh Bowers joined UVA in 2008 after two years as a Bigelow Fellow at the University of Chicago Law School. Bowers graduated Order of the Coif from New York University School of Law, where he was a notes editor of the Law Review. After law school, he clerked for Judge Dennis Jacobs of the U.S. Court of Appeals for the Second Circuit. Next, he worked an associate at Morvillo, Abramowitz, Grand, Iason & Silberberg, P.C., a boutique white-collar criminal defense firm in New York City. After that, he spent three years as a criminal defense attorney for the Bronx Defenders, a community-based public defender organization. Bowers’ research and teaching interests include criminal law, criminal justice and criminal procedure. Specifically, he explores on-the-ground enforcement and adjudication of criminal law, which is shaped not solely by what happens at trial and on appeal, but by the day-to-day decisions made and actions taken within communities, police precincts and courthouses. He focuses on the often-competing (but sometimes harmonious) incentives of various institutional actors, concentrating particularly on underappreciated differences in the ways in which police, prosecutors, defense attorneys and judges approach petty and serious cases. View Paper Abstract
The Rights to Counsel
There is not one right to counsel, but two. There is a right to legal counsel and a right to extralegal counsel. The right to legal counsel applies principally to the formal domain of the criminal trial; the right to extralegal counsel applies exclusively to the informal domains of the plea bargain and guilty plea. To understand the distinction, consider the Court’s recent decisions in Lafler v. Cooper and Missouri v. Frye. An underappreciated feature of these rulings is the manner by which the Court has encouraged (and perhaps even constitutionally required) counsel to bargain creatively around substantive law. Specifically, the Court has signaled that prosecutors and defense attorneys—not legislators—are the system’s real policy makers, and that, accordingly, effective assistance of counsel ought to be measured against their conception of the “sound administration of criminal justice.” In the process, the Court has almost re-conceptualized the right to counsel as a constitutional entitlement to skirt legislative command—an entitlement that Justice Scalia derisively has termed a threat to the legality principle.
If nothing else, the Court has opened a rift between distinct rights to counsel. For example, whereas a defense attorney is not obliged (and, indeed, is not permitted) to make extralegal arguments to a jury, she may (and now sometimes must) make extralegal arguments to the prosecutor in an effort to circumvent code law. It does not follow, however, that the Court’s two-track jurisprudential approach is misguided. Whereas the approach does advance the troubling trend away from legislative and lay influence over criminal justice and toward professional executive control, it also may constitute the pragmatic (and even normatively compelled) best course in a second-best system of criminal justice that depends procedurally on horse trading and substantively on mandatory sentencing statutes that ill serve any sound conception of proportionality or crime control.
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Nora Demleitner
Dean, Washington and Lee School of Law
Dean Demleitner received her J.D. from Yale Law School, her B.A. from Bates College, and an LL.M. with distinction in International and Comparative Law from Georgetown University Law Center. After law school Dean Demleitner clerked for the Hon. Samuel A. Alito, Jr., then a member of the U.S. Court of Appeals for the Third Circuit. Dean Demleitner teaches and has written widely in the areas of criminal, comparative, and immigration law. Her special expertise is in sentencing and collateral sentencing consequences. At conferences around the country she regularly speaks on sentencing matters, often in a comparative context, and issues pertaining to the state of legal education.
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Cara Drinan
Catholic University Columbus School of Law
Cara Drinan teaches criminal law, criminal procedure and a seminar on gender and the law. Her research focuses on criminal justice reform and addresses topics such as systemic Sixth Amendment litigation, congressional efforts to improve indigent defense services, and juvenile sentencing policy. Drinan currently serves on the Executive Committee for the ABA’s Corrections Committee. In addition, she is a member of the NLADA’s Research and Data Analysis Advisory (RDA) Committee. The RDA Committee has been charged with identifying best practices for defenders nationwide regarding data collection and evidence-based advocacy. Drinan holds a B.A. in Economics from Bowdoin College, an M.A. from Oxford University in Politics, Philosophy and Economics, and a J.D. from Stanford Law School. She was a 1995 recipient of a Truman Scholarship and a 1997 recipient of a Marshall Scholarship. View Paper Abstract
Getting Real about Gideon: The Next Fifty Years of Enforcing the Right to Counsel Abstract In the last five decades, the Supreme Court has consistently expanded the scope of the Sixth Amendment right to counsel. Not only must states provide counsel to poor criminal defendants in serious cases, but states must also provide counsel to any defendant facing potential jail time, to minors in delinquency proceedings, and to defendants who appeal their state court convictions on direct appeal. Moreover, and perhaps most significant, the Court has held that state-funded lawyers must be effective in all of these contexts. In recent years, the Court has added new dimensions to this latter requirement – that indigent defense counsel be effective. For example, in death penalty cases, lawyers must meet a heightened standard of practice, and in all cases, lawyers for the poor must understand the countless collateral consequences that flow from a criminal conviction and counsel clients accordingly. Based on these constitutional requirements announced by the Court, one would think that the right to counsel in America is robust and vibrant, and yet that is far from true.
While the Court has continued to expand the contours of the right to counsel since its landmark decision in Gideon, even the most basic understanding of the right to counsel has never been fully implemented on the ground. From the start, states have failed to adequately fund the indigent defense function, and as the volume of criminal cases has grown over the years, too few lawyers have faced ever-increasing workloads. The result has been what many have called “assembly-line justice” – in other words, egregious and persistent violations of the right to counsel as described by the Court. These violations have not gone unnoticed by academics and defenders. In the last fifty years, there have been significant efforts to document the indigent defense crisis and to correct it. And yet, despite countless reports and articles detailing the crisis, state and federal court litigation, and attempts at legislative reform, the right to counsel remains illusory for most poor criminal defendants.
