Feb 22 (Class 5):
Defense Lawyering and Gideon’s Unsettled Legacy
Criminal defense lawyers, particularly those appointed to represent the indigent, would seem
uniquely well positioned to work for criminal justice reform. Unfortunately, since the Supreme
Court’s landmark decision in Gideon v. Wainwright, the promise of effective assistance of
counsel for every accused has remained unfulfilled: in many jurisdictions, public defenders are
grossly underfunded, unqualified, or otherwise unable to serve as dedicated advocates for their
clients. And too often, the supposed availability of counsel, or the provision of essentially
incompetent counsel, is used to legitimate a state-dominated process that lacks substantive
fairness and accuracy. This class considers the mixed blessing of Gideon; states’ continued
resistance to its mandates; and courts’ ongoing regulation of appointed counsel, which focuses
primarily on loyalty and diligence, with some limited efforts to engage actual competence. How
has the system realized or failed to realize Gideon’s promise, and how have various stakeholders
abetted this success or failure? What strategies can be used to bolster the provision of quality
public defense? How does the existence of public defense help or hinder reform?
Gideon v. Wainwright, 372 U.S. 335 (1963) excerpts
Strickland v. Washington, 466 U.S. 668 (1984) excerpts
Stephen B. Bright & Sia M. Sanneh, Fifty Years of Defiance and Resistance After
Gideon, 122 Yale L.J. 2150 (2013), pp. 2160-2174
Missouri v. Frye, 132 S. Ct. 1399 (2011) excerpts
Padilla v. Kentucky, 559 U.S. 356 (2010) excerpts
Robin Steinberg, Addressing Racial Disparity in the Criminal Justice System Through
Holistic Defense, CHAMPION, July 2013, at 51
Tina Peng, I’m a Public Defender. It’s impossible for me to do a good job representing my
clients., THE WASHINGTON POST, Sep. 3, 2015
Excerpt of Complaint in Yarls v. Bunton, 16 Civ. 31 (Jan. 14, 2016)
Eli Hager, Why Getting Sued Could Be the Best Thing to Happen to New Orleans’ Public
Defenders, The Marshall Project (Jan. 28, 2016)
Paul D. Butler, Poor People Lose: Gideon and the Critique of Rights, 122 Yale L.J. 2176 (2013)
Supreme Court of the United States
Clarence Earl GIDEON, Petitioner,
v.
Louie L. WAINWRIGHT, Director, Division
of Corrections.
Decided March 18, 1963
Mr. Justice BLACK delivered the opinion of the
Court.
Petitioner was charged in a Florida state court
with having broken and entered a poolroom
with intent to commit a misdemeanor. This
offense is a felony under Florida law. Appearing
in court without funds and without a lawyer,
petitioner asked the court to appoint counsel for
him, whereupon the following colloquy took
place:
‘The COURT: Mr. Gideon, I am sorry, but I
cannot appoint Counsel to represent you in this
case. Under the laws of the State of Florida, the
only time the Court can appoint Counsel to
represent a Defendant is when that person is
charged with a capital offense. I am sorry, but I
will have to deny your request to appoint
Counsel to defend you in this case.
‘The DEFENDANT: The United States
Supreme Court says I am entitled to be
represented by Counsel.’
Put to trial before a jury, Gideon conducted his
defense about as well as could be expected from
a layman. He made an opening statement to the
jury, cross-examined the State’s witnesses,
presented witnesses in his own defense,
declined to testify himself, and made a short
argument ‘emphasizing his innocence to the
charge contained in the Information filed in this
case.’ The jury returned a verdict of guilty, and
petitioner was sentenced to serve five years in
the state prison. Later, petitioner filed in the
Florida Supreme Court this habeas corpus
petition attacking his conviction and sentence on
the ground that the trial court’s refusal to
appoint counsel for him denied him rights
‘guaranteed by the Constitution and the Bill of
Rights by the United States Government.’1
Treating the petition for habeas corpus as
properly before it, the State Supreme Court,
‘upon consideration thereof’ but without an
opinion, denied all relief. Since 1942, when
Betts v. Brady was decided by a divided Court,
the problem of a defendant’s federal
constitutional right to counsel in a state court
has been a continuing source of controversy and
litigation in both state and federal courts. To
give this problem another review here, we
granted certiorari. Since Gideon was proceeding
in forma pauperis, we appointed counsel to
represent him and requested both sides to
discuss in their briefs and oral arguments the
following: ‘Should this Court’s holding in Betts
v. Brady be reconsidered?’
*
*
*
II.
The Sixth Amendment provides, ‘In all criminal
prosecutions, the accused shall enjoy the right *
* * to have the Assistance of Counsel for his
defence.’ We have construed this to mean that
in federal courts counsel must be provided for
defendants unable to employ counsel unless the
right is competently and intelligently waived.
Betts argued that this right is extended to
indigent defendants in state courts by the
Fourteenth Amendment. In response the Court
stated that, while the Sixth Amendment laid
down ‘no rule for the conduct of the states, the
question recurs whether the constraint laid by
the amendment upon the national courts
expresses a rule so fundamental and essential to
a fair trial, and so, to due process of law, that it
is made obligatory upon the states by the
Fourteenth Amendment.’ In order to decide
whether the Sixth Amendment’s guarantee of
counsel is of this fundamental nature, the Court
in Betts set out and considered ‘(r)elevant data
on the subject * * * afforded by constitutional
and statutory provisions subsisting in the
colonies and the states prior to the inclusion of
the Bill of Rights in the national Constitution,
and in the constitutional, legislative, and judicial
history of the states to the present date.’ On the
basis of this historical data the Court concluded
that ‘appointment of counsel is not a
fundamental right, essential to a fair trial.’ It
was for this reason the Betts Court refused to
accept the contention that the Sixth
Amendment’s guarantee of counsel for indigent
federal defendants was extended to or, in the
words of that Court, ‘made obligatory upon the
states by the Fourteenth Amendment’. Plainly,
had the Court concluded that appointment of
counsel for an indigent criminal defendant was
‘a fundamental right, essential to a fair trial,’ it
would have held that the Fourteenth
Amendment requires appointment of counsel in
a state court, just as the Sixth Amendment
requires in a federal court.
We think the Court in Betts had ample
precedent for acknowledging that those
guarantees of the Bill of Rights which are
fundamental safeguards of liberty immune from
federal abridgment are equally protected against
state invasion by the Due Process Clause of the
Fourteenth Amendment. This same principle
was recognized, explained, and applied in
Powell v. Alabama, a case upholding the right
of counsel, where the Court held that despite
sweeping language to the contrary in Hurtado v.
California,
the
Fourteenth
Amendment
‘embraced’ those “fundamental principles of
liberty and justice which lie at the base of all our
civil and political institutions,” even though
they had been ‘specifically dealt with in another
part of the Federal Constitution.’ In many cases
other than Powell and Betts, this Court has
looked to the fundamental nature of original Bill
of Rights guarantees to decide whether the
Fourteenth Amendment makes them obligatory
on the States. Explicitly recognized to be of this
‘fundamental nature’ and therefore made
immune from state invasion by the Fourteenth,
or some part of it, are the First Amendment’s
freedoms of speech, press, religion, assembly,
association, and petition for redress of
grievances. For the same reason, though not
always in precisely the same terminology, the
Court has made obligatory on the States the
Fifth Amendment’s command that private
property shall not be taken for public use
without just compensation, the Fourth
Amendment’s prohibition of unreasonable
searches and seizures, and the Eighth’s ban on
cruel and unusual punishment.
*
*
*
We think the Court in Betts was wrong,
however, in concluding that the Sixth
Amendment’s guarantee of counsel is not one of
these fundamental rights. Ten years before Betts
v. Brady, this Court, after full consideration of
all the historical data examined in Betts, had
unequivocally declared that ‘the right to the aid
of counsel is of this fundamental character.’
Powell v. Alabama. While the Court at the close
of its Powell opinion did by its language, as this
Court frequently does, limit its holding to the
particular facts and circumstances of that case,
its conclusions about the fundamental nature of
the right to counsel are unmistakable. Several
years later, in 1936, the Court reemphasized
what it had said about the fundamental nature of
the right to counsel in this language:
‘We concluded that certain fundamental rights,
safeguarded by the first eight amendments
against federal action, were also safeguarded
against state action by the due process of law
clause of the Fourteenth Amendment, and
among them the fundamental right of the
accused to the aid of counsel in a criminal
prosecution.’ Grosjean v. American Press Co.
And again in 1938 this Court said:
‘(The assistance of counsel) is one of the
safeguards of the Sixth Amendment deemed
necessary to insure fundamental human rights of
life and liberty. * * * The Sixth Amendment
stands as a constant admonition that if the
constitutional safeguards it provides be lost,
justice will not ‘still be done.”
In light of these and many other prior decisions
of this Court, it is not surprising that the Betts
Court, when faced with the contention that ‘one
charged with crime, who is unable to obtain
counsel, must be furnished counsel by the state,’
conceded that ‘(e)xpressions in the opinions of
this court lend color to the argument * * *’ The
fact is that in deciding as it did—that
‘appointment of counsel is not a fundamental
right, essential to a fair trial’—the Court in Betts
v. Brady made an abrupt break with its own
well-considered precedents. In returning to these
old precedents, sounder we believe than the
new, we but restore constitutional principles
established to achieve a fair system of justice.
Not only these precedents but also reason and
reflection require us to recognize that in our
adversary system of criminal justice, any person
haled into court, who is too poor to hire a
lawyer, cannot be assured a fair trial unless
counsel is provided for him. This seems to us to
be an obvious truth. Governments, both state
and federal, quite properly spend vast sums of
money to establish machinery to try defendants
accused of crime. Lawyers to prosecute are
everywhere deemed essential to protect the
public’s interest in an orderly society. Similarly,
there are few defendants charged with crime,
few indeed, who fail to hire the best lawyers
they can get to prepare and present their
defenses. That government hires lawyers to
prosecute and defendants who have the money
hire lawyers to defend are the strongest
indications of the wide—spread belief that
lawyers in criminal courts are necessities, not
luxuries. The right of one charged with crime to
counsel may not be deemed fundamental and
essential to fair trials in some countries, but it is
in ours. From the very beginning, our state and
national constitutions and laws have laid great
emphasis on procedural and substantive
safeguards designed to assure fair trials before
impartial tribunals in which every defendant
stands equal before the law. This noble ideal
cannot be realized if the poor man charged with
crime has to face his accusers without a lawyer
to assist him. A defendant’s need for a lawyer is
nowhere better stated than in the moving words
of Mr. Justice Sutherland in Powell v. Alabama:
‘The right to be heard would be, in many cases,
of little avail if it did not comprehend the right
to be heard by counsel. Even the intelligent and
educated layman has small and sometimes no
skill in the science of law. If charged with
crime, he is incapable, generally, of determining
for himself whether the indictment is good or
bad. He is unfamiliar with the rules of evidence.
Left without the aid of counsel he may be put on
trial without a proper charge, and convicted
upon incompetent evidence, or evidence
irrelevant to the issue or otherwise inadmissible.
He lacks both the skill and knowledge
adequately to prepare his defense, even though
he have a perfect one. He requires the guiding
hand of counsel at every step in the proceedings
against him. Without it, though he be not guilty,
he faces the danger of conviction because he
does not know how to establish his innocence.’
The Court in Betts v. Brady departed from the
sound wisdom upon which the Court’s holding
in Powell v. Alabama rested. Florida, supported
by two other States, has asked that Betts v.
Brady be left intact. Twenty-two States, as
friends of the Court, argue that Betts was ‘an
anachronism when handed down’ and that it
should now be overruled. We agree.
The judgment is reversed and the cause is
remanded to the Supreme Court of Florida for
further action not inconsistent with this opinion.
104 S.Ct. 2052
Supreme Court of the United States
Charles E. STRICKLAND,
Superintendent, Florida State Prison, et
al., Petitioners
v.
David Leroy WASHINGTON.
Decided May 14, 1984.
Justice O’CONNOR delivered the opinion of
the Court.
This case requires us to consider the proper
standards for judging a criminal defendant’s
contention that the Constitution requires a
conviction or death sentence to be set aside
because counsel’s assistance at the trial or
sentencing was ineffective.
I
A
During a 10–day period in September 1976,
respondent planned and committed three groups
of crimes, which included three brutal stabbing
murders, torture, kidnaping, severe assaults,
attempted murders, attempted extortion, and
theft. After his two accomplices were arrested,
respondent surrendered to police and voluntarily
gave a lengthy statement confessing to the third
of the criminal episodes. The State of Florida
indicted respondent for kidnaping and murder
and appointed an experienced criminal lawyer to
represent him.
Counsel actively pursued pretrial motions and
discovery. He cut his efforts short, however, and
he experienced a sense of hopelessness about
the case, when he learned that, against his
specific advice, respondent had also confessed
to the first two murders. By the date set for trial,
respondent was subject to indictment for three
counts of first-degree murder and multiple
counts of robbery, kidnaping for ransom,
breaking and entering and assault, attempted
murder, and conspiracy to commit robbery.
Respondent waived his right to a jury trial,
again acting against counsel’s advice, and
pleaded guilty to all charges, including the three
capital murder charges.
In the plea colloquy, respondent told the trial
judge that, although he had committed a string
of burglaries, he had no significant prior
criminal record and that at the time of his
criminal spree he was under extreme stress
caused by his inability to support his family. He
also stated, however, that he accepted
responsibility for the crimes. The trial judge told
respondent that he had “a great deal of respect
for people who are willing to step forward and
admit their responsibility” but that he was
making no statement at all about his likely
sentencing decision.
Counsel advised respondent to invoke his right
under Florida law to an advisory jury at his
capital sentencing hearing. Respondent rejected
the advice and waived the right. He chose
instead to be sentenced by the trial judge
without a jury recommendation.
In preparing for the sentencing hearing, counsel
spoke with respondent about his background.
He also spoke on the telephone with
respondent’s wife and mother, though he did not
follow up on the one unsuccessful effort to meet
with them. He did not otherwise seek out
character witnesses for respondent. Nor did he
request a psychiatric examination, since his
conversations with his client gave no indication
that respondent had psychological problems.
Counsel decided not to present and hence not to
look further for evidence concerning
respondent’s character and emotional state. That
decision reflected trial counsel’s sense of
hopelessness about overcoming the evidentiary
effect of respondent’s confessions to the
gruesome crimes. It also reflected the judgment
that it was advisable to rely on the plea colloquy
for evidence about respondent’s background and
about his claim of emotional stress: the plea
colloquy communicated sufficient information
about these subjects, and by forgoing the
opportunity to present new evidence on these
subjects, counsel prevented the State from
cross-examining respondent on his claim and
from putting on psychiatric evidence of its own.
Counsel also excluded from the sentencing
hearing other evidence he thought was
potentially damaging. He successfully moved to
exclude respondent’s “rap sheet.” Because he
judged that a presentence report might prove
more detrimental than helpful, as it would have
included respondent’s criminal history and
thereby would have undermined the claim of no
significant history of criminal activity, he did
not request that one be prepared.
At the sentencing hearing, counsel’s strategy
was based primarily on the trial judge’s remarks
at the plea colloquy as well as on his reputation
as a sentencing judge who thought it important
for a convicted defendant to own up to his
crime. Counsel argued that respondent’s
remorse and acceptance of responsibility
justified sparing him from the death penalty.
Counsel also argued that respondent had no
history of criminal activity and that respondent
committed the crimes under extreme mental or
emotional disturbance, thus coming within the
statutory list of mitigating circumstances. He
further argued that respondent should be spared
death because he had surrendered, confessed,
and offered to testify against a codefendant and
because respondent was fundamentally a good
person who had briefly gone badly wrong in
extremely stressful circumstances. The State put
on evidence and witnesses largely for the
purpose of describing the details of the crimes.
Counsel did not cross-examine the medical
experts who testified about the manner of death
of respondent’s victims.
The trial judge found several aggravating
circumstances with respect to each of the three
murders. He found that all three murders were
especially heinous, atrocious, and cruel, all
involving repeated stabbings. . . .
With respect to mitigating circumstances, the
trial judge made the same findings for all three
capital murders. . . . .[E]ven if respondent had
no significant history of criminal activity, the
aggravating circumstances “would still clearly
far outweigh” that mitigating factor. . . .
In short, the trial judge found numerous
aggravating circumstances and no (or a single
comparatively
insignificant)
mitigating
circumstance. . . . He therefore sentenced
respondent to death on each of the three counts
of murder . . . . The Florida Supreme Court
upheld the convictions and sentences on direct
appeal.
B
Respondent subsequently sought collateral relief
in state court on numerous grounds, among
them that counsel had rendered ineffective
assistance at the sentencing proceeding.
Respondent challenged counsel’s assistance in
six respects. He asserted that counsel was
ineffective because he failed to move for a
continuance to prepare for sentencing, to request
a psychiatric report, to investigate and present
character witnesses, to seek a presentence
investigation report, to present meaningful
arguments to the sentencing judge, and to
investigate the medical examiner’s reports or
cross-examine the medical experts. In support of
the claim, respondent submitted 14 affidavits
from friends, neighbors, and relatives stating
that they would have testified if asked to do so.
He also submitted one psychiatric report and
one psychological report stating that respondent,
though not under the influence of extreme
mental or emotional disturbance, was
“chronically frustrated and depressed because of
his economic dilemma” at the time of his
crimes. * * * Applying the standard for
ineffectiveness claims articulated by the Florida
Supreme Court in Knight v. State the trial court
concluded that respondent had not shown that
counsel’s assistance reflected any substantial
and serious deficiency measurably below that of
competent counsel that was likely to have
affected the outcome of the sentencing
proceeding. . . .
II
In a long line of cases . . . this Court has
recognized that the Sixth Amendment right to
counsel exists, and is needed, in order to protect
the fundamental right to a fair trial. The
Constitution guarantees a fair trial through the
Due Process Clauses, but it defines the basic
elements of a fair trial largely through the
several provisions of the Sixth Amendment,
including the Counsel Clause . . . .
C
Respondent next filed a petition for a writ of
habeas corpus in the United States District
Court for the Southern District of Florida. . . . .
The court . . . denied the petition for a writ of
habeas corpus.