As we mark the 50th anniversary of Gideon, this paper argues that we can and should be more realistic in our efforts to enforce the right to counsel. Assuming, as many now do, that five decades of resource-starved indigent defense will likely continue in the future, where are our efforts most effectively deployed in the years to come? This paper addresses that question in three parts. Part I briefly notes the entrenched crisis in indigent defense services that is as old as the Gideon decision itself. Part II examines the most salient reform efforts of the last fifty years, highlighting those that have made a lasting impact on the provision of indigent defense services. Part III suggests that many efforts of the last five decades need to be de-emphasized in order to make room for efforts that are achievable and imperative in the near term. In particular, I suggest that some litigation strategies are better than others; that defenders need to look for opportunities to collaborate with prosecutors in the pursuit of diversion and decriminalization; and that the defense community needs to explore the role that non-lawyers can play in protecting the rights of criminal defendants. In conclusion, I identify potential sources of resistance to my proposals and articulate a vision for future works in this area.
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Don Dripps
University of San Diego
Professor Donald A. Dripps is a recognized scholar of criminal procedure, evidence and criminal law, and also teaches administrative law. He was editor-in-chief of the Michigan Law Review and is a member of the Order of the Coif. After receiving his law degree, Dripps worked as a law clerk for Judge Amalya Kears of the Second Circuit Court of Appeals in New York City. Since then he has been an assistant professor at the University of Illinois College of Law, a visiting professor at Duke University School of Law, a visiting professor at Cornell University Law School, and the James Annenberg Levee Professor of Criminal Procedure at the University of Minnesota Law School. View Paper Abstract
Why Gideon Failed
Abstract, 18 July 2012
Donald A. Dripps
University of San Diego
Few decisions of the U.S. Supreme Court have found more enduring support, in both popular and elite opinion, than Gideon v. Wainwright. Legal scholars generally agree, however, that Gideon has not succeeded in securing effective representation for all indigent felony defendants. The literature, moreover, is bereft of any convincing connection between Gideon’s holding and the text and history of the Sixth Amendment.
Why did Gideon fail? Perhaps the most widespread, albeit implicit, explanation in the literature is political and doctrinal: legislatures refused to pay for truly effective indigent defense, and the Burger Court sold Gideon down the river by acquiescing in this systematic neglect. A second explanation is political but institutional rather than doctrinal: the Court imposed federal constitutional requirement on criminal procedure but left the substantive criminal law in legislative control. The expanding scope and severity of the substantive law, coupled with an enormous public investment in police and prisons, resulted in a criminal justice system very different from the one operating when Gideon was decided. The dominance of plea bargaining was required by the sheer scope of the modern system. Gideon, according to this second account, may not have prompted, but surely facilitated, the now almost complete substitution of pleas for trials.
This Article assesses these prevailing explanations by comparing two thought experiments. In the first, a working majority of the Supreme Court breathes fresh life into Gideon by adopting one or more of the plausible reforms proposed in the literature. In the second, a working majority of the Court acts directly against industrial-scale reliance on pleas, by adopting a transactional test of the “same offense” under the Fifth Amendment, a bright-line rule under the Eighth Amendment limiting the penalty for crimes less heinous than homicide, and due process standards requiring an adversary discovery hearing prior to plea and a prohibition on “offers” that would induce a rational innocent accused to plead guilty.
I have not yet fully thought through the implications of the two experiments, but my current conjecture is that Gideon would still fail under both of the hypothesized regimes. Rejuvenating Gideon would increase the supply of indigent defenders without constraining demand; the net effect is problematic. “Decent restraint” of prosecutorial plea leverage would increase the demand for indigent defenders without expanding supply.
A third thought experiment combines the other two. If the Supreme Court took dramatic steps to constrain prosecutorial discretion, and reinforced the requirement of effective assistance, we can visualize a world in which Gideon succeeds. But that world comes at a price, a price higher than legislatures hitherto have shown willingness to pay, higher too than courts have shown willingness to require.
So while the doctrinal and institutional accounts both reflect important truths, neither gives a fully satisfying account of Gideon’s failure. The fundamental reasons Gideon failed are that good lawyers are costly, and that in many cases good lawyers are neither necessary nor sufficient to secure procedural fairness. If we leave behind constitutional formalisms Gideon itself could not survive, the constitutional issue ought to be what type of advocacy, with what sort of procedural rights to discovery and against punishment for standing trial, should the courts require? Gideon failed, then, not because the courts became less sympathetic to procedural fairness, and not because the criminal justice system metastasized. Those things happened, and both made Gideon’s mission harder. The ultimate reason Gideon failed, however, is that Gideon adopted a constitutional template that implicitly made the right question impertinent.
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Margareth Etienne
University of Illinois
Margareth Etienne, Nancy Snowden Research Scholar in Law, has been teaching Criminal Law and Procedure at the University of Illinois at Urbana-Champaign since 2001, where she is currently the Associate Dean for Academic Affairs. Her scholarship focuses on the criminal defense bar and on criminal sentencing and has been published in the Stanford Law Review, The New York University Law Review, the California Law Review and the Journal of Criminal Law and Criminology. In 2004, Professor Etienne was awarded a Fulbright Grant to conduct judicial training on white collar crime in Senegal. She served on the Executive Board of the AALS Section on Professional Responsibility. Etienne received her bachelor's degree in history with honors from Yale University, and earned her law degree from Yale Law School. Following a clerkship with Judge Diana G. Motz on the United States Court of Appeals for the Fourth Circuit, she was a public defender in state and federal courts for several years. View Paper Abstract
Fifty years after Gideon, the theoretical commitment to the right to counsel remains strong. Not so long ago, the notion that every criminal defendant, whether in state or federal court—was entitled to the provision of counsel at critical stages of criminal proceedings was revolutionary. In Missouri v. Frye and its companion case, Lafler v. Cooper, the Supreme Court again reinforced the importance of the right to counsel by extending the right to the plea agreement context. While the public perception that the accused has a fundamental “right to a lawyer” is entrenched in the American psyche and in its jurisprudence, the administrability and enforcement of the righto counsel have been significant challenges. This article will explore the challenges of regulating and administering the right to counsel, with a focus on Frye and its aftermath as a core example.
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Brandon Garrett
University of Virginia
Brandon L. Garrett's research and teaching interests include criminal procedure, wrongful convictions, habeas corpus, corporate crime, civil rights, civil procedure and constitutional law. His recent research includes studies of DNA exonerations and organizational prosecutions. Harvard University Press recently published Garrett’s book, "Convicting the Innocent: Where Criminal Prosecutions Go Wrong," examining the cases of the first 250 people to be exonerated by DNA testing. Garrett is currently working on a new book, in contract with Harvard University Press, examining corporation prosecutions. Garrett attended Columbia Law School, where he was an articles editor of the Columbia Law Review and a Kent Scholar. After graduating, he clerked for the Hon. Pierre N. Leval of the U.S. Court of Appeals for the Second Circuit. He then worked as an associate at Neufeld, Scheck & Brustin LLP in New York City. View Paper Abstract
Validating Strickland
In Strickland v. Washington, the Supreme Court established the principle that a defendant is entitled not just to a lawyer, but a reasonably effective advocate – and also ruling that a trial verdict should not be reversed even if the defense was constitutionally ineffective, so long as those failures did not materially prejudice the outcome. The Court called on lower courts to conduct a harmless error-type inquiry into the effectiveness of counsel. However, that inquiry is notoriously malleable, and it is not clear, even putting to one side how well the analysis is conducted, that judges rely on the appropriate factors when deciding whether errors by counsel in fact sufficiently affected the outcome at trial. Indeed, judges may rely on suppositions about the impact of evidence on jurors that are implausible or have been called into question by social science research. Quite a bit is known about some types of evidence, such as eyewitness evidence and confession evidence, and how they impact jurors. Not enough is known about what impact other types of evidence have on a jury, much less how those types of evidence impact jurors when contaminated by attorney-error, or when not presented at all due to a failure to investigate. While studying such questions farther poses real challenges for social science methods, insights from existing research suggest a more valid approach towards Strickland and point the way towards additional research that might place Strickland and perhaps harmless error more generally on a stronger empirical footing.
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John Gross
Indigent Defense Counsel, National Association of Criminal Defense Lawyers
John Gross helps the NACDL devise legislative and litigation strategies, working closely with NACDL’s leadership, committees, affiliates and pro bono outside counsel, as well as liaising with other legal and professional organizations. View Paper Abstract
“The Difference between Being Indigent and Being Too Poor to Hire a Lawyer”
The Sixth Amendment guarantees counsel to anyone too poor to hire an attorney but states have consistently equated the inability to hire counsel with “indigency”. The current indigency standards often use a multiple of the Federal Poverty Guidelines as the threshold for eligibility for assigned counsel. Many people who are simply too poor to hire an attorney are nonetheless denied assigned counsel since they are not “indigent” when indigency is defined by the Federal Poverty Guidelines. In many states across the country, someone who is eligible for food stamps is ineligible for assigned counsel. The growth of “cost recoupment” statutes and the costs imposed on “marginally indigent” defendants means that even defendants who are not indigent at the start of a criminal prosecution will be by the time it ends. This article argues that states should use “self-sufficiency standards” rather than the Federal Poverty guidelines to determine eligibility for assigned counsel and questions the wisdom of these types of practices in a system which supposedly is founded on the presumption of innocence.
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Erica Hashimoto
University of Georgia
Erica J. Hashimoto teaches in the areas of criminal law, evidence, legal profession and sentencing. Hashimoto developed a practical understanding of criminal law while serving four years as an assistant federal public defender in the Office of the Federal Public Defender in Washington, D.C. In this position, she gained significant trial experience representing clients charged with a variety of federal crimes, including the possession of guns and drugs, fraud and threats on the president. Prior to holding this position, Hashimoto was a law clerk for Judge David S. Tatel of the U.S. Court of Appeals for the District of Columbia Circuit (1999-2000) and Judge Paul L. Friedman of the U.S. District Court for the District of Columbia (1997-1999). Hashimoto earned her bachelor's degree with honors from Harvard University and her law degreemagna cum laude from the Georgetown University Law Center. At Georgetown, she served on the Georgetown Journal of Legal Ethics and was inducted into the Order of the Coif. View Paper Abstract
The Problem with Misdemeanor Representation Abstract The failure to appoint counsel in misdemeanor cases very likely represents the most-widespread violation of federal constitutional rights in criminal cases. A decade ago, the Supreme Court held that indigent criminal defendants sentenced to suspended terms of incarceration in misdemeanor or petty offense cases have a constitutional right to appointed counsel, even if the defendant is never actually incarcerated. At that time, many jurisdictions limited the misdemeanor right to counsel to defendants either actually sentenced to imprisonment or likely to receive imprisonment sentences, and Shelton therefore required those jurisdictions to appoint counsel in significantly more cases than they had been. The Court’s ruling notwithstanding, all available evidence—anecdotal and statistical—points to the distinct probability that some jurisdictions routinely violate the constitutional right set forth in Shelton.