Thus, a fair trial is one in which evidence
subject to adversarial testing is presented to an
impartial tribunal for resolution of issues
defined in advance of the proceeding. The right
to counsel plays a crucial role in the adversarial
system embodied in the Sixth Amendment,
since access to counsel’s skill and knowledge is
necessary to accord defendants the “ample
opportunity to meet the case of the prosecution”
to which they are entitled. . . . That a person
who happens to be a lawyer is present at trial
alongside the accused, however, is not enough
to satisfy the constitutional command. The Sixth
Amendment recognizes the right to the
assistance of counsel because it envisions
counsel’s playing a role that is critical to the
ability of the adversarial system to produce just
results. An accused is entitled to be assisted by
an attorney, whether retained or appointed, who
plays the role necessary to ensure that the trial is
fair.
On appeal, a panel of the United States Court of
Appeals for the Fifth Circuit affirmed in part,
vacated in part, and remanded with instructions
to apply to the particular facts the framework for
analyzing ineffectiveness claims that it
developed in its opinion. * * *
D
Petitioners, who are officials of the State of
Florida, filed a petition for a writ of certiorari
seeking review of the decision of the Court of
Appeals. The petition presents a type of Sixth
Amendment claim that this Court has not
previously considered in any generality. The
Court has considered Sixth Amendment claims
based on actual or constructive denial of the
assistance of counsel altogether, as well as
claims based on state interference with the
ability of counsel to render effective assistance
to the accused. With the exception of Cuyler v.
Sullivan, however, which involved a claim that
counsel’s assistance was rendered ineffective by
a conflict of interest, the Court has never
directly and fully addressed a claim of “actual
ineffectiveness” of counsel’s assistance in a case
going to trial. * * *
For that reason, the Court has recognized that
“the right to counsel is the right to the effective
assistance of counsel.” McMann v. Richardson.
Government violates the right to effective
assistance when it interferes in certain ways
with the ability of counsel to make independent
decisions about how to conduct the defense.
See, e.g., Geders v. United States (bar on
attorney-client consultation during overnight
recess); Herring v. New York (bar on
summation at bench trial); Brooks v. Tennessee,
(requirement that defendant be first defense
witness); Ferguson v. Georgia (bar on direct
examination of defendant). Counsel, however,
can also deprive a defendant of the right to
effective assistance, simply by failing to render
“adequate legal assistance,” Cuyler v. Sullivan,
(actual conflict of interest adversely affecting
lawyer’s performance renders assistance
ineffective).
The Court has not elaborated on the meaning of
the constitutional requirement of effective
assistance in the latter class of cases—that is,
those
presenting
claims
of
“actual
ineffectiveness.” In giving meaning to the
requirement, however, we must take its
purpose—to ensure a fair trial—as the guide.
The benchmark for judging any claim of
ineffectiveness must be whether counsel’s
conduct so undermined the proper functioning
of the adversarial process that the trial cannot be
relied on as having produced a just result. * * *
III
A convicted defendant’s claim that counsel’s
assistance was so defective as to require reversal
of a conviction or death sentence has two
components. First, the defendant must show that
counsel’s performance was deficient. This
requires showing that counsel made errors so
serious that counsel was not functioning as the
“counsel” guaranteed the defendant by the Sixth
Amendment. Second, the defendant must show
that the deficient performance prejudiced the
defense. This requires showing that counsel’s
errors were so serious as to deprive the
defendant of a fair trial, a trial whose result is
reliable. Unless a defendant makes both
showings, it cannot be said that the conviction
or death sentence resulted from a breakdown in
the adversary process that renders the result
unreliable. * * *
More specific guidelines are not appropriate.
The Sixth Amendment refers simply to
“counsel,”
not
specifying
particular
requirements of effective assistance. It relies
instead on the legal profession’s maintenance of
standards sufficient to justify the law’s
presumption that counsel will fulfill the role in
the adversary process that the Amendment
envisions. The proper measure of attorney
performance remains simply reasonableness
under prevailing professional norms.
Representation of a criminal defendant entails
certain basic duties. Counsel’s function is to
assist the defendant, and hence counsel owes the
client a duty of loyalty, a duty to avoid conflicts
of interest. From counsel’s function as assistant
to the defendant derive the overarching duty to
advocate the defendant’s cause and the more
particular duties to consult with the defendant
on important decisions and to keep the
defendant informed of important developments
in the course of the prosecution. Counsel also
has a duty to bring to bear such skill and
knowledge as will render the trial a reliable
adversarial testing process. * * *
Judicial scrutiny of counsel’s performance must
be highly deferential. It is all too tempting for a
defendant to second-guess counsel’s assistance
after conviction or adverse sentence, and it is all
too easy for a court, examining counsel’s
defense after it has proved unsuccessful, to
conclude that a particular act or omission of
counsel was unreasonable. . . . There are
countless ways to provide effective assistance in
any given case. Even the best criminal defense
attorneys would not defend a particular client in
the same way. * * *
A convicted defendant making a claim of
ineffective assistance must identify the acts or
omissions of counsel that are alleged not to have
been the result of reasonable professional
judgment. The court must then determine
whether, in light of all the circumstances, the
identified acts or omissions were outside the
wide range of professionally competent
assistance. In making that determination, the
court should keep in mind that counsel’s
function,
as
elaborated
in
prevailing
professional norms, is to make the adversarial
testing process work in the particular case. At
the same time, the court should recognize that
counsel is strongly presumed to have rendered
adequate assistance and made all significant
decisions in the exercise of reasonable
professional judgment. * * *
In any ineffectiveness case, a particular decision
not to investigate must be directly assessed for
reasonableness in all the circumstances,
applying a heavy measure of deference to
counsel’s judgments. * * *
B
An error by counsel, even if professionally
unreasonable, does not warrant setting aside the
judgment of a criminal proceeding if the error
had no effect on the judgment. . . . Accordingly,
any deficiencies in counsel’s performance must
be prejudicial to the defense in order to
constitute ineffective assistance under the
Constitution. * * *
It is not enough for the defendant to show that
the errors had some conceivable effect on the
outcome of the proceeding. Virtually every act
or omission of counsel would meet that test . . . .
[T]he appropriate test for prejudice finds its
roots in the test for materiality of exculpatory
information not disclosed to the defense by the
prosecution . . . . The defendant must show that
there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the
proceeding would have been different. A
reasonable probability is a probability sufficient
to undermine confidence in the outcome. * * *
If it is easier to dispose of an ineffectiveness
claim on the ground of lack of sufficient
prejudice, which we expect will often be so, that
course should be followed. Courts should strive
to ensure that ineffectiveness claims not become
so burdensome to defense counsel that the entire
criminal justice system suffers as a result. * * *
V
Having articulated general standards for judging
ineffectiveness claims, we think it useful to
apply those standards to the facts of this case in
order to illustrate the meaning of the general
principles. . . . Application of the governing
principles is not difficult in this case. The facts
as described above make clear that the conduct
of respondent’s counsel at and before
respondent’s sentencing proceeding cannot be
found unreasonable. * * *
With respect to the prejudice component, the
lack of merit of respondent’s claim is even more
stark. * * *
The state courts properly concluded that the
ineffectiveness claim was meritless without
holding an evidentiary hearing.
Failure to make the required showing of either
deficient performance or sufficient prejudice
defeats the ineffectiveness claim. Here there is a
double failure. More generally, respondent has
made no showing that the justice of his sentence
was rendered unreliable by a breakdown in the
adversary process caused by deficiencies in
counsel’s assistance. Respondent’s sentencing
proceeding was not fundamentally unfair.
We conclude, therefore, that the District Court
properly declined to issue a writ of habeas
corpus. The judgment of the Court of Appeals is
accordingly
Reversed.
*
*
*
Justice MARSHALL, dissenting.
The Sixth and Fourteenth Amendments
guarantee a person accused of a crime the right
to the aid of a lawyer in preparing and
presenting his defense. It has long been settled
that “the right to counsel is the right to the
effective assistance of counsel.” The state and
lower federal courts have developed standards
for distinguishing effective from inadequate
assistance. Today, for the first time, this Court
attempts to synthesize and clarify those
standards. For the most part, the majority’s
efforts are unhelpful. Neither of its two principal
holdings seems to me likely to improve the
adjudication of Sixth Amendment claims. And,
in its zeal to survey comprehensively this field
of doctrine, the majority makes many other
generalizations and suggestions that I find
unacceptable. Most importantly, the majority
fails to take adequate account of the fact that the
locus of this case is a capital sentencing
proceeding. Accordingly, I join neither the
Court’s opinion nor its judgment.
I
The opinion of the Court revolves around two
holdings. First, the majority ties the
constitutional minima of attorney performance
to a simple “standard of reasonableness.”
Second, the majority holds that only an error of
counsel that has sufficient impact on a trial to
“undermine confidence in the outcome” is
grounds for overturning a conviction. I disagree
with both of these rulings.
A
My objection to the performance standard
adopted by the Court is that it is so malleable
that, in practice, it will either have no grip at all
or will yield excessive variation in the manner
in which the Sixth Amendment is interpreted
and applied by different courts. To tell lawyers
and the lower courts that counsel for a criminal
defendant must behave “reasonably” and must
act like “a reasonably competent attorney,” is to
tell them almost nothing. In essence, the
majority has instructed judges called upon to
assess claims of ineffective assistance of
counsel to advert to their own intuitions
regarding what constitutes “professional”
representation, and has discouraged them from
trying to develop more detailed standards
governing the performance of defense counsel.
In my view, the Court has thereby not only
abdicated its own responsibility to interpret the
Constitution, but also impaired the ability of the
lower courts to exercise theirs.
The debilitating ambiguity of an “objective
standard of reasonableness” in this context is
illustrated by the majority’s failure to address
important issues concerning the quality of
representation mandated by the Constitution. It
is an unfortunate but undeniable fact that a
person of means, by selecting a lawyer and
paying him enough to ensure he prepares
thoroughly, usually can obtain better
representation than that available to an indigent
defendant, who must rely on appointed counsel,
who, in turn, has limited time and resources to
devote to a given case. Is a “reasonably
competent attorney” a reasonably competent
adequately paid retained lawyer or a reasonably
competent appointed attorney? It is also a fact
that the quality of representation available to
ordinary defendants in different parts of the
country varies significantly. Should the standard
of performance mandated by the Sixth
Amendment vary by locale? The majority offers
no clues as to the proper responses to these
questions. * * *
B
I object to the prejudice standard adopted by the
Court for two independent reasons. First, it is
often very difficult to tell whether a defendant
convicted after a trial in which he was
ineffectively represented would have fared
better if his lawyer had been competent.
Seemingly impregnable cases can sometimes be
dismantled by good defense counsel. On the
basis of a cold record, it may be impossible for a
reviewing court confidently to ascertain how the
government’s evidence and arguments would
have stood up against rebuttal and
cross-examination by a shrewd, well-prepared
lawyer. The difficulties of estimating prejudice
after the fact are exacerbated by the possibility
that evidence of injury to the defendant may be
missing from the record precisely because of the
incompetence of defense counsel. In view of all
these impediments to a fair evaluation of the
probability that the outcome of a trial was
affected by ineffectiveness of counsel, it seems
to me senseless to impose on a defendant whose
lawyer has been shown to have been
incompetent the burden of demonstrating
prejudice.
Second and more fundamentally, the assumption
on which the Court’s holding rests is that the
only purpose of the constitutional guarantee of
effective assistance of counsel is to reduce the
chance that innocent persons will be convicted.
In my view, the guarantee also functions to
ensure that convictions are obtained only
through fundamentally fair procedures. The
majority contends that the Sixth Amendment is
not violated when a manifestly guilty defendant
is convicted after a trial in which he was
represented by a manifestly ineffective attorney.
I cannot agree. Every defendant is entitled to a
trial in which his interests are vigorously and
conscientiously advocated by an able lawyer. A
proceeding in which the defendant does not
receive meaningful assistance in meeting the
forces of the State does not, in my opinion,
constitute due process.
that certain constitutional rights are “so basic to
a fair trial that their infraction can never be
treated as harmless error.” Among these rights is
the right to the assistance of counsel at trial. In
my view, the right to effective assistance of
counsel is entailed by the right to counsel, and
abridgment of the former is equivalent to
abridgment of the latter.7 I would thus hold that
a showing that the performance of a defendant’s
lawyer departed from constitutionally prescribed
standards requires a new trial regardless of
whether the defendant suffered demonstrable
prejudice thereby. * * *
II
If counsel had investigated the availability of
mitigating evidence, he might well have decided
to present some such material at the hearing. If
he had done so, there is a significant chance that
respondent would have been given a life
sentence. In my view, those possibilities,
conjoined with the unreasonableness of
counsel’s failure to investigate, are more than
sufficient to establish a violation of the Sixth
Amendment and to entitle respondent to a new
sentencing proceeding.
I respectfully dissent.
In Chapman v. California, we acknowledged
.
STEPHEN B. BRIGHT & SIA M. SANNEH
Fifty Years of Defiance and Resistance After
Gideon v. Wainwright
ABSTRAC T. In its 1963 ruling Gideon v. Wainwright, the Supreme Court declared the right to
a lawyer "fundamental and essential" to fairness in the criminal courts and held that lawyers
must be provided for people who could not afford them so that every person "stands equal
before the law." In later decisions, the Court ruled that a poor person facing any loss of liberty
must have a lawyer "so that the accused may know precisely what he is doing, so that he is fully
aware of the prospect of going to jail or prison, and so that he is treated fairly by the
prosecution." This Essay argues that fifty years later, this right has not been realized. The U.S.
criminal system is not truly adversarial because prosecutors possess broad, unchecked power and
therefore determine results in criminal cases with little or no input from the defense.
Governments have failed to adequately fund defense systems, many judges tolerate or welcome
inadequate representation, and the Supreme Court has refused to require competent
representation, instead adopting a standard of "effective counsel" that hides and perpetuates
deficient representation. In this system, poverty, not justice, dictates outcomes.
AUTHOR S. Stephen B. Bright is Harvey Karp Visiting Lecturer at Law, Yale Law School, and
President and Senior Counsel, Southern Center for Human Rights, Atlanta, Georgia. This Essay
draws upon his first-hand observations of representation of indigents since 1976. Sia M. Sanneh
is Senior Liman Fellow in Residence, Yale Law School. Since 2008, she has represented indigent
defendants as an attorney with the Equal Justice Initiative, Montgomery, Alabama. This Essay
draws upon her first-hand observations. The authors would like to thank Kathleen E. Mollison
for outstanding research assistance.
2150
ESSAY CONTENTS
INTRODUCTION
2152
1. PROSECUTORS DETERMINE OUTCOMES IN MANY CASES WITH
LITTLE OR NO INPUT FROM THE DEFENSE
2155
II. GOVERNMENTS HAVE DISREGARDED THEIR CONSTITUTIONAL
OBLIGATION TO PROVIDE COUNSEL
CONCLUSION
2160
2172
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INTRODUCTION
Every day in thousands of courtrooms across the nation, from top-tier trial
courts that handle felony cases to municipal courts that serve as cash cows for
their communities, the right to counsel is violated. Judges conduct hearings in
which poor people accused of crimes and poor children charged with acts of
delinquency appear without lawyers. Many plead guilty without lawyers.
Others plead guilty and are sentenced after learning about plea offers from
lawyers they met moments before and will never see again. Innocent people
plead guilty to get out of jail. Virtually all cases are resolved in this manner in
many courts, particularly municipal and misdemeanor courts, which handle an
enormous volume of cases. But it is also how many felony cases are resolved.
Even when representation lasts for more than a few minutes, it is often
provided by lawyers struggling with enormous caseloads. These lawyers
practice triage as they attempt to represent more people than is humanly -and
ethically-possible without the resources to investigate their many clients'
cases, retain expert witnesses, and pay other necessary expenses. As a result,
they are unable to give their clients informed, professional advice during plea
negotiations, which resolve almost all cases in "a system of pleas, not a system
of trials."' In the rare case that goes to trial, defense counsel often cannot
seriously contest the prosecution's arguments, raise and preserve legal issues
for appeal, or provide information about the defendant that is essential for
individualized sentencing. For the poor person accused of a crime, there may
be no adversarial system. Prosecutors may determine outcomes in cases with
little or no input from defense counsel.
There are exceptions. Some jurisdictions have provided the resources,
independence, structure, training, and supervision that enable capable, caring,
and dedicated lawyers to zealously represent their clients. Some public
defenders and assigned counsel do heroic work despite overwhelming
caseloads and lack of resources. But in many jurisdictions, perfunctory
representation and "meet 'em and plead 'em" processing of human beings
through the courts remain the dominant culture. Many courts are plea mills:
courts of profit that impose fines without any inquiry into the ability of
defendants to pay, thus setting them up for failure and return to jail.
The representation received by most poor people accused of crimes -if they
receive any at all -is a far cry from the constitutional requirement of the "the
guiding hand of counsel at every step in the proceedings," which was
1.
2152
Lafler v. Cooper, 132 S. Ct. 1376, 1388 (2012). Ninety-four percent of convictions in state
courts are the result of guilty pleas. Id. In the federal courts, ninety-seven percent of
convictions are the result of guilty pleas. Id.
FIFTY YEARS OF DEFIANCE AND RESISTANCE
established by Gideon v. Wainwright and its progeny.' Gideon held that "fair
trials before impartial tribunals in which every defendant stands equal before
the law" "cannot be realized if the poor man charged with crime has to face his
accusers without a lawyer to assist him."' The Court also discussed equality
before the law in another case decided on the same day as Gideon, reiterating its
previous statement that "there can be no equal justice" where the kind of
justice a person gets "depends on the amount of money he has."s
Nevertheless, most states, counties, and municipalities - responsible for
over ninety-five percent of all criminal prosecutions -have refused to provide
funding necessary for counsel and equal justice, despite repeated reports of
deficient representation and gross miscarriages of justice. There is no public
support for such funding, and governments have no incentive to provide
competent representation, which could frustrate their efforts to convict, fine,
imprison, and execute poor defendants. Many state governments have a long
history of disregarding or resisting unpopular United States Supreme Court
2.
372 U.S. 335, 345 (1963) (quoting Powell v. Alabama, 287 U.S. 45, 69 (1932)).
3. Gideon applied to felony cases. The Court later held that children facing commitment to an
institution were entitled to counsel as a matter of due process in delinquency proceedings, In
re Gault, 387 U.S. 1,34-42 (1967), and that "no imprisonment may be imposed, even though
local law permits it, unless the accused is represented by counsel," Argersinger v. Hamlin,
407 U.S. 25, 40 (1972). An accused is entitled to counsel "within a reasonable time" after
"the initiation of adversary judicial proceedings," Rothgery v. Gillespie Cnty., 554 U.S. 191,
212 (2008), and at any "critical stage" of a criminal proceeding, such as a preliminary
hearing, Coleman v. Alabama, 399 U.S.