That non-compliance stems from three inter-related and thorny enforcement problems. First, at least some state and local jurisdictions have rejected Shelton and have admitted that they are not complying with the Court’s constitutional mandate. As a result, Shelton is not self-executing in the way that many of the Court’s decisions are, and mechanisms to enforce the Court’s holding are essential. Second, it is difficult to measure the extent to which jurisdictions are complying with the Court’s mandate, in part because only certain misdemeanor defendants have a right to court-appointed counsel, and in part because we have little data on what percentage of misdemeanor defendants either are represented or should be represented.
Finally, the knowledge base and incentives to enforce the right are relatively low and also are not aligned. Defendants whose rights have been violated have the greatest incentive to ensure enforcement of their rights, but they likely also lack the knowledge that they ever had a right to counsel. Indeed, even lawyers often do not know the circumstances under which misdemeanor defendants have a right to counsel, and Shelton defendants probably do not know that they have a right to counsel. In addition, as compared to felony defendants threatened with long prison terms, Shelton defendants may be less likely to research their own constitutional rights and learn that they have a right to counsel if their terms of imprisonment are suspended. And because these defendants are not represented (hence the constitutional violation), no counsel are vigilant to the violation of their rights. Those with knowledge of the right to counsel—public defenders or other court-appointed counsel—may be so overburdened that they have neither the time to litigate the issue nor the resources to handle the additional cases that would result if they won.
This essay explores the intersection of these three enforcement obstacles in order to better understand the extent to which jurisdictions violate the rights of Shelton defendants and the causes of that non-compliance. Until we have a much clearer sense of the level and patterns of Shelton compliance across the country and the effect, if any, of that non-compliance, on the misdemeanor defendants whose rights are being violated, any discussion of expanding the right to counsel seems premature. Ultimately, we need much more data to ascertain the extent of Shelton non-compliance. Finally, to the extent that there are widespread violations of the Shelton right to counsel that have not been the subject of litigation, this Essay explores potential ways to resolve those violations.
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Rick Jones
Executive Director, Neighborhood Defender Service of Harlem
Rick Jones is the executive director and a founding member of the Neighborhood Defender Service of Harlem (NDS). He is a distinguished trial lawyer with more than 20 years experience in complex multi-forum litigation. Rick is a lecturer in law at Columbia Law School (CLS), where he teaches a criminal defense externship and a trial practice course. He is also on the faculty of the National Criminal Defense College (NCDC) in Macon, Georgia.
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J.D. King
Washington and Lee University
J.D. King is the Director of the Criminal Justice Clinic and an Associate Clinical Professor of Law at Washington and Lee University School of Law. In addition to designing and supervising the Criminal Justice Clinic, J.D. teaches in the areas of Criminal Procedure, Evidence, and Professional Responsibility, and writes about criminal defense and prosecution ethics and the right to counsel. He has a B.A. in History and Religious Studies from Brown University, a J.D. from the University of Michigan Law School, and a LL.M. in Advocacy from Georgetown University Law Center. Prior to teaching, J.D. was a Supervising Attorney at the Public Defender Service for the District of Columbia, a Prettyman Fellow at Georgetown University Law Center, and a law clerk to United States District Judge Richard H. Kyle.
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Erik Luna
Washington and Lee University
Erik Luna is Sydney and Frances Lewis Professor of Law at Washington and Lee University. He graduated summa cum laude from the University of Southern California and received his J.D. with honors from Stanford Law School. Upon graduation, Luna was a prosecutor in the San Diego District Attorney's Office and a fellow and lecturer at the University of Chicago Law School. He has served as the senior Fulbright Scholar to New Zealand, where he taught at Victoria University Law School (Wellington, NZ) and conducted research on sentencing alternatives. Luna has also been a visiting scholar with the Max Planck Institute for Foreign and International Criminal Law (Freiburg, DE), a visiting professor with the Cuban Society of Penal Sciences (Havana, CU), and a visiting professional in the Office of the Prosecutor of the International Criminal Court (The Hague, NL). Luna is an adjunct scholar with the Cato Institute and a project director with the Alexander von Humboldt Foundation. He teaches and writes primarily in the areas of criminal law and procedure.
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Robert Mosteller
University of North Carolina
Professor Robert P. Mosteller is Associate Dean for Academic Affairs and J. Dickson Phillips Distinguished Professor at the University of North Carolina School of Law. Prior to joining the UNC faculty in 2008, he taught at Duke Law School where he was the Harry R. Chadwick, Sr. Professor of Law.
Professor Mosteller holds a Masters in Public Policy from Harvard and a J.D. degree from Yale. After clerking on the United States Court of Appeals for the 4th Circuit with Judge J. Braxton Craven, Jr., he worked for seven years with the Washington, D.C. Public Defender Service where he was Director of Training and Chief of the Trial Division.