1,7-10
(1970), or arraignment, White v. Maryland,
373 U.S. 59, 60 (1963). The Court also held that an indigent defendant is entitled to expert
assistance when necessary to a fair trial in Ake v. Oklahoma, 470 U.S. 68, 77-83 (1985),
although its decision was based on due process and not the Sixth Amendment. The
American Bar Association, among other organizations, has developed standards
for effective representation, see, e.g., ABA STANDARDS FOR CRIMINAL JUSTICE:
PROVIDING DEFENSE SERVICES (3 d ed. 1992), http://www.americanbar.org/content/danVaba
/publications/criminal-justice standards/providingdefense services.authcheckdam.pdf, and
the effective delivery of public defense services, see Standing Comm. on Legal Aid &
Indigent Defendants, Ten Principlesof a Public Defense Delivery System, A.B.A. (Feb. 2002),
http://www.americanbar.org/content/dam/aba/administrative/legal-aid-indigent-defendants/1s
sclaiddef tenptrinciplesbooklet.authcheckdam.pdf [hereinafter Ten Principles](summarizing
and citing principles from previous reports, studies and guidelines).
4.
Gideon, 372 U.S. at 344.
5.
Douglas v. California, 372 U.S. 353, 355 (1963) (quoting Griffin v. Illinois, 351 U.S. 12, 19
(1956)) (holding that a poor person had a right to counsel on appeal).
See NAT'L CTR. FOR STATE COURTS, EXAMINING THE WORK OF STATE COURTS, 2002: A
6.
NATIONAL PERSPECTIVE FROM THE COURT STATISTICS PROJECT 13 (Brian
J.
Ostrom, Neal
B. Kauder & Robert C. LaFountain eds., 2003), http://bjs.ojp.usdoj.gov/content/pub/pdf
/ewsco2-npcsp.pdf.
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decisions -whether they require desegregation of the schools or the right to
counsel -unless these decisions are enforced. The right to counsel is not
enforced. Many judges tolerate or welcome inadequate representation because
it allows them to process cases quickly. The Supreme Court has refused to
require competent representation, instead adopting a standard of "effective
counsel" that hides and perpetuates deficient representation.
The cost of this one-sided system is enormous. Innocent people are
convicted and sent to prison while the perpetrators remain at large. Important
issues, such as the system's pervasive racism-from stops by law enforcement
officers to disparate sentencing-are ignored. People are sentenced without
consideration of their individual characteristics, allowing race, politics, and
other improper factors to influence sentences. Over 2.2 million people-a
grossly disproportionate number of them African Americans and Latinos 7 - are
in prisons and jails' at a cost of $75 billion a year.9 Nearly an additional five
million people are on probation, parole, or supervised release.o Over seventy
thousand children are held in juvenile facilities." Even those who have
completed their sentences may be deported, denied the right to vote,
dishonorably discharged from the armed forces, denied public benefits, and
7.
One in I5 African-American men over eighteen and 1 in 36 Latino men over eighteen are
imprisoned, while only i in 106 white men over eighteen is behind bars. One in 1oo: Behind
Bars in America 2008, PEW CENTER ON THE STATES 6 (2008), http://www.pewstates.org
/uploadedFiles/PCSAssets/2008/one%20in%2ooo.pdf. One in 9 African-American men
between the ages of twenty and thirty-four is behind bars. Id.
Lauren E. Glaze, CorrectionalPopulations in the United States, 201o, BUREAU OF JUST. STAT. 7
(2011), http://bjs.ojp.usdoj.gov/content/pub/pdf/cpusio.pdf.
g. John Schmitt, Kris Warner & Sarika Gupta, The High Budgetary Cost of Incarceration,
CENTER FOR ECON. & POL'Y RES. 2 (2010), http://www.cepr.net/documents/publications
/incarceration-201o-06.pdf.
1o. Glaze, supra note 8, at 2-3. When those under supervision in the community are combined
with those in prison and jail, one in every thirty-three adults, or 3.1% of the population, is
under some form of correctional control. Id. at 2. The rates are drastically elevated for
African Americans. One in every eleven African Americans was under correctional control at
8.
the end of 2007. One in 31: The Long Reach ofAmerican Corrections, PEW CENTER FOR THE
STATES 5 (2009), http://www.pewstates.org/uploadedFiles/PCSAssets/2oo9/PSPP-lin31
reportFINALWEB_3-26-o9.pdf; see also MICHELLE ALEXANDER, THE NEW JIM CROW:
MASS INCARCERATION INTHE AGE OF COLORBLINDNESS 179-80 (2010) (discussing the effects
of mass incarceration on the African-American community).
11.
CHILDREN'S DEF. FUND, THE STATE OF AMERICA'S CHILDREN: HANDBOOK 2012, at 48 (2012).
Since 1997, African-American children have been at least three-and-a-half times as likely
and Latino children at least one-and-a-half times as likely as white children to be in
residential placement. Id.
2154
FIFTY YEARS OF DEFIANCE AND RESISTANCE
denied business or professional licenses." Reentry into society is extremely
difficult," extending the costs to the families and communities of those who
have been imprisoned. 4
There are expressive costs as well. A system in which all of the key actors
routinely ignore one of its most fundamental constitutional requirements is not
a system based on the rule of law, no matter what it claims to be. When those
actors shirk their constitutional obligations and bring the immense power of
the state down most heavily on African Americans and Latinos, people cease to
have confidence in the courts. The system lacks legitimacy and credibility and
is undeserving of respect. For this to change, courts, legislatures, executives,
and members of the legal profession will need to respond with a sense of
urgency and commitment to justice that has been missing in most places
during the last fifty years.
12.
Padilla v. Kentucky, 130 S. Ct. 1473, 1488 (2oo) (Alito, J., concurring) (citing Gabriel J.
Chin & Richard W. Holmes, Jr., Effective Assistance of Counsel and the Consequences of Guilty
Pleas, 87 CORNEIL L. REv. 697, 705-o6 (2002)).
13.
Collateral Costs: Incarceration'sEffect on Economic Mobility, PEW CENTER ON THE STATES
9-18 (2010), http://www.pewstates.org/uploadedFiles/PCSAssets/2olo/Colateral Costs%281
%29.pdf (reporting that incarceration reduces former inmates' earnings by forty percent and
limits their future economic mobility).
14.
See id. at 4-5, 18-21 (reporting that 2.7 million children have a parent behind bars-i in 9
African-American children, 1 in 28 Latino children, and i in 57 white children-and that a
parent's incarceration hurts children educationally and financially); see also ALEXANDER,
supra note io, at 171-75; TODD CLEAR, IMPRISONING COMMUNITIES: How MAss
INCARCERATION MAKES DISADVANTAGED NEIGHBORHOODS WORSE (2007).
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II. GOVERNMENTS HAVE DISREGARDED THEIR CONSTITUTIONAL
OBLIGATION TO PROVIDE COUNSEL
Fifty years after Gideon, the right to counsel and equal justice are as much a
fiction as the adversary system. The kind of justice people receive depends very
much on the amount of money they have. It determines whether they have
counsel, when they obtain counsel, whether they have access to investigators
2160
FIFTY YEARS OF DEFIANCE AND RESISTANCE
and expert witnesses, and whether the representation provided is zealous or
perfunctory. This is apparent from the moment someone is arrested and jailed.
A person who can afford a lawyer usually retains one at once. The lawyer will
attempt to secure the person's immediate release from jail, often successfully,
so that the client can maintain employment, take care of family, and prepare for
trial. A team of lawyers, investigators, paralegals, and support staff will begin
an investigation while the evidence is available and the memories of witnesses
are fresh. If it appears that the charges lack merit, the lawyers will attempt to
secure dismissal of the case and, if unsuccessful, prepare for and represent the
client at trial, asserting and protecting all of the client's rights. If the client
appears to be guilty of the crime charged or a lesser offense, the lawyer will
engage in plea bargaining based upon a detailed knowledge of the facts of the
crime and the background of the client. If the client is convicted at trial or by
entering a guilty plea, the lawyer will provide individualized advocacy with
regard to sentencing.
In contrast, poor people accused of crimes, although entitled to counsel
"within a reasonable time" after "'the initiation of adversary judicial
proceedings,', 6 may languish in jail for days, weeks, or months after arrest
without a lawyer.47 They do not receive the "consultation, thoroughgoing
investigation and preparation" that are "vitally important" from the outset in a
case. 4 As a result, they may lose their jobs, homes, and means of
transportation, even though the charges may later be dismissed. Jacqueline
Winbrone even lost her husband. She was detained after arrest in New York
because she could not make $10,000 bail. With no lawyer to seek a reduction,
she remained in jail and was unable to take her husband to dialysis, and, as a
result, he died.4 1 She was later released on her personal promise to return to
court, and ultimately the charge was dismissed.so Diego Moran, facing the
46. Rothgery v. Gillespie Cnty., 554 U.S.
191, 212 (2008) (quoting Michigan v. Jackson, 475 U.S.
625, 63o n.3 (1986)). Defendants are entitled to counsel at preliminary hearings, Coleman v.
Alabama, 399 U.S. 1 (1970), which are scheduled in most jurisdictions within ten to twenty
days of arrest and provide an opportunity for dismissal of the charges or a reduction of
bond, but defendants without counsel may not receive preliminary hearings because there is
no counsel to ask for them.
47.
See NAT'L RIGHT TO COUNSEL
COMM., CONSTITUTION PROJECT, JUSTICE DENIED: AMERICA'S
CONTINUING NEGLECT OF OUR CONSTITUTIONAL RIGHT TO COUNSEL 85-87 (2009),
http://www.constitutionproject.org/manage/file/139.pdf [hereinafter JUSTICE DENIED].
Powell v. Alabama, 287 U.S. 45, 57 (1932).
49. Hurrell-Harring v. State, 883 N.Y.S.2d 349, 360 n.3 (N.Y. App. Div.
dissenting), affd as modified, 930 N.E.2d 217 (N.Y. 2010).
48.
50.
2009)
(Peters,
J.,
Id.
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death penalty in Del Rio, Texas, asked for a lawyer the day after his arrest, but
did not receive one for over eight months." A woman in Mississippi charged
with shoplifting spent eleven months in jail before a lawyer was appointed to
her case, and three additional months before entering a guilty plea." Many
poor people spend more time in jail waiting for the appointment of a lawyer
and a hearing than they would spend if found guilty and sentenced.s" Some
jurisdictions have "jail clearing days," when people who have spent more time
in jail than any sentence they might receive can plead guilty for time served.
Innocent people plead guilty to get out ofjail.'?
An ABA report in 2004 reached "the disturbing conclusion that thousands
of persons are processed through America's courts every year either with no
lawyer at all or with a lawyer who does not have the time, resources, or in some
cases the inclination to provide effective representation."ss A national study in
2009 found that in misdemeanor cases-which far outnumber felonies and
which affect millions of peoples'-judges were encouraging defendants to
plead guilty without counsel, prosecutors were talking directly with defendants
and convincing them to plead guilty without counsel, defendants were
discouraged from asking for counsel because of application fees for a public
defender as high as $200, and defense lawyers usually had too many cases to
si.
Brian Chasnoff, Indigent Often Are Left in a Legal Limbo, SAN ANTONIO EXPRESS-NEWS, Oct.
10, 201o, at Ai.
52. Assembly Line Justice: Mississippi's Indigent Defense Crisis, NAACP LEGAL DEF. &EDUC. FUND,
INC. 3 (Feb. 2003), http://www.americanbar.org/content/dan/aba/migrated/legalservices
/downloads/sclaid/indigentdefense/ms-assemblylinejustice.authcheckdam.pdf
53.
54.
supra note 47, at 86-87; Robert C. Boruchowitz, Malia N. Brink & Maureen
Dimino, Minor Crimes, Massive Waste: The Terrible Toll of America's Broken Misdemeanor
Courts, NAT'L Ass'N OF CRIM. DEF. LAw. 18-19 (2009), http://www.nacdl.org/WorkArea
/DownloadAsset.aspx?id=20808.
John H. Blume & Rebecca K. Helm, The Unexonerated: Factually Innocent Defendants Who
Plead Guilty 16-17 (Cornell Legal Studies Research Paper 2012), http://ssrn.com/abstract
=2103787 ("[Innocent persons charged with relatively minor offenses often plead guilty in
order to get out of jail, to avoid the hassle of having criminal charges hanging over their
heads, or to avoid being punished for exercising their right to trial."); see also When the
Innocent Plead Guilty, INNOCENCE PROJECT (last visited Apr. 1, 2013), http://www
.innocenceproject.org/Content/WhenstheInnocentPleadGuilty.php.
JUSTICE DENIED,
ss. ABA STANDING
AMEIUCA'S
COMM. ON LEGAL AID & INDIGENT DEFENDANTS, GIDEON'S BROKEN PROMISE:
http://www
CONTINUING QUEST FOR EQUAL JUSTICE, at iv (2004),
.americanbar.org/content/dam/aba/administrative/legal-aidjindigent defendants/1s sclaid
_def bpright-tocounselin-criminal-proceedings.authcheckdam.pdf.
s6. See Jenny Roberts, Why Misdemeanors Matter: Defining Effective Advocacy in the Lower
Criminal Courts, 45 U.C. DAvis L. REV. 277, 280-82, 297-303 (2011) (discussing the number
of misdemeanor cases and the significant consequences of convictions in those cases);
Boruchowitz et al., supra note 53, at 11 (estimating that at least ten million misdemeanor
cases are filed each year).
2162
FIFTY YEARS OF DEFIANCE AND RESISTANCE
provide competent representation.
Other studies confirm that judges and prosecutors are routinely ignoring
the right to counsel established by Gideon and its progeny. For example, one
report found that seventy percent of defendants in misdemeanor cases in
twenty-one Florida counties entered pleas of guilty or no contest at
arraignments that lasted an average of 2.93 minutes in 2011.s8 One-third were
not represented by counsel.' 9 Some defendants were not advised of their right
to counsel and others were handed forms encouraging them to waive counsel.o
Poor defendants in Florida must pay a minimum fifty-dollar fee for
representation, which cannot be waived or reduced by trial judges no matter
how destitute the defendant."' Unrepresented defendants were more likely to
plead guilty or no contest than defendants represented by counsel.62 In
Kentucky, even fewer people accused of misdemeanor offenses -about thirty
percent-were represented by counsel." Less than ten percent of the accused
were provided counsel in two populous counties near Cincinnati, Campbell
and Kenton.* Many courts in Michigan "simply do not offer counsel in
misdemeanor cases" while others "avoid their constitutional obligation to
provide counsel" by accepting "uninformed waivers," sentences of time served
without counsel, and "the threat of personal financial strains" because of
"unfair cost recovery measures,"' and mass guilty pleas in misdemeanor cases
57.
Boruchowitz et al., supra note 53, at 14-22.
s. Alisa Smith & Sean Maddan, Three-Minute justice: Haste and Waste in Florida'sMisdemeanor
Courts, NAT'L Ass'N OF Clum. DEF. LAw. 23 tbl. 9 (July 2011), http://www.nacdl.org/reports
/threeminutejustice.
sg.
Id.
60. Id. at 15, 23.
61. Id. at 18.
62. Id. at i.
63. David Carroll, Underrepresentation in Kentucky Misdemeanor Courts, NAT'L LEGAL AID &
DEFENDER ASS'N (Nov. 16, 2011, 3:34 pm), http://nlada.net/jseri/blog/underrepresentation
-kentucky-misdemeanor-courts; see also Dave Malaska, Tramplingover the Sixth Amendment:
NKY Courts Play Fast and Loose with Rules, CrrYBEAT (Cincinnati), Nov. 9, 2011,
http://www.citybeat.comcincinnati/article-24355-trampling-over-thesixth amendment.html;
Average DPA Appointment Rate to "M" Cases in District Court Over Three Fiscal Years, By
County, KY. DEP'T OF PUB. ADVOCACY, http://dpa.ky.gov/NR/rdonlyres/82134EDC-6545
-4 23 8- 9 9 23 -9 F3 202C27005/o/StatewideMisdemeanorAppointmentsFYo9FYioFYl1.xlsx (last
visited Apr. 1, 2013).
64. Malaska, supra note 63.
65. NAT'L LEGAL AID & DEFENDER ASS'N, A RACE TO THE BoTToM: SPEED AND SAVINGS
at ii-iii (2008), http://www
OVER DUE PROCESS: A CONSTITUTIONAL CRISIS,
.mynlada.org/michigan/michigan report.pdf; see id. at 29, 34, 36, 46.
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on "McJustice Days., 66 A Colorado statute requires defendants in
misdemeanor cases to be informed of plea offers by a prosecutor before
applying for a public defender.'
Fees for counsel may be waived in most states that have them, but
defendants are often not told that the fee can be waived or that they have a
right to a lawyer if they cannot afford one. A typical example is the case of Hills
McGee, who was told only that he had to pay $50 to apply for a public
defender when he appeared in court in Augusta, Georgia, on charges of public
drunkenness and obstruction of the law enforcement officer who arrested him.
Mr. McGee, a fifty-three-year-old man whose sole source of income was a
Veterans Administration disability payment of $243 per month, was unable to
pay the $5o fee and pleaded guilty without a lawyer. Without any inquiry into
his income or ability to pay, a judge fined him $200 plus $70 in fees and
surcharges. Because Mr. McGee did not have $270 that day, the judge told him
he could pay the fine in installments to a private probation company. The
probation company charged an "enrollment fee" of $15 and $39 a month for
accepting Mr. McGee's monthly payments. After struggling to make monthly
payments for over a year, Mr. McGee had paid $552 on his $270 fine. He was
jailed because he still owed but was unable to pay the last $186.
Many poor people do not see a lawyer until moments before the court
proceeding in which their cases are resolved. They have a few minutes of
conversation with harried lawyers with little knowledge of their clients and
cases and few resources to hire investigators and experts. Some do not even
talk to a lawyer. Reontay Miller, a seventeen-year-old African-American high
school freshman charged in adult court with stealing a go-cart (a felony) with
his brother, asked for a lawyer the first time he appeared before the superior
court in Cordele, Georgia, in March 2012. An investigator from the public
defender office had a brief conversation with him. He did not speak to an
attorney. Later that morning he was in one of seven groups of defendants who
pleaded guilty. While accepting the pleas, the judge asked the defendants if
they were satisfied with their attorney's services. The teen looked around,
confused, and said, "I don't have one." A public defender standing near the
group of defendants entering pleas volunteered that he represented him, but
said nothing on behalf of Reontay. The court sentenced Reontay to five years'
66. See id. at 15, 20, 22, 32.
67. COLO. REV. STAT. § 16-7-301(4) (West 20o6). The statute has been challenged in Colorado
Criminal Defense Bar v. Suthers, No.10-CV-02930 (D. Colo. filed Jan. 20, 2012),
http://www.nacdl.org/WorkArea/DownloadAsset.aspxid=23584&I:61D:23554.
68. Petition for Writ of Habeas Corpus, McGee v. Companaro, No. 2018-RCHM-1 (S.D. Ga.
filed Jan. 22, 2010).
2164
FIFTY YEARS OF DEFIANCE AND RESISTANCE
probation, a $300 fine, and $5oo restitution, and imposed the $50 public
defender fee. 69
One of the three public defenders in the office for that same circuit in
Georgia wrote a client in jail: "[E]xplain to me why you are requesting a
preliminary hearing. I would like to know why you feel like a preliminary
hearing is needed in your case.""o The public defender also advised the client
that she would not file a motion to reduce bond for ninety days."
Those in custody may have their only conversation with a lawyer while
handcuffed to other defendants on either side of them." Despite the complete
inability of the lawyers to meet even the most minimal professional
responsibilities - such as having confidential communications and being
sufficiently informed about the charges and their clients to give advice -these
discussions are very often followed a few minutes later by the entry of a guilty
plea and sentencing. A California lawyer explained that he was able to handle a
high volume of cases because seventy percent of his clients entered guilty pleas
at the first court appearance after he spent thirty seconds explaining the
prosecutor's plea offer to them." The lawyer processed cases in one of the
twenty-four California counties that contract with lawyers to handle the cases
of people unable to afford lawyers.74 Contracts are often awarded to the lowest
Memorandum from Abigail Leinsdorf & Atteeyah Hollie Regarding Proceedings in Cordele
Superior Court (Mar. 13, 2012) (on file with authors).
70. Letter from Rashawn Clark, Assistant Pub. Defender, to Client (Dec. 28, 2011) (on file with
authors).
71. Id.; Letter from Rashawn Clark, Assistant Pub. Defender, to Client (Jan. 19, 2012) (on file
with authors).
72. Both authors have observed this in various courtrooms in the South.
73. Laurence A. Benner, The Presumption of Guilt: Systemic Factors That Contribute to Ineffective
Assistance of Counsel in California,45 CAL. W. L. REV. 263, 305 (2009).
74. See id. at 300. In California, twenty-four of fifty-eight counties use contract defenders. One
county relies primarily on an assigned counsel program, and the rest have public defender
offices as the primary provider of representation. Id. at 284, 307. California and Pennsylvania
are the only states that require counties to provide all funding for indigent defense. Several
states, including Colorado, Connecticut, Delaware, Florida, Hawaii, Maine, Maryland,
Massachusetts, Minnesota, Missouri, Montana, New Hampshire, New Mexico, North
Carolina, North Dakota, Oregon, Rhode Island, Vermont, Virginia, West Virginia, and
Wisconsin, provide all funding for representation of indigent defendants. Alabama, Alaska,
Iowa, Kentucky, and Wyoming provide primary funding (fifty-one percent or more),
supplemented by their counties. Counties provide primary funding in Arizona, Arkansas,
Georgia, Idaho, Illinois, Indiana, Louisiana, Michigan, Mississippi, Nebraska, Nevada,
Ohio, South Carolina, Texas, Utah, and Washington, with supplemental funding by the
state. See Kathleen E. Mollison, So-State Survey of Indigent Defense Systems (2012)
(unpublished manuscript) (on file with authors).
6g.
2165
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bidder, creating an incentive for lawyers to handle a high volume of cases and
spend as little time as possible on each case in order to make a profit. One
contract defender repeatedly fought off low bidders by reducing his budget,
which had been forty-one percent of the prosecutor's budget in 2000, to only
twenty-seven percent of the prosecutor's budget in 2005. Yet in 2006, he was
undercut by a bid that was almost fifty percent less than his by a firm
employing even fewer lawyers spending even less time on each case. 7 1
Such unconscionable low-bid contracts are the most egregious example of
how inadequate funding "continues to be the single greatest obstacle to
delivering 'competent' and 'diligent' defense representation."76 Whether the
poor are represented by public defenders, assigned counsel or contract lawyers,
"the most visible sign of inadequate funding is attorneys attempting to provide
defense services while carrying astonishingly large caseloads."' Seven public
defenders in one office in Georgia each completed representation or "closed"
over 250 felony cases in the twelve months ending June 30, 2012, according to
records of the state public defense agency.' 8 Other jurisdictions have struggled
with similar caseloads. As a result of such caseloads, "defense lawyers are
constantly forced to violate their oaths as attorneys because their caseloads
make it impossible for them to practice law as they are required to do according
to the profession's rules."so It is doubtful that a lawyer can competently handle
150 felonies in a year, a maximum established in 1973."
The workload of Missouri's statewide public defender program increased
by more than twelve thousand cases in a six-year period ending in 2005, but
the program received no additional staff during that time.8' At the end of 2012,
it was seventy-one lawyers and sixty investigators short of what it needed to
75.
Report and Recommendations on Funding of Defense Services in California,CAL. COMMISSION ON
THE FAIR ADMIN. OF JUST. 10-12 (Apr. 14, 2008), http://www.ccfaj.org/documents/reports
/prosecutorial/official/OFFICIAL%2oREPORT%200N%2oDEFENSE%2oSERVICES.pdf.
76. JUSTIcE DENIED, supra note 47, at 7.
77.
Id.
78. Ga. Pub. Defender Standards Council, Attorney Caseload Comparison: July
1,2011, to June
30, 2012, at 6-8 (Dec. 14, 2012) (unpublished data) (on file with authors).
See JUSTICE DENIED, supra note 47, at 65-70.
So. Id. at 7.
81. Id. at 66. Some public defender offices have conducted weighted caseload studies to
determine how much time different kinds of cases require. NORMAN LEFSTEIN, SECURING
79.
REASONABLE
CASELOADS:
ETHICS
AND
LAW
IN
PUBLIC
DEFENSE
140-60
(2011),
http://www.americanbar.org/content/dam/aba/publications/books/1ssclaid-def securing
reasonable caseloads.authcheckdam.pdf. For example, the public defender office in
Lincoln, Nebraska, established a caseload standard of 127 felonies per year. Id. at 157.
82.
2166
State ex rel. Mo. Pub. Defender Coim'n v. Pratte, 298 S.W. 3 d 870, 877 (Mo. 2009).
FIFTY YEARS OF DEFIANCE AND RESISTANCE
handle its workload.8 3 The program had one investigator for every 1,461 cases.8 4
The director of the state public defender commission informed the governor
and the state's justices, judges, and legislators in 2011 that "[t]riage has
replaced justice in Missouri's courts," people languish in jail "for weeks or even
months with no access to counsel," and attorneys are forced to take "shortcuts
that lead to wrongful convictions."s8 The number of public defenders in
Minnesota fell from 423 in 20o8 to 350 in 2o1o, prompting a judge there to
comment that the courts were "fast becoming the courts of McJustice" because
"[q]uality is sacrificed for efficiency.""
Lawyers for the poor are often under financial and political pressures to
ignore ethical standards regarding conflicts, zeal, competence, and loyalty."
Some public defenders are appointed by governors, 8 commissions whose
members are all appointed by governors,' county commissions,"o judges, 91 or
political entities that may be more interested in processing a high volume of
83. Fiscal Year 2012 Annual Report, Mo. PUB.
DEFENDER
COMMISSION
10-11
(2012),
http://www.publicdefender.mo.gov/aboUt/FY2012AnnualReport2.pdf.
84. Id. at ii.
8.
Memorandum from Cathryn R. Kelly, Dir., State Pub. Defender Comm'n, to Governor
Nixon, Members of the Supreme Court, Members of the Gen. Assembly, and Presiding
Judges 2 (Oct. 1, 2011) (on file with authors).
86. Jeff Severns Guntzel, Minnesota's Public Defender Shortage: 'We Are FastBecoming the Courts
of McJustice", MINNEAPOLIS POST: INTELLIGENCER (Oct. 13, 2010), http://www.minnpost
.com/intelligencer/20o0/io/minnesotas-public-defender-shortage-we-are-fast-becoming
-courts-mcjustice.
8.
MODEL RULES OF PROF'L CONDUCT
pmbl.
2
(explaining the duty of zealous
representation); id. R. 1.1 (requiring competent representation); id. R. 1.6 (requiring
confidentiality); id. R. 1.7 (prohibiting representation of clients with conflicting interests).
88. See, e.g., ALASKA STAT. § 18.85.030
(2012); DEL. CODE ANN. tit. 29, § 4601 (2003); GA. CODE
ANN. 5 17-12-5(a) (20o8); IOWA CODE ANN. 5§ 13B.1-BB.11 (West 2012); NEV. REv. STAT.
ANN. $ 180.oio (LexisNexis 2011); N.J. STAT. ANN. § 2A:i58A- 4 (West 2011); R.I.
GEN. LAws § 12-15-2 (2002); VT. STAT. ANN. tit. 13, § 5252(a) (2009); WYO. STAT. ANN.
§
7-6-10 3 (b) (2011).
(2005); HAw. REV. STAT. ANN. §§ 802-9, -11
(LexisNexis 2007); Mo. ANN. STAT. § 6o0.015 (West 2011); MONT. CODE ANN. S 2-15-1028
(2011); Wis. STAT. ANN. § 15.78 (West 2012); WIS. STAT. ANN. 5§ 977.01-04 (West 2007).
8g. See, e.g., ARK. CODE. ANN. §§ 16-87-202 to -204
§ 11-581 (2012); CAL. Gov'T CODE
19-859 (2004); 16 PA. CONS. STAT. ANN.
go. See, e.g., ARIZ. REV. STAT. ANN.
2008); IDAHO CODE ANN.
gi.
See, e.g.,
§
§5
27700-27704 (West
5 9960.4 (West 2012).
725 ILL. COMP. STAT. ANN. 5/113-3.1 (West 2011); MICH. COMP. LAWS. ANN.
S 775.16
(West 2010). Colorado's supreme court appoints a commission, which then appoints the
state public defender. COLO. REv. STAT. § 21-1-101 (2012).
2167
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2013
cases at low cost than complying with ethical rules.92 Some lawyers in private
practice are dependent upon appointments by judges for their livelihoods.
Resistance to higher caseloads, motions for experts -or any motions for that
matter-and zealous representation may cost them future appointments. It is
no secret that some judges determine the outcome of cases by the attorney
appointed to defend the accused. In Georgia, as a result of financial pressures,
the state public defense agency and some local public defenders joined the
Attorney General's office in arguing that public defenders should be exempt
from the rules of professional conduct that prevent lawyers from representing
clients with conflicting interests."
This underfunded, overloaded system of pleas with divided loyalties is
often not up to the task of providing lawyers for trials. Shanna Shackelford, a
twenty-three-year-old African-American woman charged with arson in
Georgia, wrote a desperate plea for help in 2012, explaining that an arson
charge against her had left her jobless and homeless. Despite her protestations
of innocence, her public defenders urged her to take a plea offer that would
result in her spending fifteen years in prison. She lost her two jobs and could
not get another because of the charges. She was sleeping in her car but was
about to lose it because she could not make the next loan payment. Finally, she
"asked to just be placed in jail while they decide how much longer they want to
92. Several states-including Connecticut, CONN. GEN. STAT. ANN. § 51-289 (West 2013),
Kentucky, KY. REv. STAT. ANN. §§ 31.o10-.250 (West 2012), Maryland, MD. CODE. ANN.,
CRIM. PROC. §§ 16-lo to -403 (West 2012), Minnesota, MINN. STAT. ANN. § 611.215 (West
2013), New Hampshire, N.H. REv. STAT. ANN. § 494:1, 6o4-B:4 (West 2013), North
Dakota, N.D. CENT. CODE ANN. §§ 54-61-01 to -03 (West 2011), South Carolina, S.C. CODE
ANN. § 17-3-310 (West 2012), Virginia, VA. CODE ANN. §5 19.2-163.01 to .04 (West 2012),
and the District of Columbia, D.C. CODE §§ 2-1603 to -1605 (West 2012)-have created
public defense commissions appointed by different officials, which gives them greater
independence than ones where a single official, such as the governor or a judge, appoints all
the members. New Mexico's chief public defender was until recently appointed by the
governor. N.M. STAT. ANN.
§
3 1-15-4(A)
(West 2012). In November 2012, the New Mexico
electorate passed a constitutional amendment to make the public defender office separate
from the state government, and the New Mexico legislature is currently drafting enabling
legislation to create an independent public defender commission. See Minutes of the Fifth
Meeting of the Courts, Corrections andJustice Committee, N.M. LEGISLATURE 6-7 (Nov. 29-30,
2012) (describing an initial hearing debating the duties and composition of an independent
public defender commission), http://www.nmlegis.gov/cs/minutes/CCJminNOV3o.12.pdf.
For a comprehensive survey of which states have created public defense commissions, see
JUSTICE DENIED, supra note 47, at i5i; and Mollison, supra note 74.
93.
See Brief of Appellant, In re Formal Advisory Opinion lo-i, No. SloUi679 (Ga. filed Feb. 28,
2011) (on file with authors). The brief was filed by the Georgia Attorney General and a local
public defender who was a member of the Public Defender Standards Council. The
Georgia Supreme Court unanimously rejected the argument. In re Formal Advisory Opinion
10-1, No. S1oUi679, 2013 WL 1499445 (Ga. Apr. 15, 2013).
2168
FIFTY YEARS OF DEFIANCE AND RESISTANCE
play with my life . . . because I fear I may take my own life or die from
conditions [of] being homeless." Even that plea was rejected, and she went
days without eating. Ultimately, she was represented by pro bono counsel who
provided zealous representation. Her case was dismissed. 94
James Fisher, Jr., spent twenty-six-and-a-half years in the custody of
Oklahoma - most of it on death row - without ever having a fair and reliable
determination of his guilt. The lawyer assigned to represent Mr. Fisher tried
his case and twenty-four others during September 1983, including another
capital murder case. 95 The lawyer made no opening statement or closing
argument at either the guilt or sentencing phase and uttered only nine words
during the entire sentencing phase.96 Nineteen years later, the Tenth Circuit
set aside the conviction, finding that Mr. Fisher's lawyer was "grossly inept,"
had "sabotaged" Mr. Fisher's defense by repeatedly reiterating the state's
version of events, and was disloyal by "exhibiting actual doubt and hostility
toward his client's case." At the retrial in 2005, Oklahoma gave Mr. Fisher a
lawyer who was drinking heavily, abusing cocaine, and neglecting his cases.98
The lawyer physically threatened Mr. Fisher at a pre-trial hearing and, as a
result, Mr. Fisher refused to attend his own trial. 99 He was again convicted and
sentenced to death, but again the conviction was set aside for ineffective
assistance of counsel.' 0 Prosecutors agreed to Mr. Fisher's release in July 2010,
provided that he be banished from Oklahoma forever. 101
Lawyers have been asleep,"0 2 intoxicated,o3 under the influence of drugs,
and mentally ill while supposedly defending clients. They have been unaware
in death penalty cases of their client's intellectual disabilities, brain damage,
mental illnesses, childhood abuse, and other mitigating factors, and, in one
94.
Letter from Shanna Shackelford to Stephen B. Bright (May
9s. Fisher v. Gibson,
2, 2012)
(on file with authors).
282 F. 3d 1283, 1293 (ioth Cir. 2002).
g6.
Id. at
1289.
97.
Id. at
1289, 1300, 1308.
g8. Fisher v. State, 2o6 P. 3d 607, 6o-11 (Okla. Crim. App.
2009).
gg. Id. at 61o.
100. Id. at 612-13.
1o1.
102.
103.
See Dan Barry, In the Rearview Mirror, Oklahoma and Death Row, N.Y. TiMES, Aug. 1o, 2010,
http://www.nytimes.con/2olo/o8/i1/us/iiland.html.
See Burdine v. Johnson, 262 F.3d 336 (5th Cir. 2001) (en banc) (vacating, by a vote of nine to
six, a conviction in a capital case because defense counsel slept during trial).
See, e.g., Haney v. State, 603 So. 2d 368, 377-78 (Ala. Crim. App. 1991) (stating that an
intoxicated lawyer had been held in contempt and jailed during a capital trial).
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2013
case, of their client's real name.' 4 Convictions and death sentences have been
upheld despite such incompetence because twenty-one years after Gideon, the
Supreme Court eroded the reach of Gideon by applying presumptions - even in
the face of facts to the contrary-that lawyers are competent and make strategic
decisions."0 s No matter how incompetent the lawyer, the Court has decreed
that "counsel is strongly presumed to have rendered adequate assistance," and,
no matter how clueless, counsel is presumed to have "made all significant
decisions in the exercise of reasonable professional judgment.",,o6 The Court
has also abandoned its previous position that "[t]he right to the assistance of
counsel is too fundamental and absolute to allow courts to indulge in nice
calculations as to the amount of prejudice arising from its denial"o 7 and has
allowed judges to make crude guesses as to whether "there is a reasonable
probability that, but for counsel's unprofessional errors, the result of the
proceeding would have been different.""' Of course, appellate judges cannot
possibly know whether the outcome might have been different because they do
not see the witnesses who testified at trial and have no idea how the jury
assessed the case. Nevertheless, courts shrug off one travesty after another
based on a guess that no matter how bad the representation was, it did not
matter.
Justice Marshall, the sole dissenter in Strickland,o9 correctly predicted that
the majority's standard was "so malleable that, in practice, it will either have no
grip at all or will yield excessive variation in the manner in which the Sixth
Amendment is interpreted and applied by different courts.""0o He also objected
See, e.g., Wilson v. Rees, 624 F. 3 d 737, 739-40 (6th Cir. 2010) (Martin, J., dissenting from
denial of rehearing en banc) (stating that the "defense was clearly a charade" because "two
wholly unqualified attorneys did a deplorable job" in a case in which the death penalty was
upheld); Slaughter v. Parker, 467 F. 3 d 511, 512 (6th Cir. 20o6) (Cole, J., dissenting from
denial of rehearing en banc) (noting that counsel was not aware of his client's name or brain
damage in a case in which the death penalty was upheld); see also Jeffrey L. Kirchmeier,
Drink, Drugs, and Drowsiness: The ConstitutionalRight to Effective Assistance of Counsel and the
Strickland Prejudice Requirement, 75 NEB. L. REV. 425, 455-62 (1996). For more cases, see
Counsel, SECOND CLASS JUST., http://www.secondclassjustice.com/?page-id=42 (last visited
Apr. 1, 2013).
ios. Strickland v. Washington, 466 U.S. 668, 689 (1984).