Professor Mosteller is a co-author of the McCormick evidence treatise and an evidence casebook and problem book. He writes and teaches in the areas of evidence and criminal procedure. In criminal procedure, his recent scholarship has concentrated on provision of quality legal services to those accused of crime and race and the death penalty. In evidence, he has written frequently on the issues of hearsay and confrontation. View Paper Abstract
Potential Innocence: Making the Most of a Bleak Environment for Public Support of Indigent Defense
I have written about a set of “garden variety” cases I handled while a public defender that raised issues about innocence from which I drew two lessons. First, many truly innocent defendants are hidden among reasonable doubt cases without any real prospects of conclusively proving their innocence on the order of DNA exonerations, which provide the symbolic standard for “actual innocence.” Second, the best prospect for protecting innocent defendants without conclusive proof is to provide them with excellent legal assistance.
I believe sixth amendment and due process protections for all those charged with serious crimes are worthy arguments to support indigent defense, but they are losers with the public. This is particularly true as funding for services has declined and promises to decline still further at all levels of government in the aftermath of the Great Recession and as empathy has receded in the ensuing political upheaval.
Innocence protection is likely the only available option to develop public support for indigent defense, but the innocence movement’s standard of almost absolute proof effectively limits its support of Gideon’s command to a small subset of defendants. On the other hand, despite being narrowly focused, the innocence movement has been a strong enabling force for important procedural protections for those charged with crime.
My sense of hope and reality collide. Those who support Gideon are likely unable to convince the public of the value of broad support for indigent defendants in that the values it protects are either not considered worthy at all or are considered insufficiently important when weighed against other unmet public needs. Actual innocence is likely the only realistic available argument to further Gideon, but its power is sufficient to carry the day for a limited group of cases. The arguments for innocence among the group I highlight—the potentially innocent who are only able to show degrees of doubt regarding their guilt—are likely inadequate in their own right. However, they are important to prevent isolation of the powerful innocence argument to a narrow group of defendant, which could even further disadvantage all others charged with crime.
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Alexandra Natapoff
Loyola Law School, Los Angeles
Alexandra Natapoff is an award-winning legal scholar and a nationally-recognized expert on criminal informants. She is Professor of Law at Loyola Law School, Los Angeles, a graduate of Yale and Stanford, and a member of the American Law Institute. Her book,Snitching: Criminal Informants and the Erosion of American Justice (NYU Press, 2009), won the 2010 ABA Silver Gavel Award Honorable Mention for Books. View Paper Abstract
Gideon Skepticism - ABSTRACT
The defense lawyer has become the primary guarantor of fairness of the criminal system and the legitimacy of individual convictions. If a person had a competent lawyer, it generates a presumption that his trial was fair, the evidence sufficient, and/or his plea knowing and voluntary. This is a highly problematic legal fiction. The presence of counsel advances but cannot guarantee fair trials and voluntary pleas. More fundamentally, a lawyer in an individual case will often be powerless to address a wide variety of systemic injustices. A defendant may be the victim of overbroad laws, racial selectivity in policing, prosecutorial overcharging, judicial hostility to defendants, or harsh mandatory punishments and collateral consequences, none of which his lawyer can meaningfully do anything about. This is particularly true in the misdemeanor context, in which millions of cases are created and rushed through an assembly-line process without much evidence or scrutiny. In this world, the presence or absence of counsel is just one piece of a much larger puzzle of systemic dysfunction. Accordingly, while the right to counsel remains an important ingredient in fair trials and legitimate convictions, it cannot bear the curative weight it has been assigned. In the modern era of overcriminalization and mass judicial processing, other legal actors and institutions should share more responsibility for protecting defendants, a responsibility that now rests almost entirely and unrealistically on the shoulders of defense counsel.
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Norman Reimer
Executive Director, National Association of Criminal Defense Lawyers
Norman L. Reimer is the Executive Director of the National Association of Criminal Defense Lawyers (NACDL). NACDL is the preeminent organization in the United States advancing the mission of the nation’s criminal defense bar to ensure justice and due process for all and to advocate for rational and humane criminal justice policies. As executive director, Norman Reimer leads a professional staff based in Washington, D.C. serving NACDL’s approximately 10,000 direct members and 90 local, state and international affiliate organizations with up to 40,000 members. Prior to assuming this position Norman Reimer practiced law for 28 years, most recently at Gould Reimer Walsh Goffin Cohn LLP. A criminal defense lawyer throughout his career, with expertise in trial and appellate advocacy in both state and federal jurisdictions, Mr. Reimer is also a recognized leader of the organized bar, and a spokesperson in behalf of reform of the legal system.