1o6. Id. at 690 (emphasis added).
107. Glasser v. United States, 315 U.S. 6o, 76 (1942).
108. Strickland, 466 U.S. at 694.
log. Justice Brennan joined the Court's opinion but dissented from its judgment based on his
view that the death penalty is in all circumstances cruel and unusual punishment forbidden
by the Eighth and Fourteenth Amendments. 466 U.S. at 701-07 (Brennan, J., concurring in
part and dissenting in part).
104.
10.
2170
Id. at 707 (Marshall, J., dissenting).
FIFTY YEARS OF DEFIANCE AND RESISTANCE
to the presumptions adopted by the Court because they imposed "upon
defendants an unusually weighty burden of persuasion,""' and he argued that a
defendant who establishes deficient performance should not be required to
show prejudice."'
The Court and Congress have added yet another layer of deference,
requiring federal judges in habeas corpus proceedings to be exceptionally
deferential to the decisions of elected state-court judges."' Thus, the Court of
Appeals for the Eleventh Circuit upheld a death sentence by doubly deferring
under Strickland and the habeas corpus statute to a state court's conclusion that
the outcome of the case at issue would not have been different" 4 even though
the lead defense lawyer drank a quart of vodka every night of trial. The lawyer
was also preparing to be sued, criminally prosecuted, and disbarred for stealing
client funds, and he failed to present evidence that his intellectually limited
client had been "subjected to abuse so severe, so frequent, and so notorious
that his neighbors called his childhood home 'the Torture Chamber.""s
In this system, poverty, not justice, dictates outcomes. Inexcusable
injustices occur every day in the criminal courts. As former federal judge and
FBI Director William S. Sessions has observed, the widespread resistance to
Gideon and its progeny "should be a source of great embarrassment" to the
judiciary, the bar and public officials because it has "created one of our legal
system's most shameful deficiencies, greatly exacerbated by the Court's
unrealistic and damaging 1984 decision in Strickland v. Washington.""6
ms. Id. at 713.
112.
Id. at 712.
unless
the state court's decision "was contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme Court of the United States");
Harrington v. Richter, 131 S. Ct. 770, 786 (2011) ("A state court's determination that a claim
lacks merit precludes federal habeas relief so long as 'fairminded jurists could disagree' on
the correctness of the state court's decision." (quoting Yarborough v. Alvarado, 541 U.S. 652,
664 (2004)). The Richter Court added: "Ifthis standard is difficult to meet, that is because it
was meant to be." Id.
113. See 28 U.S.C. § 2254 (d)(1) (20o6) (providing that habeas relief may not be granted
114. Holsey v. Warden, 694 F.3d 1230, 1273
(2012)
(holding that the state court's decision was
not "beyond any possibility for fairminded disagreement" (quoting Harrington,131 S. Ct. at
786-87)).
11s.
Id. at 1275 (Barkett,
J., dissenting).
116. William S. Sessions, Foreword to LEFSTEIN, supra note 81, at ix, ix.
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CONCLUSION
In the absence of a capable lawyer, a person accused of a crime is virtually
defenseless against a prosecutor acting as both inquisitor and adversary,
exercising unchecked power over everything from the crime charged to the
disclosure of information to the sentence imposed. That so many are left
defenseless so often is shameful. That the courts give so little attention to
defendants as individuals that they are compared to fast-food restaurants is a
disgrace to the courts and the legal system. However, the criminal courts are
not a concern of most people because they deal primarily with racial minorities
and the poor. As Attorney General Robert F. Kennedy observed at the time of
Gideon, "the poor person accused of a crime has no lobby."" States, counties,
and municipalities have no incentive to provide those they are prosecuting with
capable lawyers. Quite to the contrary, a bad or mediocre system of providing
lawyers facilitates pleas, move dockets, and lessens the risk that anyone accused
of a crime will not be convicted.
But these failings matter not only because they permanently damage lives,
families, and communities, but also because they leave the criminal courts
without credibility or legitimacy. The media, public officials, the judiciary, the
legal profession, law schools, and everyone in society should be concerned with
a major public institution that is supposed to be about justice and is failing so
badly. They must examine what is happening in the criminal courts and hold it
up to public examination. The Georgia legislature created a public defender
system in 2003 only after repeated criticism of deficient representation by three
consecutive chief justices of the state in addresses to the legislature and the bar,
lawsuits, reports, and extensive coverage by the Atlanta journal-Constitution
and other media."' After creating the system, the state has failed to fund it
adequately,"' but there have been significant improvements in representation
LEWIs, supra note 44, at 211.
ius. See Bill Rankin, Busy Barristers: CaseloadsSwamp Public Defenders Throughout State, ATLANTA
J.-CoNsT., Aug. 13, 2001, at Bi (reporting that "many indigent defendants languish in jails
for months before seeing their lawyer," that many cases are "never investigated," and that
guilty pleas "are often entered by poor defendants after meeting their lawyer for the first
time in court and only a brief conversation about the case"); Bill Rankin, 'I Felt Like I Was
Just Nothing': Suspected Months After Charges Dropped, ATLANTA J.-CONST., Dec. 20, 2003, at
Ai (describing the case of a man arrested on loitering charges who was "found" in jail
thirteen months after arrest, having never seen a lawyer or judge, and four months after the
charges had been dismissed); Bill Rankin, Indigent Defense Bill Beats the Odds, ATLANTA J.CoNST., Apr. 27, 2003, at C9 (describing the passage of the bill).
lig. Bill Rankin, Indigent Defense Budget in Flux: Georgia's Strapped Public Defender System May
Have To Divert Funds To Cover Costs of the Next Few Months, ATLANTA J.-CONST., NOV. 21,
117.
2007, at B1.
2172
FIFTY YEARS OF DEFIANCE AND RESISTANCE
provided in many parts of the state.
While there is little chance that the U.S. Supreme Court can be shamed
into modifying its decision in Strickland v. Washington, some state courts have
been responsive to challenges to systemic deficiencies such as the failure to
provide counsel and excessive caseloads. 2 o
Members of the legal profession have a responsibility to lobby for poor
people accused of crimes. With their government-granted oligopoly on legal
services, lawyers have a responsibility to ensure that the criminal justice system
has integrity and works for the poorest and most powerless, just as for the
most prosperous and powerful. Lawyers should visit courts and observe how
poor people are processed through the system and bring suits to obtain
systemic reforms. Lawyers-no matter what their area of practice, from
corporate lawyers to small firm lawyers, to prosecutors and other government
lawyers - should educate legislators, civil groups, and people concerned about
public policy about the importance of an effective public defense system if there
is to be justice in the courts. Bar associations and lawyers should be the
primary advocates in state legislatures for full funding for the public defense.
Some bar associations and lawyers have provided exemplary leadership in this
regard, but others have avoided indigent defense as too controversial.
Professors, students, and their associations also have an important role to
play. Professors should teach the reality of criminal law by requiring students
to visit different courts, write down what they see, and then discuss what they
have seen and how it compares to what is required. Many law schools have
criminal defense clinics.'21 More are needed so that students see the desperate
needs of poor people accused of crimes and learn to provide competent and
ethical representation.
All of these efforts must be used to persuade governments to establish and
12o. See State v. Peart, 621 So. 2d 780 (La. 1993) (adopting a presumption of ineffectiveness
where counsel had an excessive caseload and lacked resources for investigation and other
expenses); DeWolfe v. Richmond, No. 34, 2012 WL 10853 (Md. Jan. 4, 2012) (holding that
people accused of crimes have a right to counsel at first appearance hearings); State ex rel.
Mo. Pub. Defender Comm'n v. Waters, 370 S.W. 3 d 592 (Mo. 2012) (holding that a trial
court must consider whether appointing counsel to a case will cause counsel to violate the
Sixth Amendment and ethical rules); Hurrell-Harring v. State, 930 N.E.2d 217 (N.Y. 2010)
(holding that people accused of crimes could maintain a class action suit seeking counsel at
arraignment and subsequent critical stages); Heckman v. Williamson Cnty., 369 S.W. 3 d 137
(Tex. 2012) (holding that people accused of crimes could maintain a class action suit seeking
counsel in misdemeanor cases); LEFSTEIN, supra note 81, at 162-89; Stephen F. Hanlon, State
ConstitutionalChallenges to Indigent Defense Systems, 75 Mo. L. REV. 751 (2010).
121.
The E. Barrett Prettyman Program at the Georgetown University Law Center has provided
graduate and undergraduate clinical experience in criminal defense for over fifty years.
2173
THE YALE LAW JOURNAL
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2013
fully fund public defense programs that are independent of judges and politics
and provide representation through public defender programs and assigned
attorneys. This has already occurred in several jurisdictions,m and the
requirements for competent and ethical representation have been set out in
detail in standards and guidelines.1 3 The programs must be led by experienced,
client-oriented defense lawyers and must provide training and supervision to
both public defenders and private lawyers who are assigned to represent poor
defendants. Lawyers must have reasonable caseloads and resources for
investigation, interpreters, and experts, and, of course, they should not
represent clients with conflicting interests. Programs with these features can
ensure that every person arrested has "the guiding hand of counsel"1" from the
initial bail hearing through every subsequent proceeding.
Fifty years ago, the Supreme Court began to chart a course toward the
realization of the constitutional guarantees of counsel and equal justice in
Gideon v. Wainwright and other decisions. However, most state governments
have treated the Supreme Court's decision in Gideon not as a bright star
pointing the way to justice, but as an unfunded mandate to be resisted. A sober
assessment of the defiance of and resistance after Gideon makes clear that to go
from the pretense of representation to the reality of it, there must be a new
commitment to counsel and equal justice with a sense of urgency to make up
for so much time lost. This will occur only when courts begin enforcing the
right to counsel, instead of being complicit in its denial; when the legal
profession meets its responsibility to make the legal system work for everyone;
and when the media, law professors and law students, and others hold the
system up to public examination until governments are shamed into providing
the lawyers that are "fundamental and essential""s for fairness and justice.
122.
123.
124.
125.
2174
See, e.g., LEFSTEIN, supra note 81, at
quality representation).
191-228
(describing some programs that provide high-
See JUSTICE DENIED, supra note 47, at 181-213 (setting out extensive recommendations with
commentary); LEFSTEIN, supra note 81, at 230-68 (making recommendations to improve
representation and suggesting strategies for achieving them); Ten Principles,supra note 3, at
1-3 (setting out basic principles based on numerous studies, reports, and guidelines).
Gideon v. Wainwright, 372 U.S. 335, 345 (1963).
Id. at 344.
132 S.Ct. 1399
Supreme Court of the United States
MISSOURI, Petitioner
v.
Galin E. FRYE.
Decided March 21, 2012.
Justice KENNEDY delivered the opinion of the
Court.
The Sixth Amendment, applicable to the States
by the terms of the Fourteenth Amendment,
provides that the accused shall have the
assistance of counsel in all criminal
prosecutions. The right to counsel is the right to
effective assistance of counsel. See Strickland v.
Washington. This case arises in the context of
claimed ineffective assistance that led to the
lapse of a prosecution offer of a plea bargain, a
proposal that offered terms more lenient than
the terms of the guilty plea entered later. The
initial question is whether the constitutional
right to counsel extends to the negotiation and
consideration of plea offers that lapse or are
rejected. If there is a right to effective assistance
with respect to those offers, a further question is
what a defendant must demonstrate in order to
show that prejudice resulted from counsel’s
deficient performance. Other questions relating
to ineffective assistance with respect to plea
offers, including the question of proper
remedies, are considered in a second case
decided today. See. Laffler v. Cooper.
I
In August 2007, respondent Galin Frye was
charged with driving with a revoked license.
Frye had been convicted for that offense on
three other occasions, so the State of Missouri
charged him with a class D felony, which
carries a maximum term of imprisonment of
four years.
On November 15, the prosecutor sent a letter to
Frye’s counsel offering a choice of two plea
bargains. The prosecutor first offered to
recommend a 3–year sentence if there was a
guilty plea to the felony charge, without a
recommendation regarding probation but with a
recommendation that Frye serve 10 days in jail
as so-called “shock” time. The second offer was
to reduce the charge to a misdemeanor and, if
Frye pleaded guilty to it, to recommend a
90–day sentence. The misdemeanor charge of
driving with a revoked license carries a
maximum term of imprisonment of one year.
The letter stated both offers would expire on
December 28. Frye’s attorney did not advise
Frye that the offers had been made. The offers
expired.
Frye’s preliminary hearing was scheduled for
January 4, 2008. On December 30, 2007, less
than a week before the hearing, Frye was again
arrested for driving with a revoked license. At
the January 4 hearing, Frye waived his right to a
preliminary hearing on the charge arising from
the August 2007 arrest. He pleaded not guilty at
a subsequent arraignment but then changed his
plea to guilty. There was no underlying plea
agreement. The state trial court accepted Frye’s
guilty plea. The prosecutor recommended a
3–year sentence, made no recommendation
regarding probation, and requested 10 days
shock time in jail. The trial judge sentenced
Frye to three years in prison.
Frye filed for postconviction relief in state court.
He alleged his counsel’s failure to inform him of
the prosecution’s plea offer denied him the
effective assistance of counsel. At an
evidentiary hearing, Frye testified he would
have entered a guilty plea to the misdemeanor
had he known about the offer.
A state court denied the postconviction motion,
but the Missouri Court of Appeals reversed. It
determined that Frye met both of the
requirements for showing a Sixth Amendment
violation under Strickland. First, the court
determined Frye’s counsel’s performance was
deficient because the “record is void of any
evidence of any effort by trial counsel to
communicate the Offer to Frye during the Offer
window.” The court next concluded Frye had
shown his counsel’s deficient performance
caused him prejudice because “Frye pled guilty
to a felony instead of a misdemeanor and was
subject to a maximum sentence of four years
instead of one year.”
To implement a remedy for the violation, the
court deemed Frye’s guilty plea withdrawn and
remanded to allow Frye either to insist on a trial
or to plead guilty to any offense the prosecutor
deemed it appropriate to charge. This Court
granted certiorari.
II
A
It is well settled that the right to the effective
assistance of counsel applies to certain steps
before trial. The “Sixth Amendment guarantees
a defendant the right to have counsel present at
all ‘critical’ stages of the criminal proceedings.”
Critical
stages
include
arraignments,
postindictment interrogations, postindictment
lineups, and the entry of a guilty plea.
With respect to the right to effective counsel in
plea negotiations, a proper beginning point is to
discuss two cases from this Court considering
the role of counsel in advising a client about a
plea offer and an ensuing guilty plea: Hill v.
Lockhart and Padilla v. Kentucky.
Hill established that claims of ineffective
assistance of counsel in the plea bargain context
are governed by the two-part test set forth in
Strickland. As noted above, in Frye’s case, the
Missouri Court of Appeals, applying the two
part test of Strickland, determined first that
defense counsel had been ineffective and second
that there was resulting prejudice.
*
*
*
In the case now before the Court the State, as
petitioner, points out that the legal question
presented is different from that in Hill and
Padilla. In those cases the claim was that the
prisoner’s plea of guilty was invalid because
counsel had provided incorrect advice pertinent
to the plea. In the instant case, by contrast, the
guilty plea that was accepted, and the plea
proceedings concerning it in court, were all
based on accurate advice and information from
counsel. The challenge is not to the advice
pertaining to the plea that was accepted but
rather to the course of legal representation that
preceded it with respect to other potential pleas
and plea offers.
To give further support to its contention that the
instant case is in a category different from what
the Court considered in Hill and Padilla, the
State urges that there is no right to a plea offer
or a plea bargain in any event. It claims Frye
therefore was not deprived of any legal benefit
to which he was entitled. Under this view, any
wrongful or mistaken action of counsel with
respect to earlier plea offers is beside the point.
The State is correct to point out that Hill and
Padilla concerned whether there was ineffective
assistance leading to acceptance of a plea offer,
a process involving a formal court appearance
with the defendant and all counsel present.
Before a guilty plea is entered the defendant’s
understanding of the plea and its consequences
can be established on the record. This affords
the State substantial protection against later
claims that the plea was the result of inadequate
advice. At the plea entry proceedings the trial
court and all counsel have the opportunity to
establish on the record that the defendant
understands the process that led to any offer, the
advantages and disadvantages of accepting it,
and the sentencing consequences or possibilities
that will ensue once a conviction is entered
based upon the plea. See, e.g., Fed. Rule Crim.
Proc. 11; Mo. Sup.Ct. Rule 24.02 (2004). Hill
and Padilla both illustrate that, nevertheless,
there may be instances when claims of
ineffective assistance can arise after the
conviction is entered. Still, the State, and the
trial court itself, have had a substantial
opportunity to guard against this contingency by
establishing at the plea entry proceeding that the
defendant has been given proper advice or, if
the advice received appears to have been
inadequate, to remedy that deficiency before the
plea is accepted and the conviction entered.
When a plea offer has lapsed or been rejected,
however, no formal court proceedings are
involved.
This
underscores
that
the
plea-bargaining process is often in flux, with no
clear standards or timelines and with no judicial
supervision of the discussions between
prosecution and defense. Indeed, discussions
between client and defense counsel are
privileged. So the prosecution has little or no
notice if something may be amiss and perhaps
no capacity to intervene in any event. And, as
noted, the State insists there is no right to
receive a plea offer. For all these reasons, the
State contends, it is unfair to subject it to the
consequences
of
defense
counsel’s
inadequacies, especially when the opportunities
for a full and fair trial, or, as here, for a later
guilty plea albeit on less favorable terms, are
preserved.
The State’s contentions are neither illogical nor
without some persuasive force, yet they do not
suffice to overcome a simple reality.
Ninety-seven percent of federal convictions and
ninety-four percent of state convictions are the
result of guilty pleas. The reality is that plea
bargains have become so central to the
administration of the criminal justice system
that defense counsel have responsibilities in the
plea bargain process, responsibilities that must
be met to render the adequate assistance of
counsel that the Sixth Amendment requires in
the criminal process at critical stages. Because
ours “is for the most part a system of pleas, not
a system of trials,” Lafler, post, it is insufficient
simply to point to the guarantee of a fair trial as
a backstop that inoculates any errors in the
pretrial process. “To a large extent ... horse
trading [between prosecutor and defense
counsel] determines who goes to jail and for
how long. That is what plea bargaining is. It is
not some adjunct to the criminal justice system;
it is the criminal justice system.” Scott & Stuntz,
Plea Bargaining as Contract, 101 Yale L. J.
1909, 1912 (1992). See also Barkow, Separation
of Powers and the Criminal Law, 58 Stan.
L.Rev. 989, 1034 (2006) (“[Defendants] who do
take their case to trial and lose receive longer
sentences than even Congress or the prosecutor
might think appropriate, because the longer
sentences exist on the books largely for
bargaining purposes. This often results in
individuals who accept a plea bargain receiving
shorter sentences than other individuals who are
less morally culpable but take a chance and go
to trial” (footnote omitted)). In today’s criminal
justice system, therefore, the negotiation of a
plea bargain, rather than the unfolding of a trial,
is almost always the critical point for a
defendant.
To note the prevalence of plea bargaining is not
to criticize it. The potential to conserve valuable
prosecutorial resources and for defendants to
admit their crimes and receive more favorable
terms at sentencing means that a plea agreement
can benefit both parties. In order that these
benefits can be realized, however, criminal
defendants require effective counsel during plea
negotiations. “Anything less ... might deny a
defendant ‘effective representation by counsel at
the only stage when legal aid and advice would
help him.’ ” Massiah.
B
The inquiry then becomes how to define the
duty and responsibilities of defense counsel in
the plea bargain process. This is a difficult
question. “The art of negotiation is at least as
nuanced as the art of trial advocacy and it
presents questions farther removed from
immediate judicial supervision.” Premo v.
Moore. Bargaining is, by its nature, defined to a
substantial degree by personal style. The
alternative courses and tactics in negotiation are
so individual that it may be neither prudent nor
practicable to try to elaborate or define detailed
standards for the proper discharge of defense
counsel’s participation in the process.
This case presents neither the necessity nor the
occasion to define the duties of defense counsel
in those respects, however. Here the question is
whether defense counsel has the duty to
communicate the terms of a formal offer to
accept a plea on terms and conditions that may
result in a lesser sentence, a conviction on lesser
charges, or both.
This Court now holds that, as a general rule,
defense counsel has the duty to communicate
formal offers from the prosecution to accept a
plea on terms and conditions that may be
favorable to the accused. Any exceptions to that
rule need not be explored here, for the offer was
a formal one with a fixed expiration date. When
defense counsel allowed the offer to expire
without advising the defendant or allowing him
to consider it, defense counsel did not render the
effective assistance the Constitution requires.
Though the standard for counsel’s performance
is not determined solely by reference to codified
standards of professional practice, these
standards can be important guides. The
American Bar Association recommends defense
counsel “promptly communicate and explain to
the defendant all plea offers made by the
prosecuting attorney,” and this standard has
been adopted by numerous state and federal
courts over the last 30 years.
The prosecution and the trial courts may adopt
some measures to help ensure against late,
frivolous, or fabricated claims after a later, less
advantageous plea offer has been accepted or
after a trial leading to conviction with resulting
harsh consequences. First, the fact of a formal
offer means that its terms and its processing can
be documented so that what took place in the
negotiation process becomes more clear if some
later inquiry turns on the conduct of earlier
pretrial negotiations. Second, States may elect to
follow rules that all offers must be in writing,
again to ensure against later misunderstandings
or fabricated charges. Third, formal offers can
be made part of the record at any subsequent
plea proceeding or before a trial on the merits,
all to ensure that a defendant has been fully
advised before those further proceedings
commence. . . .
Here defense counsel did not communicate the
formal offers to the defendant. As a result of
that deficient performance, the offers lapsed.
Under Strickland, the question then becomes
what, if any, prejudice resulted from the breach
of duty.
C
To show prejudice from ineffective assistance of
counsel where a plea offer has lapsed or been
rejected because of counsel’s deficient
performance, defendants must demonstrate a
reasonable probability they would have
accepted the earlier plea offer had they been
afforded effective assistance of counsel.
Defendants must also demonstrate a reasonable
probability the plea would have been entered
without the prosecution canceling it or the trial
court refusing to accept it, if they had the
authority to exercise that discretion under state
law. To establish prejudice in this instance, it is
necessary to show a reasonable probability that
the end result of the criminal process would
have been more favorable by reason of a plea to
a lesser charge or a sentence of less prison time.
This application of Strickland to the instances of
an uncommunicated, lapsed plea does nothing to
alter the standard laid out in Hill. In cases where
a defendant complains that ineffective
assistance led him to accept a plea offer as
opposed to proceeding to trial, the defendant
will have to show “a reasonable probability that,
but for counsel’s errors, he would not have
pleaded guilty and would have insisted on going
to trial.” Hill. Hill was correctly decided and
applies in the context in which it arose. Hill
does not, however, provide the sole means for
demonstrating prejudice arising from the
deficient performance of counsel during plea
negotiations. Unlike the defendant in Hill, Frye
argues that with effective assistance he would
have accepted an earlier plea offer (limiting his
sentence to one year in prison) as opposed to
entering an open plea (exposing him to a
maximum
sentence
of
four
years’
imprisonment). In a case, such as this, where a
defendant pleads guilty to less favorable terms
and claims that ineffective assistance of counsel
caused him to miss out on a more favorable
earlier plea offer, Strickland ‘s inquiry into
whether “the result of the proceeding would
have been different,” requires looking not at
whether the defendant would have proceeded to
trial absent ineffective assistance but whether he
would have accepted the offer to plead pursuant
to the terms earlier proposed.
In order to complete a showing of Strickland
prejudice, defendants who have shown a
reasonable probability they would have
accepted the earlier plea offer must also show
that, if the prosecution had the discretion to
cancel it or if the trial court had the discretion to
refuse to accept it, there is a reasonable
probability neither the prosecution nor the trial
court would have prevented the offer from being
accepted or implemented. This further showing
is of particular importance because a defendant
has no right to be offered a plea, see
Weatherford, nor a federal right that the judge
accept it. In at least some States, including
Missouri, it appears the prosecution has some
discretion to cancel a plea agreement to which
the defendant has agreed. The Federal Rules,
some state rules including in Missouri, and this
Court’s precedents give trial courts some leeway
to accept or reject plea agreements, . . .. It can
be assumed that in most jurisdictions
prosecutors and judges are familiar with the
boundaries of acceptable plea bargains and
sentences. So in most instances it should not be
difficult to make an objective assessment as to
whether or not a particular fact or intervening
circumstance would suffice, in the normal
course, to cause prosecutorial withdrawal or
judicial nonapproval of a plea bargain. The
determination that there is or is not a reasonable
probability that the outcome of the proceeding
would have been different absent counsel’s
errors can be conducted within that framework.
III
These standards must be applied to the instant
case. As regards the deficient performance
prong of Strickland, the Court of Appeals found
the “record is void of any evidence of any effort
by trial counsel to communicate the [formal]
Offer to Frye during the Offer window, let alone
any evidence that Frye’s conduct interfered with
trial counsel’s ability to do so.” On this record,
it is evident that Frye’s attorney did not make a
meaningful attempt to inform the defendant of a
written plea offer before the offer expired. The
Missouri Court of Appeals was correct that
“counsel’s representation fell below an
objective
standard
of
reasonableness.”
Strickland, supra.
The Court of Appeals erred, however, in
articulating the precise standard for prejudice in
this context. As noted, a defendant in Frye’s
position must show not only a reasonable
probability that he would have accepted the
lapsed plea but also a reasonable probability that
the prosecution would have adhered to the
agreement and that it would have been accepted
by the trial court. Frye can show he would have
accepted the offer, but there is strong reason to
doubt the prosecution and the trial court would
have permitted the plea bargain to become final.
There appears to be a reasonable probability
Frye would have accepted the prosecutor’s
original offer of a plea bargain if the offer had
been communicated to him, because he pleaded
guilty to a more serious charge, with no promise
of a sentencing recommendation from the
prosecutor. It may be that in some cases
defendants must show more than just a guilty
plea to a charge or sentence harsher than the
original offer. For example, revelations between
plea offers about the strength of the
prosecution’s case may make a late decision to
plead guilty insufficient to demonstrate, without
further evidence, that the defendant would have
pleaded guilty to an earlier, more generous plea
offer if his counsel had reported it to him. Here,
however, that is not the case. The Court of
Appeals did not err in finding Frye’s acceptance
of the less favorable plea offer indicated that he
would have accepted the earlier (and more
favorable) offer had he been apprised of it; and
there is no need to address here the showings
that might be required in other cases.
The Court of Appeals failed, however, to
require Frye to show that the first plea offer, if
accepted by Frye, would have been adhered to
by the prosecution and accepted by the trial
court. Whether the prosecution and trial court
are required to do so is a matter of state law, and
it is not the place of this Court to settle those
matters. The Court has established the minimum
requirements of the Sixth Amendment as
interpreted in Strickland, and States have the
discretion to add procedural protections under
state law if they choose. A State may choose to
preclude the prosecution from withdrawing a
plea offer once it has been accepted or perhaps
to preclude a trial court from rejecting a plea
bargain. In Missouri, it appears “a plea offer
once accepted by the defendant can be
withdrawn
without
recourse”
by
the
prosecution. The extent of the trial court’s
discretion in Missouri to reject a plea agreement
appears to be in some doubt.
We remand for the Missouri Court of Appeals to
consider these state-law questions, because they
bear on the federal question of Strickland
prejudice. If, as the Missouri court stated here,
the prosecutor could have canceled the plea
agreement, and if Frye fails to show a
reasonable probability the prosecutor would
have adhered to the agreement, there is no
Strickland prejudice. Likewise, if the trial court
could have refused to accept the plea agreement,
and if Frye fails to show a reasonable
probability the trial court would have accepted
the plea, there is no Strickland prejudice. In this
case, given Frye’s new offense for driving
without a license on December 30, 2007, there
is reason to doubt that the prosecution would
have adhered to the agreement or that the trial
court would have accepted it at the January 4,
2008, hearing, unless they were required by
state law to do so.
It is appropriate to allow the Missouri Court of
Appeals to address this question in the first
instance. The judgment of the Missouri Court of
Appeals is vacated, and the case is remanded for
further proceedings not inconsistent with this
opinion.
It is so ordered.
130 S.Ct. 1473
Supreme Court of the United States
Jose PADILLA, Petitioner,
v.
KENTUCKY.
Decided March 31, 2010.
Justice STEVENS delivered the opinion of the
Court.
Petitioner Jose Padilla, a native of Honduras,
has been a lawful permanent resident of the
United States for more than 40 years. Padilla
served this Nation with honor as a member of
the U.S. Armed Forces during the Vietnam War.
He now faces deportation after pleading guilty
to the transportation of a large amount of
marijuana in his tractor-trailer in the
Commonwealth of Kentucky.1
1
evidentiary hearing. The court held that the
Sixth Amendment’s guarantee of effective
assistance of counsel does not protect a criminal
defendant from erroneous advice about
deportation because it is merely a “collateral”
consequence of his conviction. In its view,
neither counsel’s failure to advise petitioner
about the possibility of removal, nor counsel’s
incorrect advice, could provide a basis for relief.
We granted certiorari to decide whether, as a
matter of federal law, Padilla’s counsel had an
obligation to advise him that the offense to
which he was pleading guilty would result in his
removal from this country. We agree with
Padilla that constitutionally competent counsel
would have advised him that his conviction for
drug distribution made him subject to automatic
deportation. Whether he is entitled to relief
depends on whether he has been prejudiced, a
matter that we do not address.
*
Padilla’s crime, like virtually every drug
offense except for only the most
insignificant marijuana offenses, is a
deportable offense under 8 U.S.C. §
1227(a)(2)(B)(i).
In this postconviction proceeding, Padilla claims
that his counsel not only failed to advise him of
this consequence prior to his entering the plea,
but also told him that he “ ‘did not have to
worry about immigration status since he had
been in the country so long.’” Padilla relied on
his counsel’s erroneous advice when he pleaded
guilty to the drug charges that made his
deportation virtually mandatory. He alleges that
he would have insisted on going to trial if he
had not received incorrect advice from his
attorney.
Assuming the truth of his allegations, the
Supreme Court of Kentucky denied Padilla
postconviction relief without the benefit of an
*
II
*
Before deciding whether to plead guilty, a
defendant is entitled to “the effective assistance
of competent counsel.” The Supreme Court of
Kentucky rejected Padilla’s ineffectiveness
claim on the ground that the advice he sought
about the risk of deportation concerned only
collateral matters, i.e., those matters not within
the sentencing authority of the state trial court.
In its view, “collateral consequences are outside
the scope of representation required by the Sixth
Amendment,” and, therefore, the “failure of
defense counsel to advise the defendant of
possible deportation consequences is not
cognizable as a claim for ineffective assistance
of counsel.” The Kentucky high court is far
from alone in this view.
We, however, have never applied a distinction
between direct and collateral consequences to
define the scope of constitutionally “reasonable
professional
assistance”
required
under
Strickland. Whether that distinction is
appropriate is a question we need not consider
in this case because of the unique nature of
deportation.
We have long recognized that deportation is a
particularly severe “penalty,” but it is not, in a
strict sense, a criminal sanction. Although
removal proceedings are civil in nature,
deportation is nevertheless intimately related to
the criminal process. Our law has enmeshed
criminal convictions and the penalty of
deportation for nearly a century, see Part I,
supra, at 1478–1481. And, importantly, recent
changes in our immigration law have made
removal nearly an automatic result for a broad
class of noncitizen offenders. Thus, we find it
“most difficult” to divorce the penalty from the
conviction in the deportation context. Moreover,
we are quite confident that noncitizen
defendants facing a risk of deportation for a
particular offense find it even more difficult.
Deportation as a consequence of a criminal
conviction is, because of its close connection to
the criminal process, uniquely difficult to
classify as either a direct or a collateral
consequence. The collateral versus direct
distinction is thus ill suited to evaluating a
Strickland claim concerning the specific risk of
deportation. We conclude that advice regarding
deportation is not categorically removed from
the ambit of the Sixth Amendment right to
counsel. Strickland applies to Padilla’s claim.
III
Under Strickland, we first determine whether
counsel’s representation “fell below an
objective standard of reasonableness.” Then we
ask whether “there is a reasonable probability
that, but for counsel’s unprofessional errors, the
result of the proceeding would have been
different.” The first prong—constitutional
deficiency—is necessarily linked to the practice
and expectations of the legal community: “The
proper measure of attorney performance
remains simply reasonableness under prevailing
professional norms.” We long have recognized
that “[p]revailing norms of practice as reflected
in American Bar Association standards and the
like ... are guides to determining what is
reasonable ... ” Although they are “only guides,”
Strickland, and not “inexorable commands,”
these standards may be valuable measures of the
prevailing professional norms of effective
representation, especially as these standards
have been adapted to deal with the intersection
of modern criminal prosecutions and
immigration law.
The weight of prevailing professional norms
supports the view that counsel must advise her
client regarding the risk of deportation. . . .
“[A]uthorities of every stripe—including the
American Bar Association, criminal defense and
public defender organizations, authoritative
treatises,
and
state
and
city
bar
publications—universally
require
defense
attorneys to advise as to the risk of deportation
consequences for non-citizen clients ... .” Brief
for Legal Ethics, Criminal Procedure, and
Criminal Law Professors as Amici Curiae 12–14
(footnotes omitted) . . . .
We too have previously recognized that
“‘[p]reserving the client’s right to remain in the
United States may be more important to the
client than any potential jail sentence.’ ” St. Cyr
Likewise, we have recognized that “preserving
the possibility of” discretionary relief from
deportation under § 212(c) of the 1952 INA, 66
Stat. 187, repealed by Congress in 1996, “would
have been one of the principal benefits sought
by defendants deciding whether to accept a plea
offer or instead to proceed to trial.” St. Cyr. We
expected that counsel who were unaware of the
discretionary relief measures would “follo[w]
the advice of numerous practice guides” to
advise themselves of the importance of this
particular form of discretionary relief.
In the instant case, the terms of the relevant
immigration statute are succinct, clear, and
explicit in defining the removal consequence for
Padilla’s conviction. . . . Padilla’s counsel could
have easily determined that his plea would make
him eligible for deportation simply from reading
the text of the statute, which addresses not some
broad classification of crimes but specifically
commands removal for all controlled substances
convictions except for the most trivial of
marijuana possession offenses. Instead, Padilla’s
counsel provided him false assurance that his
conviction would not result in his removal from
this country. This is not a hard case in which to
find deficiency: The consequences of Padilla’s
plea could easily be determined from reading
the removal statute, his deportation was
presumptively mandatory, and his counsel’s
advice was incorrect.
Immigration law can be complex, and it is a
legal specialty of its own. Some members of the
bar who represent clients facing criminal
charges, in either state or federal court or both,
may not be well versed in it. There will,
therefore, undoubtedly be numerous situations
in which the deportation consequences of a
particular plea are unclear or uncertain. The
duty of the private practitioner in such cases is
more limited. When the law is not succinct and
straightforward (as it is in many of the scenarios
posited by Justice ALITO), a criminal defense
attorney need do no more than advise a
noncitizen client that pending criminal charges
may carry a risk of adverse immigration
consequences. But when the deportation
consequence is truly clear, as it was in this case,
the duty to give correct advice is equally clear.
Accepting his allegations as true, Padilla has
sufficiently alleged constitutional deficiency to
satisfy the first prong of Strickland. Whether
Padilla is entitled to relief on his claim will
depend on whether he can satisfy Strickland ‘s
second prong, prejudice, a matter we leave to
the Kentucky courts to consider in the first
instance.
*
*
*
In sum, we have long recognized that the
negotiation of a plea bargain is a critical phase
of litigation for purposes of the Sixth
Amendment right to effective assistance of
counsel. The severity of deportation—“the
equivalent of banishment or exile,”—only
underscores how critical it is for counsel to
inform her noncitizen client that he faces a risk
of deportation.
V
It is our responsibility under the Constitution to
ensure that no criminal defendant—whether a
citizen or not—is left to the “mercies of
incompetent counsel.” Richardson. To satisfy
this responsibility, we now hold that counsel
must inform her client whether his plea carries a
risk of deportation. Our longstanding Sixth
Amendment precedents, the seriousness of
deportation as a consequence of a criminal plea,
and the concomitant impact of deportation on
families living lawfully in this country demand
no less.
Taking as true the basis for his motion for
postconviction relief, we have little difficulty
concluding that Padilla has sufficiently alleged
that his counsel was constitutionally deficient.
Whether Padilla is entitled to relief will depend
on whether he can demonstrate prejudice as a
result thereof, a question we do not reach
because it was not passed on below.
The judgment of the Supreme Court of
Kentucky is reversed, and the case is remanded
for further proceedings not inconsistent with this
opinion.
It is so ordered.