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Jenny Roberts
American University Washington College of Law
Jenny Roberts teaches in the Criminal Justice Clinic, as well as an Advanced Criminal Procedure course entitled “Plea Bargaining.” Her research focuses on the regulation of actors in the criminal justice system through constitutional law, statute, rules of professional responsibility, professional standards, and culture. Her latest article focuses on Why Misdemeanors Matter, examining the lack of guidance for effective advocacy in the nation’s lower criminal courts, where the vast majority of prosecutions take place. She has written about the “collateral consequences rule” in the context of civil commitment of “sexually violent predators,” and about the link between ineffective assistance of counsel and restrictive discovery rules. A recent article, which Justice Stevens cited in Padilla v. Kentucky, explored the duty of defense counsel to warn clients about collateral consequences. Roberts currently serves on the Board of Directors of the Clinical Legal Education Association, the nation's largest association of law teachers. She is also the Reporter for the National Association of Criminal Defense Lawyers’ Task Force on Restoration of Rights and Status After Conviction. Before coming to American, Professor Roberts was at Syracuse University, where she directed the Criminal Defense Clinic. Prior to that, she was a Senior Research Fellow at NYU Law School’s Center for Research in Crime & Justice, and taught for three years in NYU’s Lawyering Program. She clerked in the Southern District of New York, and was a public defender in Manhattan. She is admitted to the Supreme Court, Maryland, and New York State bars.View Paper Abstract
Abstract for Washington & Lee 2012 Gideon Symposium
Theorizing a Disruptive Role for Defense Counsel in Misdemeanor Cases or perhaps: Defense Counsel and the Need for Disruption in the Misdemeanor System
There is a misdemeanor crisis in the United States. The recent, exponential growth in lower court prosecutions for “minor” charges has drawn increasing numbers of individuals into contact with the criminal justice system and then left those individuals with a permanent, easily-accessible electronic record of that contact that can affect future employment, family life, and many other basic facets of daily life. Legislators have added misdemeanor after misdemeanor to the criminal law books. Law enforcement has – usually pursuant to zero-tolerance policing policies though a “broken window” theory lens—aggressively enforced those statutes. Prosecutors have failed to exercise much discretion in sorting through the huge number of misdemeanor cases that the police send to them, and instead churn this high-volume set of cases through the overburdened lower courts. Public defenders in the lower criminal courts have in many instances abdicated their professional, constitutional, and ethical duties to provide effective, zealous representation to their clients. Judges in the lower courts have been complicit, failing to question questionable public order and other misdemeanor charges based largely or solely upon police testimony, failing to hold prosecutors to their ethical duty to dismiss weak cases, and failing to act when faced with clear evidence that indigent defense providers are unable to provide effective, ethical representation for such large numbers of clients on a tightly-limited budget.
The aggregation of these institutional actors’ contributions to misdemeanor processing is essentially a social pathology, and one that is difficult to eradicate now that its wheels are fully in motion. There is growing recognition of this misdemeanor crisis amongst practitioners and scholars, and burgeoning recognition in the press and in some spheres of public opinion. This recognition means it is an opportune moment to consider reform, in particular how to roll back the seemingly unstoppable use of the criminal justice system for what is, effectively, social control purposes, in ways that we now know to be harmful to public safety as well as the very legitimacy of the system.
In a 2012 article, Why Misdemeanors Matter: Defining Effective Advocacy in the Lower Criminal Courts, 45 U.C. DAVIS L. REV. 277 (2011), I discussed some of these issues. My particular focus in that article was the need for constitutional and professional standards for the delivery of effective assistance of counsel in misdemeanor cases. The article dealt with some of the problems flagged above, discussing the different institutional competencies of the legislature, the judiciary, professional organizations, and the defense bar in responding to this lack of standards. For the Washington & Lee Gideon Symposium, I plan to build upon this initial work, with a thesis that there is a “disruptive” role that defense counsel should play in the misdemeanor crisis. By “disruptive,” I mean that the criminal defense bar has a particular role to play in forcing the hand of the other institutional actors – legislators, prosecutors, judges – in order to protect clients from the lower criminal courts. This role is in pushing the boundaries of the system, so that it can no longer handle the volume of misdemeanors currently flowing through.
How can defense counsel push those boundaries? The core role of defense counsel, as articulated in Powell v. Alabama, Gideon and the Argersinger line of cases (finding a Sixth Amendment right to counsel only for those misdemeanors where the defendant is sentenced to incarceration), is to protect innocent individuals against wrongful incarceration. Protection against loss of life in capital cases, and liberty, in all others, is thus the cornerstone of the defender’s role. In the post-Padilla world, however, there is a strong argument for a broader interpretation of counsel’s role, one that protects clients from any serious consequence of a criminal conviction. Any misdemeanor conviction has serious, lasting consequences, particularly relative to the likely penal sanction. In this light, the defender role in the lower criminal courts should serve a different function, or at least a function in addition to the wrongful-incarceration protective role. That function is to promote systemic change in the lower courts, to push the boundaries of the system’s capacity (when the client, fully informed and with true voluntariness, chooses that path) so that the system cannot continue to function in the callously summary and expeditious manner it now does.
That article will explore a number of ways in which defense counsel might disrupt the misdemeanor processing system. Primary among these is defense counsel’s obligation to fully inform clients about the severe and lasting consequences of any criminal conviction, however minor, and an obligation to give clients the space to make a truly voluntary decision about whether to plead guilty or go to trial. Giving clients that space has informational content, meaning that counsel must fully counsel clients about both the direct penal and any serious so-called “collateral” consequences relevant to that client. Giving clients that space also has substantive content. For example, in public order offense cases where the police testimony is usually the only evidence, the defender’s role may be working to gain access to – and systematically collect and disseminate—information about testifying police officers. In some types of cases, the role may be requesting and litigating for access to expert testimony, something very rarely granted in misdemeanor cases. It may be convincing judges to exercise their inherent authority to authorize early, broad discovery, particularly in cases where there is an early plea offer on the table.
Giving individuals facing misdemeanor charges space for voluntary decision-making also recognizes that the current misdemeanor system is replete with coercion points, pushing defendants towards quick, uninformed guilty pleas. Defense counsel has an obligation to counter these coercion points. That countering can come in a variety of forms, such as ensuring the client that counsel is fully prepared to try the case, rather than suggesting that a guilty plea is “better” when that suggestion is at least partly based on counsel’s own triage concerns. Only in this way can defenders achieve truly client-centered misdemeanor representation, namely by giving individuals the tools and assistance they need to avoid minor convictions with major consequences.