Champion
July, 2013
ADDRESSING RACIAL DISPARITY IN THE CRIMINAL JUSTICE SYSTEM THROUGH
HOLISTIC DEFENSE
Robin Steinberg
The Bronx Defenders
Racial disparity in the criminal justice system is a problem with which public defenders are intimately
familiar. They see it every day in courthouses across the country where people of color from low income
communities line the crowded hallways, fill the courtroom benches, and sit at the defense table in
staggering and disproportionate numbers. Public defenders cannot eliminate racial disparity in the
criminal justice system because racial disparity is the result of larger social, political, and economic
issues and decisions that were made long before the police put cuffs on their clients, and long before
defenders met the clients at their first court appearance. But defenders can-- and should--provide public
defender services that properly address the discriminatory laws and practices they see. The Bronx
Defenders’ model of holistic defense, guided by four “pillars” outlined in this article, combats racial
disparity in the criminal justice system by enhancing the quality and meaning of individual
representation for each client; providing civil legal services that improve life outcomes, in addition to
case outcomes; creating structural mechanisms that capture important client and community data; and
empowering attorneys, clients, and community members to advocate for a fairer criminal justice system.
Of course, public defenders strongly believe in the right to counsel for poor people of all races and
ethnicities who are accused of crimes. The core of what they do is defend anyone, anywhere, charged
with anything. But America’s criminal justice system is not race neutral. It is impossible to ignore the
fact that nearly all of The Bronx Defenders’ 30,000 clients per year are African American or Latino1 and
that nationwide, 1 in 3 Black males, 1 in 6 Hispanic males, and 1 in 17 White males are expected to go
to prison during their lifetime.2 Mass incarceration is only part of the problem; in 21st-century America,
a release from prison does not guarantee real freedom. As a result of a criminal record--or even just an
arrest--clients suffer crippling collateral consequences. They face deportation and the loss of their
children, jobs, employment licenses, public housing, and public benefits.3 Since the mid-1990s,
draconian laws and the increased availability of criminal history information have contributed to the
expansion of these collateral consequences.4 In this context, it is easy to understand why civil rights
advocate and Ohio State Law Professor Michelle Alexander called the criminal justice system a
“gateway” into a new “racial caste.”5 While the Supreme Court decision Padilla v. Kentucky has made
public defenders responsible for advising their clients about the consequences of a plea,6 more drastic
measures are necessary.
Four Pillars
Holistic defense chips away at this “racial caste” system by responding to the legal and nonlegal
challenges that clients face. The model is comprised of four pillars: Pillar One - seamless access to legal
and nonlegal services that meet client needs; Pillar Two--dynamic, interdisciplinary communication;
Pillar Three--advocates with an interdisciplinary skill set; and Pillar Four--a robust understanding of,
and connection to, the community served. All four pillars must be met for an office to be considered
truly “holistic”; however, it is an aspirational model, and public defender offices can start by
incorporating one or two pillars into their practice.7
Seamless access to legal and nonlegal services (Pillar One) is crucial for clients from historically
disenfranchised Black and Latino communities, who have been denied access to services for far too
long, leading to instability, poverty, and criminal justice involvement. By offering criminal defense,
family defense, and civil legal services under the same roof, The Bronx Defenders places an emphasis
on “seamless” access: defenders do not want to create another obstacle for clients, who spend their lives
navigating one indifferent bureaucracy after the next, trying to get assistance for themselves and their
families.
Interdisciplinary teams are also an essential part of the holistic defense model. Each team includes
criminal attorneys, civil attorneys, social workers, civil legal advocates, and parent advocates, who all
work together, in constant communication, to provide a wide array of services for each client (Pillar
Two). In addition to inhouse services, advocates have strong partnerships with Bronx shelters, churches,
and social service organizations, allowing advocates to quickly and easily obtain the best shelter
placement for a newly homeless client, or secure the most compassionate therapist for a client with
mental health needs.
Moreover, all attorneys and advocates receive interdisciplinary training, which enables them to work
more effectively as a team and to provide the best representation for each client (Pillar Three). For
example, during intake, attorneys are trained to ask not just about the names of the witnesses or the
search warrant, but also about the client’s immigration status, children, public benefits, police
misconduct, mental health, employment, housing, and student loans.8 Depending on a client’s needs, a
criminal attorney will refer him to the appropriate civil attorney or advocate on her team; civil attorneys,
social workers, legal advocates, and parent advocates help clients secure public benefits, recover their
employment licenses, comply with services mandated by the court, and stay in the country with their
families. With the support of advocates who can quickly identify clients’ issues and find support,
services and representation, clients are able to properly access services that they should have received
long ago.9
Holistic defense is founded on the belief that race, class, and inequality matter in public defense (Pillar
Four). Holistic defenders are trained to view a client within the larger context of his family, community
and society, looking beyond individual “case” needs of clients to help them obtain the services that they
desperately need. Regular community events, intake, and a 24-hour hotline keep advocates indelibly
connected to the South Bronx, and enable them to collect data on the most pressing needs of the
community and how to respond to those needs. Holistic defenders also lead “Know Your Rights”
workshops at local schools, churches, and community centers, and volunteer at annual Bronx Defenders
community events such as the Community Block Party and the Thanksgiving Dinner. They provide
support for Community Legal Intake, which has an open-door policy five days per week, 9 a.m. 6 p.m.,10
and take turns “on-call” for the 24-hour hotline.11 With these experiences, attorneys are able to provide
more relevant, effective and compassionate representation for clients, and collect data on the needs of
the community.
Community Impact
With this data from clients and community members, The Bronx Defenders can develop a strategic plan
for advocacy that incorporates myriad tactics, including organizing, policy advocacy, citywide
coalition-building, direct advocacy with legislators, and impact litigation. All initiatives rely heavily on
the involvement and support of all advocates, who forge a personal and team connection to the
community and motivate their clients to participate in The Bronx Defenders’ events and projects. Client
leadership is crucial to the implementation of the holistic defense model: when clients learn how to
advocate for themselves and their communities, they can improve their own lives and make powerful
systemic changes.
Reform happens slowly, but over time advocates have seen the impact of the holistic defense model on
criminal justice issues that disproportionately affect African Americans and Latinos. In 2009, members
of The Bronx Defenders were part of a broad coalition that achieved significant reform of New York’s
discriminatory Rockefeller Drug Laws; advocates mobilized clients, advised politicians on drafts of
legislation, met with Bronx-based lawmakers, and afterward, monitored the implementation of the drug
laws. Advocates at The Bronx Defenders also played an important role in ending prison gerrymandering
in New York State--enabling incarcerated people to make their votes count in their home communities
(majority Black and Latino), instead of upstate (mostly White). In July 2012, Gov. Cuomo signed into
law a bill that The Bronx Defenders was instrumental in proposing and advocating for, which allows
nonprofit organizations to post bail up to $2,000 for poor people charged with misdemeanors.12 This bill
is a great step toward pretrial justice for poor, minority communities, as 89 percent of all people held for
misdemeanors on bail amounts of $1,000 or less are Black or Latino.13 Earlier in 2012, The Bronx
Defenders settled a class action lawsuit against the City of New York, which was charging clients and
other city residents, mostly Blacks and Latinos, with violating New York State loitering laws after the
laws had been deemed unconstitutional. The city agreed. to pay $15 million to around 20,000 people in
the settlement.14
Throughout 2012, advocates mobilized clients and community members in an effort to end racially
discriminatory police practices in New York, including “stop-and-frisk.”15 As Steering Committee
members of the citywide advocacy campaign Communities United for Police Reform (CPR), advocates
at The Bronx Defenders helped marshal support for the New York City Council’s passage of the
Community Safety Act. The Bronx Defenders also co-litigated Ligon v. City of New York, a class action
lawsuit that successfully challenged the NYPD’s practice of carrying out stops and frisks in New York
City apartment buildings.16
Empowering Clients and Advocates
The Bronx Defenders model of holistic defense maintains its absolute commitment to individual client
representation while enabling defenders to think more broadly about the large-scale problems and
obstacles clients, and their communities, face every day. By engaging in the client community in
productive and meaningful ways, holistic defense is the best public defender model to address issues of
racial disparity and inequality in the criminal justice system. It creates better advocates, captures
relevant data and client stories about larger systemic problems, connects clients to services, and inspires
advocates and clients alike to get involved in movements for systemic change. The model enables and
empowers clients and advocates to be powerful voices for criminal justice reform, and therefore an
effective opponent of the ““racial caste” system that threatens the administration of justice in the United
States.
Footnotes
a1
Robin Steinberg is the Founder and Executive Director of The Bronx Defenders. She has
experience in every aspect of public defense--from representing individual clients to creating a
nonprofit organization. Steinberg advocates nationally and internationally for holistic
representation and the community defender movement.
1
Of clients who reported race and ethnicity on our intake forms, over 90 percent were Black and
Hispanic. (Bronx Defenders internal Client Data, January 2011-Present). THE CHAMPION
2
See Thomas P. Bonczar. Prevalence of Imprisonment In the U.S. Population, 1974-2001. U.S.
Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, at 1. (August
2003).The “War on Drugs,” launched in the late 1960s, has contributed greatly to mandatory
minimum sentencing and mass imprisonment, particularly of poor Black and Latino communities.
There are scores of books and article on this topic. See, for example, Marc Mauer & Meda
Chesney-Lind, Introduction in INVISIBLE PUNISHMENT: THE COLLATERAL
CONSEQUENCES OF MASS IMPRISONMENT 10-11 (Marc Mauer & Meda Chesney-Lind,
eds., 2002.) Mauer and Chesney-Lind also report that today, nearly 80 percent of inmates in state
prison for drug offenses are African American or Latino (6). See also MICHELLE
ALEXANDER, THE NEW JIM CROW: MASS INCARCERATON IN THE AGE OF
COLORBLINDEDNESS 53-58 (2012). See also Gabriel J. Chin, Race, the War on Drugs, and
the Collateral Consequences of Criminal Conviction, 6 J. GENDER RACE & JUST. 253,
262-270 (2002).
3
For an overview of these collateral consequences and their impact on people in criminal
proceedings, see, for example, INVISIBLE PUNISHMENT (Marc Mauer & Meda Chesney-Lind,
eds., 2002.). See also Robin Steinberg, Heeding Gideon’s Call in the 21st Century: Holistic
Defense and the New Public Defense Paradigm, 70 WASHINGTON AND LEE L. REV. 961
(2013). See also several articles by McGregor Smyth, including; From ‘Collateral’ to ‘Integral’:
The Seismic Evolution of Padilla v. Kentucky and Its Impact on Penalties Beyond Deportation. 54
HOWARD LJ. 795 (2011) and ‘Collateral’ No More: The Practical Imperative for Holistic
Defense in a Post-Padilla World ... Or, How to Achieve Consistently Better Results for Clients, 31
ST. LOUIS U. PUB. L REV. 139 (2011 ). See also Michael Pinard, Broadening the Holistic
Mindset: Incorporating Collateral Consequences and Re-entry into Criminal Defense Lawyering,
31 FORDHAM URBAN LJ. 1067 (2003).
4
Ibid. See also McGregor Smyth, From Arrest to Reintegration: A Model for Mitigating Collateral
Consequences of Criminal Proceedings, 24 CRIM. JUST. 42 (Fall 2009); Kathleen M. Olivares,
Velmer S. Burton, Jr. & Francis T. Cullen, The Collateral Consequences of a Felony Conviction:
A National Study of State Legal Codes 10 Years Later, 60 FED. PROBATION 10 (September,
1996).
5
MICHELLE ALEXANDER, THE NEW JIM CROW: MASS INCARCERATION IN THE AGE
OF COLORBUNDEDNESS 12 (2010). “Like Jim Crow (and slavery), mass incarceration
operates as a tightly networked system of laws, policies, customs, and institutions that operate
collectively to ensure the subordinate status of a group defined largely by race.” Id. at 13.
6
130 S.Ct. 147.
7
1 discuss the holistic defense model and the four pillars at length in a recent article: Robin
Steinberg, Heeding Gideon’s Call in the 21st Century: Holistic Defense and the New Public
Defense Paradigm, 70 WASH. & LEE L. REV. 961 (2013). See also Holistic Defense,
www.holisticdefense.org (last visited Nov. 28, 2012) and The Bronx Defenders,
www.bronxdefenders.org (last visited Nov. 28, 2012).
8
Our arraignment checklist serves as a useful guide for attorneys: The Bronx Defenders
Arraignment Checklist. Updated March 2012.
9
Client satisfaction surveys and life outcomes are just two indicators that show that holistic
advocacy is making a difference for clients. In our most recent client survey, we interviewed 132
clients at random, charged with a wide array of crimes. Eighty-four percent of clients interviewed
said that the services they received at The Bronx Defenders were “Excellent” or “Good.”
Ninety-one percent of clients said they would want The Bronx Defenders to represent them again
[Internal Survey, Summer 2012]. In 2010, 87 percent of the hundreds of plea consults given by
our immigration attorneys resulted in an immigration-positive outcome in the criminal case.
[Internal Case data 2010. Also cited in McGregor Smyth, ‘Collateral’ No More: The Practical
Imperative for Holistic Defense in a Post-Padilla World ... Or, How to Achieve Consistently
Better Results for Clients, 31 ST. LOUIS U. PUB. L. REV. 139, 154 (2011).] Last year, we
prevented the eviction of over 150 families with more than 400 household members, and we
prevented over 100 deportations, affecting over 200 family members. Fifty-two clients obtained
legal immigration status. We also preserved jobs and employment licenses for over 100 clients
who are heads of their households, and obtained health insurance for more than 70 families. [Civil
Action Practice. Internal Case Data for 2011].
10
We serve approximately 1,500 Bronx residents per year through intake. Community intake also
ensures “seamless” access to services for community members who are often told by other offices
to “come back later” or to “make an appointment.” Robin Steinberg, Heeding Gideon’s Call in the
21st Century: Holistic Defense and the New Public Defense Paradigm, 70 WASH. & LEE L.
REV. 961 (2013). See also Holistic Defense, www.holisticdefense.org (last visited Nov. 28, 2012)
and The Bronx Defenders, www.bronxdefenders.org (last visited Nov. 28, 2012).
11
The hotline enables The Bronx Defenders to provide pretrial representation in the event of an
arrest or the removal of a child by the Administration for Children’s Services.
12
NY INS § 6805. See also Cindy Rodriguez, Charities to Play Bail Bondsman Role, WNYNC
News
(July
23,
2012).
http://www.wnyc.org/articles/wnyc-news/2012/jul/23/charities-nowallowed-post-bail-poor-new-y
ork-state/.
13
New York City Department of Correction Data cited in Human Rights Watch, The Price of
Freedom: Bail and Pretrial Detention of Low Income Nonfelony Defendants in New York City,
48-9 (December 2010).
14
See William Glaberson, Long FIght Ends Over Arrests for Loitering, N.Y. TIMES, Feb. 7, 2012.
http://www.nytimes.com/2012/02/08/nyregion/new-york-settIes-suit-on-illegal-arrests-forloitering
.html?_r=1. See also Ailsa Chang, City to Award $15M to New Yorkers Unlawfully Arrested for
Loitering, WNYC News Blog, Feb. 7, 2012.
15
Id.
16
According to the New York Civil Liberties Union (NYCLU),in the first nine months of 2012,
New Yorkers were stopped by the police 443,422 times. Eighty-seven percent of people stopped
were Black or Latino. Eighty-nine percent were totally innocent. See NYCLU ‘Stop and Frisk
Data’:http:// www.nyclu.org/content/stop-and-frisk-data (last visited Nov. 28, 2012).
17
The lawsuit was filed on March 28, 2012, in the Southern District of New York. The NYCLU,
LatinoJustice PRLDÉF,and Shearman & Sterling LLP are co-counsel with The Bronx Defenders.
We completed a preliminary injunction hearing in November 2012. According to the NYCLU,
police officers made 329,446 stops on suspicion of trespassing between 2006 and 2010, 12 percent
of all stops. Only 7.5 percent of trespass stops resulted in arrest. See Class Action Lawsuit
Challenges NYPD Patrols of Private Apartment Buildings (March 28, 2012):
http://www.nyclu.org/news/class-action-lawsuit-challenges-nypdpatrols-of-private-apartment-buil
dings.
Case 3:16-cv-00031-JJB-RLB Document 1
01/14/16 Page 1 of 17
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF LOUISIANA
Darwin Yarls, Jr., Leroy Shaw, Jr., and Douglas
Brown On Behalf of Themselves and All Others
Similarly Situated,
Plaintiffs,
vs.
Derwyn Bunton, in his official capacity as
Chief District Defender for Orleans Parish,
Louisiana; James T. Dixon, Jr., in his official
capacity as Louisiana State Public Defender,
Defendants.
*
*
*
*
*
*
*
*
*
*
*
*
*
*
*
Civil Action No. 3:16-cv-31
Judge ______________
Magistrate ______________
Complaint – Class Action
CLASS ACTION COMPLAINT
1
Case 3:16-cv-00031-JJB-RLB Document 1
01/14/16 Page 2 of 17
INTRODUCTION
1.
Plaintiffs Darwin Yarls, Jr., Leroy Shaw, Jr., and Douglas Brown are each
currently detained on separate felony accusations in the Orleans Parish Prison. The prosecution
has not formally charged any of the Plaintiffs with a crime, either by information or indictment.
2.
Plaintiffs cannot afford attorneys. They have requested and been approved for a
public defender from the Orleans Parish Public Defender’s Office (“OPD”).
3.
However, OPD has refused to accept Plaintiffs as clients due to budgetary
shortages and excessive caseloads. OPD has instead placed Plaintiffs on a waiting list for
appointed counsel.
OPD’s refusal to represent Plaintiffs means that they must languish
indefinitely in jail without counsel until OPD secures adequate resources to provide them with an
attorney.
4.
As long as OPD refuses to represent Plaintiffs, their prosecutions cannot proceed.
Meanwhile, Plaintiffs have no access to an attorney for critical pretrial functions that would
ordinarily be performed by defense counsel, such as conducting a preliminary examination to
challenge their arrests and bail conditions; investigating the allegations; filing motions to
preserve potentially exculpatory evidence; or negotiating with the prosecution.
5.
The public defender’s budgetary crisis and its denial of counsel to Plaintiffs both
result from the State of Louisiana’s chronic underfunding of its public defender system. While
the legislature yearly appropriates funds for public defense, the public defender system
overwhelmingly relies on locally generated fines and fees for revenue.
2
Case 3:16-cv-00031-JJB-RLB Document 1
6.