A broader, forceful, and systemic approach to misdemeanor reform is not outside the boundaries of the ABA Criminal Justice Standards’ “basic rule ... that the lawyer's total loyalty is due to each client in each case.” Indeed, as Monroe Freedman has noted, in critiquing proposals for utilitarian triage in misdemeanor cases, “by honoring their ethical obligations, public defenders would cease to be an essential part of a fraudulent cover-up of the denial of fundamental rights to countless poor people who are caught up in a criminal justice system that is unethical, unconstitutional, and intolerably cruel.” My article for this symposium will situate the misdemeanor disruption claim within literature that considers the role of legal services lawyers and public defenders (poverty lawyers) in advocating for systemic change, including work by Bellows, Feldman, Tremblay, Freedman, and others.
The underlying hope would be that more individuals will choose trial over a guilty plea if counsel helps make that decision viable, in part because individuals will understand the serious nature of involvement in the seemingly “petty” misdemeanor system. In short, there should be more trials in lower courts. The misdemeanor trial has almost disappeared in many jurisdictions, with some high-volume courts gaining more than 95% of all misdemeanor convictions through guilty pleas. This is of course a large part of the misdemeanor crisis, and has allowed the current, overloaded lower courts to continue to function. It has led to a crisis in the legitimacy of the criminal justice system, as the vast majority of individuals who experience that system do so through the processing of a misdemeanor case.
A proactive, client-centered approach to defending misdemeanors would serve many important purposes. First and foremost, this approach would offer an entirely new experience for individuals in lower courts, which in turn might lead to higher future expectations among the poor and minority communities most under the thumb of the misdemeanor system (due to policing and prosecutorial decisions, but also due to defense function and judicial failures). There are potential gains in the areas of procedural justice, and the legitimacy (and perception of legitimacy) of the criminal justice system. In addition, if defense counsel treats misdemeanor seriously, and does not give them the short end of the resource stick, then prosecution offices will be forced to decline prosecution in more cases. This may, in turn, filter down to law enforcement, with the hope that the police will exercise discretion in deciding who they actually put through the system.
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Abbe Smith
Georgetown University
Abbe Smith is Director of the Criminal Defense and Prisoner Advocacy Clinic, Co-Director of the E. Barrett Prettyman Fellowship Program, and Professor of Law at Georgetown University. She joined the Georgetown faculty in 1996. Prior to Georgetown, Professor Smith was Deputy Director of the Criminal Justice Institute at Harvard Law School, and a Clinical Instructor and Lecturer on Law at Harvard. Professor Smith has also taught at the City University New York School of Law, Temple University School of Law, American University Washington College of Law, and the University of Melbourne Law School (Australia), where she was a Senior Fulbright Scholar in 2005-06. Professor Smith teaches and writes on criminal defense, legal ethics, juvenile justice, and clinical legal education. In addition to numerous law journal articles, she is the author of Case of a Lifetime: A Criminal Defense Lawyer’s Story (Palgrave MacMillan, 2008), co-author with Monroe Freedman of Understanding Lawyers’ Ethics (4th ed., Lexis-Nexis, 2010), co-editor with Monroe Freedman of How Can You Represent Those People: Criminal Defense Stories (forthcoming, 2013), and co-author with Charles Ogletree, et al. of Beyond the Rodney King Story: An Investigation of Police Conduct In Minority Communities (Northeastern University Press, 1994). Professor Smith began her legal career at the Defender Association of Philadelphia, where she was an Assistant Defender, a member of the Special Defense Unit, and a Senior Trial Attorney from 1982 to 1990. She continues to be actively engaged in indigent defense—as both a clinical supervisor and member of the Criminal Justice Act panel for the DC Superior Court—and frequently presents at public defender and legal aid training programs in the United States and abroad. Professor Smith is on the Board of Directors of The Bronx Defenders and the National Juvenile Defender Center, and a longtime member of the National Association of Criminal Defense Lawyers, the American Civil Liberties Union, and the National Lawyers Guild. Court. In 2010, she was elected to the American Board of Criminal Lawyers, an exclusive national society for outstanding criminal trial lawyers. View Paper Abstract
Criminal Defense in a Time of Mass Incarceration
Abstract: This paper will discuss criminal defense in a country that exalts access to justice as a constitutional matter while at the same time locking up more people than any other country on earth. Fifty years after Gideon, there is as much need as ever for capable, devoted, well-resourced counsel for the indigent accused -- and an even greater need for willing and able lawyers for the convicted and imprisoned. That we continue to fall short on both fronts is part of the tragic, complicated legacy of a great Supreme Court decision.
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Robin Steinberg
Bronx Defenders
Honored by the National Legal Aid and Defender Association for her, “exceptional vision, devotion and service in the quest for equal justice,” by the New York Bar Association for her, “outstanding contribution to the delivery of defense services,” and awarded Harvard Law School’s Wasserstein Fellowship in recognition of her “outstanding contributions and dedication to public interest law,” Robin Steinberg is a leader and a pioneer in the field of indigent defense. A 1982 graduate of New York University School of Law, Robin has been a public defender her entire career. Starting as a criminal trial lawyer with the Legal Aid of Society, continuing her career as a founding member and deputy director of The Neighborhood Defender Service of Harlem, and ultimately creating The Bronx Defenders in 1997, Robin has extensive experience in every aspect of public defense – from representing individual clients to creating a non-profit organization. Today, Robin advocates nationally and internationally for holistic representation and the community defender movement, delivering papers, conducting trainings, and hosting visitors from around the world. She currently serves on the Boards of Directors for the New York State Defender Associations, Roger Williams Law School, and the Journal of Court Innovation, as well as on the New York City Alternative to Incarceration Board and the Center for Court Innovation Internal Review Board. View Paper Abstract
In this paper, I will define the concept of “holistic defense” and I will argue that, 50 years after Gideon v. Wainwright, a holistic approach is necessary for effective public defense work in low-income communities across the country. While Padilla v. Kentucky (2010) required public defender offices to consider some of the “collateral consequences” of criminal proceedings, the Bronx Defenders has long advocated for a comprehensive strategy of public defense in New York City. Moreover, the expansion of the criminal justice system in poor communities over the past few decades has presented new challenges for indigent defendants, further underscoring the need for change in public defender organizations.
I will start by giving a brief history of the Bronx Defenders, and how its attorneys’ efforts to improve outcomes for their clients evolved into its groundbreaking “holistic defense” model. Next, I will define the term “holistic defense” and demonstrate how this model is unique from “client-centered defense,” as developed by Gary Bellow in the late 1970s, and “community-oriented defense,” which became popular among public defender offices in the 1990s. Holistic defense embraces both of those approaches – and goes a step further. Four “pillars” are essential for the holistic defense model: 1) Seamless access to legal and non-legal services that meet client needs; 2) Dynamic, interdisciplinary communication; 3) Advocates with an interdisciplinary skill set; and 4) A robust understanding of, and connection to, the community served. For each pillar, I will provide examples that illustrate its importance, and I will demonstrate that all four pillars must be met for a public defender office to be considered truly “holistic.” Examples will be drawn primarily from the experiences of Bronx Defenders attorneys and clients. In addition, I will present the preliminary results of an external study measuring the Bronx Defenders’ success rates, and I will discuss client satisfaction studies performed internally.
Finally, I will discuss how holistic defense is a strategy that can be applied on a spectrum at public defender offices in diverse communities around the country. Since 2010, the Bronx Defenders’ Center for Holistic Defense has trained public defender offices in nine different jurisdictions, including Washoe County, Nevada, Knox County, Tennessee, and the Tribal Defender Office for the Confederated Salish and Kootenai Tribes in Pablo, Montana. I will present testimonials and quantitative data from a selection of these offices, highlighting how their adoption of a holistic defense model has impacted their clients.
Holistic Defense, which ensures the best outcomes for clients, their families, and their communities, should be the ultimate goal for public defender offices in the 21st Century.
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Ron Wright
Wake Forest University
Ron Wright is one of the nation's best known criminal justice scholars. He is the co-author of two casebooks in criminal procedure and sentencing; his empirical research concentrates on the work of criminal prosecutors. He is a board member of the Prosecution and Racial Justice Project of the Vera Institute of Justice, and has been an advisor or board member for Families Against Mandatory Minimum Sentences (FAMM), North Carolina Prisoner Legal Services, Inc., and the Winston-Salem Citizens' Police Review Board. Prior to joining the faculty, he was a trial attorney with the U.S. Department of Justice, prosecuting antitrust and other white-collar criminal cases. View Paper Abstract
ABSTRACT FOR “Defense Counsel Moneyball: A Demonstration Project” By Ronald F. Wright and Ralph A. Peeples
The book and movie “Moneyball” portray the general manager of a baseball team who de-emphasized the insights of scouts as on-the-scene evaluators of a player’s talents, and looked instead to statistical measures of player quality. By using this atypical evaluation technique, the small-market (and low-budget) team was able to identify high-quality players that escaped the attention of other teams.
We take this idea from baseball into the criminal courts. In this article, we pose the question of whether criminal defense organizations -- either private firms or public defender offices -- could meaningfully evaluate the skills of their attorneys through the use of metrics, rather than relying so heavily on the in-person observation of their work in the courtroom. The paper asks whether managers of criminal defense attorneys could assemble performance statistics, based on reasonably accessible data, that would help them evaluate the attorneys and improve their work.
The paper explores several potential measures of defense counsel quality. The search for a meaningful metric begins by observing that public defender services have already begun tracking agency-wide statistics, such as rates of pre-trial incarceration. We ultimately reject these current measures in favor of a metric focused on the sentencing reductions obtained by the defense lawyer. Other studies of defense attorney effectiveness have also used this measure.
After selecting a measurement strategy, we explore the data limitations that have so far prevented this measure from becoming a useful management tool in defender organizations. Rather than simply assert that a rating system is possible, this paper shows its feasibility. We employ data from the North Carolina courts as a demonstration project to illustrate how an office might develop a rating system based on sentencing reductions.
The article closes with a discussion of how the managers of defense organizations could properly use such a rating system. We also explore various misuses of the ratings that managers should guard against. Finally, we speculate about possible collaboration between scholars and practitioners in developing workable rating systems.
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The symposium took place on November 8-9 and was a great success. The Law Review and Law Center would like to thank the NACDL, the participants, and all the Law Review and W&L Law staff who made the event possible. The video of the symposium will be available through this website, and the Law Review looks forward to publishing the robust exchange of ideas on Gideon and the fundamental right to indigent defense in its symposium issue in Summer 2013.