01/14/16 Page 3 of 17
Under this scheme, approximately two-thirds of the state’s budget for public
defenders comes from a $45 fee assessed primarily on traffic tickets. No other state in the nation
is as dependent on local fines and fees to fund indigent defense.1
7.
Louisiana’s structure dictates that the funding available to a public defender is
inherently unreliable. Funding is captive to arbitrary factors like how many highways pass
through a district, the degree to which local law enforcement prioritizes traffic enforcement, or
the extent to which the district attorney relies on pretrial diversion.
8.
As a result, public defenders have continually faced funding emergencies like the
one in Orleans Parish. These crises have in turn forced offices into extreme measures like
refusing clients.
9.
Plaintiffs bring this class action under 42 U.S.C. § 1983 on behalf of themselves
and those similarly situated who have been or will be denied counsel indefinitely because OPD
has refused to represent them.
10.
Plaintiffs seek a declaratory judgment that OPD’s indefinite denial of counsel
violates their Sixth and Fourteenth Amendment rights to counsel, as well as their Fourteenth
Amendment right to due process and the equal protection of the laws.
1
David Carroll, Indigent Defense Progress Stunted by Out-Dated Funding Mechanism in
Louisiana, 6AC: Pleading the Sixth (Sept. 26, 2012), http://sixthamendment.org/indigentdefense-progress-stunted-by-out-dated-funding-mechanism-in-louisiana/.
3
Case 3:16-cv-00031-JJB-RLB Document 1
01/14/16 Page 4 of 17
PARTIES
Plaintiffs
15.
Plaintiff Darwin Yarls, Jr. is an adult resident of Orleans Parish in the State of
Louisiana. He is currently in custody at the Orleans Parish Prison on a felony accusation for
which the prosecution has not formally charged him by information or indictment.
16.
Plaintiff Leroy Shaw, Jr. is an adult resident of Orleans Parish in the State of
Louisiana. He is currently in custody at the Orleans Parish Prison on a felony accusation for
which the prosecution has not formally charged him by information or indictment.
17.
Plaintiff Douglas Brown is an adult resident of Orleans Parish in the State of
Louisiana. He is currently in custody at the Orleans Parish Prison on a felony accusation for
which the prosecution has not formally charged him by information or indictment.
Defendants
18.
Defendant Derwyn Bunton is the Chief Public Defender for the Orleans Parish
Public Defender’s Office.
He is sued in his official capacity for declaratory relief. He is
domiciled in the Eastern District of Louisiana.
19.
Defendant James Dixon is the state public defender for the Louisiana Public
Defender Board (the “Board”), the executive agency charged with administering Louisiana’s
4
Case 3:16-cv-00031-JJB-RLB Document 1
01/14/16 Page 5 of 17
indigent defense system. Dixon is employed by the Board to carry out its responsibilities.
Defendant Dixon’s office approved and supervises OPD’s Restriction of Services Plan. He is
domiciled in the Middle District of Louisiana.
FACTS
20.
Plaintiff Yarls was arrested on January 12, 2016, on an accusation of vehicular
homicide. The alleged accident occurred nearly two months prior to the arrest. The victim was
Mr. Yarls’ longtime girlfriend. The statutory maximum for this offense is thirty years in prison
with hard labor. La. Rev. Stat. Ann. §14:32.1. Mr. Yarls is 51-years old.
21.
Mr. Yarls had his initial appearance before the magistrate on January 12, 2016.
22.
The magistrate found probable cause for the offense and set Mr. Yarls’ bail at
$75,000. Mr. Yarls has been unemployed since the accident and lacks the means to purchase his
release.
5
Case 3:16-cv-00031-JJB-RLB Document 1
45.
01/14/16 Page 8 of 17
OPD refused to represent Mr. Yarls, Mr. Shaw and Mr. Brown as part of its
Restriction of Services protocol (“ROS”).
46.
OPD initiated the ROS on July 1, 2015 – the first day of its 2016 fiscal year – due
to $1 million shortfall in locally generated ($300,000) and state ($700,000) revenue for Fiscal
Year 2015. Ex. 1, Letter from Derwyn D. Bunton, Chief Dist. Def., OPD, to New Orleans
Criminal Justice Stakeholders (Jun. 18, 2015).
47.
Defendant Dixon officially approved the ROS on behalf of the Louisiana Public
Defender Board on December 1, 2015. Ex. 2, Letter from Derwyn D. Bunton, Chief Dist. Def.,
OPD, to the Honorable Arthur Hunter, Jr., Orleans Par. Criminal Dist. Court, Section K (Dec. 11,
2015) at 1.
48.
The ROS included a hiring freeze for current and future staff attorney vacancies.
Ex. 3, Orleans Public Defenders Office, Restriction of Services Plan Fiscal Year 2016 at 3.
Defendant Bunton asserted in the ROS that OPD’s inability to replace or expand staff, combined
with the office’s already excessive number of active cases, would result in clients being placed
on a waiting list for representation.2 Id. at 4, 5.
49.
Since beginning the ROS, OPD has lost a significant number of attorneys,
particularly among its most experienced staff. Ex. 2, at 1. This has caused the caseloads for
2
Orleans Parish also provides funding to OPD as a matter of parish policy. See State v.
Citizen, 898 So. 2d 325, 338 (La. 2005). Since OPD announced its ROS, Orleans Parish has
increased its allocation to OPD by $400,000. Ex. 3, at 2, n.1. This increase prevented OPD from
implementing ten days of staff furloughs in 2016, wherein OPD would not appear at
arraignments and initial appearances for any potential client. But the additional funding is not
enough to keep OPD from placing clients on a waiting list for representation. Ken Daley,
Orleans public defenders need time to find lawyers for cases, Burton says, TIMES-PICAYUNE,
4,
2016),
(Jan.
http://www.nola.com/crime/index.ssf/2016/01/public_defenders_start_declini.html.
8
Case 3:16-cv-00031-JJB-RLB Document 1
01/14/16 Page 9 of 17
most staff attorneys to rise well above the standards set by the American Bar Association and the
Louisiana Public Defender Board. Id. at 1-2.
50.
On November 20 and 23 of 2015, Judge Hunter of the Orleans Parish Criminal
District Court held a hearing on OPD’s ability to provide constitutionally adequate and ethical
representation to its clients.
51.
OPD staff members, including Defendant Bunton, and expert witnesses all
asserted at the hearing that OPD was failing to meet its constitutional and ethical obligations to
clients because too many staff attorneys had unmanageable caseloads. See generally, Ex. 4, Tr.
of Ct. Proceedings Held on the 20th Day of November in 2015, Louisiana v. Wroten et. al, No.
520-385 (Louisiana Criminal District Court, Orleans Parish); Ex. 5, Tr. of Ct. Proceedings Held
on the 23rd Day of November in 2015, Louisiana v. Wroten et. al, No. 520-385 (Louisiana
Criminal District Court, Orleans Parish); Ex. 6,Aff. of Derwyn Bunton, Chief District Defender,
Nov. 20, 2015; Ex. 7, Aff. of Lauren Anderson, Attorney, Nov. 20, 2015; Ex. 8, Aff. of Mariah
Holder, Attorney, Nov. 20, 2015; Ex. 9, Aff. of Phillip Jobe, Investigator, Nov. 20, 2015; Ex. 10,
Aff. of Stanislav Moroz, Attorney, Nov. 20, 2015; Ex. 11, Aff. of Thomas Frampton, Attorney,
Nov. 20, 2015; and Ex. 12, Aff. of Tina Peng, Attorney, Nov. 20, 2015.
52.
Following the hearing, Defendant Bunton announced on December 11, 2015, that
OPD would start declining certain felony cases in mid-January of 2016. Ex. 2, at 2. The
withdrawals would occur at a defendant’s first appearance before the magistrate. Id.
53.
Defendant Bunton predicted that OPD’s inability to accept additional clients
would continue either until its caseloads reduced or it received additional funding to hire more
attorneys. Id.
9
Case 3:16-cv-00031-JJB-RLB Document 1
54.
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Due to Defendant Bunton and OPD’s refusal to represent them, Plaintiffs are
suffering and will continue to suffer irreparable harm. Most critically, they face an unduly
heightened risk of prolonged and unnecessary pretrial detention. See Ex. 3, at 5.
55.
Plaintiffs have no advocates to advise them on whether to request a preliminary
examination under Louisiana law, wherein they could challenge probable cause for their arrests
or argue to lower their bail conditions. See Ex. 6, at ¶5.
56.
Defendant Bunton’s denial of counsel also prevents Plaintiffs from investigating
the charges and preparing a defense, filing motions to preserve potentially exculpatory evidence
or other discovery, conducting additional bail advocacy, or negotiating with the prosecution. See
id.
57.
These critical pretrial functions are all services available to defendants that OPD
has accepted as clients, to those being prosecuted in public defender districts with adequate
funding, or to those who can afford private counsel.
Louisiana’s Funding Scheme for Public Defense
58.
Plaintiffs’ placement on a waiting list for appointed counsel results from the State
of Louisiana’s chronic underfunding of its public defender system.
59.
The Louisiana Constitution obligates the legislature to provide a uniform system
of securing competent representation for indigent defendants. LA. CONST. art. I, § 13.
60.
In 2007, the legislature established the Louisiana Public Defender Fund (the
“Fund”), administered by the Louisiana Public Defender Board, to meet this mandate. The Fund
is primarily appropriated by the legislature, but lacks a guaranteed funding stream or source of
revenue.
10
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61.
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According to Defendant Dixon, the legislature has never provided the Board with
adequate funding to operate the state’s public defender system. Ex. 13, La. Pub. Def. Bd., 2014
Annual Board Report at 22.
62.
The legislature also established in each of the state’s forty-two judicial districts a
Judicial District Indigent Defender Fund, which is administered by the district public defender.
63.
The Fund consists of locally generated fines and fees, the most substantial of
which is a $45 fee assessed in cases when a defendant is convicted after trial, a plea of guilty or
nolo contendere, or when a defendant forfeits a bond.
64.
In practice, most of the revenue generated by this fee comes from traffic tickets.
The fees collected from traffic tickets constitute nearly two-thirds of the funds available for
public defense in Louisiana. Id.
65.
The amount of money a district defender collects from traffic tickets varies widely
from fiscal year to fiscal year, and from district to district. Factors such as the number of
highways passing through a district and law enforcement’s traffic enforcement priorities
contribute greatly to this variance, independent of the actual demand for public defenders in a
particular district.
66.
Defendant Dixon and Defendant Bunton have admitted that Louisiana’s
dependence on locally generated revenue is inherently unreliable and inadequate. Ex. 2, at 3; Ex.
13, at 22.
67.
Since 2010, twenty-nine of the state’s forty-two public defenders have received
emergency funding to avoid financial failure. Ex. 13, at 22. But districts such as the twentyninth (St. Charles Parish), through which multiple state highways pass, typically enjoy budget
11
Case 3:16-cv-00031-JJB-RLB Document 1
01/14/16 Page 12 of 17
surpluses. Four other defender districts anticipate similar surpluses for Fiscal Year 2016. Id. at
23.
68.
Louisiana’s dysfunctional funding scheme has forced at least fifteen of its forty-
two defender districts to announce severe service restrictions in the past year.3 The affected
districts are spread throughout the state, and include both rural and urban parishes.
69.
As with OPD, all of the plans include protocols for establishing waiting lists,
either because a district can no longer accept certain cases involving conflicts of interest among
co-defendants, or to mitigate caseloads that vastly exceed ethical guidelines.
70.
Defendant Dixon has predicted a collapse of the public defender system around
the end of Fiscal Year 2016, when the Board expects nearly three-quarters – thirty-one of the
forty-two – of defender districts to be at or near insolvency. Ex. 13, at 23.
CLASS ALLEGATIONS
71.
Pursuant to Rule 23 of the Federal Rules of Civil Procedure, Plaintiffs bring this
suit on behalf of themselves and all others similarly situated who are or will be affected by
Defendants’ unconstitutional policy of refusing to represent poor people accused of crimes.
72.
Plaintiffs seek to represent a class defined as Orleans Parish arrestees with a right
to appointed counsel who have been or will be denied counsel indefinitely due to their placement
on a waiting list for representation by OPD.
73.
Plaintiffs seek to represent a class of individuals to obtain declaratory relief
establishing that their placement on OPD’s waiting list for appointed counsel violates their
constitutional rights to counsel and to equal protection.
3
The ROS plans for each of these districts are on file with Plaintiffs’ counsel.
12
Case 3:16-cv-00031-JJB-RLB Document 1
01/14/16 Page 14 of 17
CLASS AND INDIVIDUAL CLAIMS FOR RELIEF
Count 1: Sixth and Fourteenth Amendment Right to Counsel
82.
Because Plaintiffs and class members are too poor to afford private counsel,
Defendant Bunton’s placement of individuals on a waiting list for representation violates
Plaintiffs and class members’ Sixth and Fourteenth Amendment right to the assistance of
counsel.
Count 2: Fourteenth Amendment Right to Due Process and Equal Protection Relative to
Individuals Not Placed on OPD’s Waitlist
83.
Plaintiffs and class members have a fundamental right to the assistance of
appointed counsel because they cannot afford private counsel.
84.
Defendant Bunton’s placement of Plaintiffs and class members on a waiting list
for representation creates two classes of similarly situated individuals with a fundamental right to
appointed counsel: eligible criminal defendants who are appointed counsel and eligible criminal
defendants denied counsel by their placement on a waiting list.
85.
Defendant Bunton’s placement of Plaintiffs and class members on a waiting list
for representation while Defendant Bunton provides counsel to other individuals in Orleans
Parish violates Plaintiffs and class members’ Fourteenth Amendment right to due process and
equal protection.
14
Case 3:16-cv-00031-JJB-RLB Document 1
01/14/16 Page 15 of 17
Count 3: Fourteenth Amendment Right to Due Process and Equal Protection Relative to
Criminal Defendants Able to Afford Private Counsel.
86.
Plaintiffs and class members have a fundamental right to the assistance of
appointed counsel because they cannot afford private counsel.
87.
Defendant Bunton’s placement of Plaintiffs and class members on a waiting list
for appointed counsel has created dual criminal justice systems based on wealth in Orleans
Parish. Criminal defendants in Orleans Parish who can afford private counsel have unfettered
access to the assistance of counsel for preliminary examinations and other critical defense
functions.
88.
But Plaintiffs and class members cannot access these protections until Defendants
secure adequate resources to appoint counsel and remove Plaintiffs and class members from the
waiting list.
89.
Defendant Bunton’s placement of Plaintiffs and class members on the waiting list
invidiously discriminates against class members based on wealth, in violation of the Due Process
and Equal Protection Clauses of the Fourteenth Amendment.
RELIEF REQUESTED
WHEREFORE, Plaintiffs request that this Court:
a. Certify this case as a class action.
b. Enter declaratory relief in the form of a judgment establishing that Defendant Bunton’s
placement of individuals on a waiting list for public defender services violates Plaintiffs
and class members’ Sixth and Fourteenth Amendment right to the assistance of counsel.
c. Enter declaratory relief in the form of a judgment establishing that Defendant Bunton’s
placement of Plaintiffs and class members on a waiting list for services while Defendant
15
Case 3:16-cv-00031-JJB-RLB Document 1
01/14/16 Page 16 of 17
Bunton provides counsel to other similarly situated individuals violates Plaintiffs and
class members’ Fourteenth Amendment rights to due process and equal protection.
d. Enter declaratory relief in the form of a judgment establishing that Defendant Bunton’s
denial of counsel to Plaintiffs and class members on the waiting list invidiously
discriminates against class members based on wealth, in violation of the Due Process and
Equal Protection Clauses of the Fourteenth Amendment.
e. Award costs and attorney’s fees pursuant to 42 U.S.C. § 1988.
f. Grant or award any other relief this Court deems just and proper.
Submitted the 14th day of January, 2016.
Respectfully submitted,
/s/ Brandon J. Buskey*, AL ASB2753-A50B (Lead Attorney)
Ezekiel Edwards*, NY 4189304
American Civil Liberties Union Foundation
Criminal Law Reform Project
125 Broad Street, 18th Floor
New York, NY 10004
212-284-7364
[email protected]
[email protected]
* Admission Pending
/s/ Candice C. Sirmon, La No. 30728 (Notice Attorney)
ACLU Foundation of Louisiana
P.O. Box 56157
New Orleans, La 70156
(504) 522-0628
Facsimile: (888) 534-2995
Email: [email protected]
16
The Marshall Project
01.28.2016
Story (with links) available at: https://www.themarshallproject.org/2016/01/28/why-gettingsued-could-be-the-best-thing-to-happen-to-new-orleans-publicdefenders?utm_medium=email&utm_campaign=sharetools&utm_source=email&utm_content=post-top
Why Getting Sued Could Be the Best Thing to Happen to
New Orleans’ Public Defenders
The ACLU takes the cash-poor agency to court to force the cash-poor legislature to
pay.
By ELI HAGER
The public defender’s office in New Orleans says it is so understaffed and overwhelmed that
it can no longer fulfill its Constitutional mission: to provide legal representation to the city’s
poor. So it has refused to take most new felony cases.
Since 2012, the office’s budget has been slashed from $9.5 million to $6 million, including
$700,000 in new cuts this year. With no money to pay additional staff, caseloads have
become so onerous that the lawyers can spend only seven minutes preparing for each of
their cases.
Fed up, the office announced its plan to decline more work on Jan. 11. Within a week, the
American Civil Liberties Union — a customary ally — sued them for doing so. But though
the two organizations will now be adversaries in federal court, their goals and their strategy
are complementary: to compel the state legislature to come up with enough money to
guarantee the Constitutional right that the public defenders say they can no longer protect.
It is an unusual strategy, but a closer look at similar efforts in other states shows it has
proved successful in the past.
In 2003, state-appointed pro bono lawyers for the indigent in Massachusetts initiated a
“caseload stoppage,” complaining that they were underpaid. It caused so much gridlock in
the courts there that the state legislature had to increase their funding, even over the
protestations of the governor, Mitt Romney.
In 2008, Miami-Dade County’s public defender’s office also began turning down new cases.
Five years later, the Florida Supreme Court ruled that such a refusal was justified, in a
decision that was cited by some as the most significant re-affirmation of the Sixth
Amendment right to counsel since the 1963 Supreme Court case Gideon v. Wainwright.
Miami’s chief public defender, Carlos Martinez, says that his office has gotten more money
from the Florida legislature ever since. “Refusing cases was absolutely what stopped the
budget-bleeding,” he says.
In 2011, after Missouri public defenders stopped taking cases, they too were vindicated by
their state’s high court, though the lack of funding for indigent defense there is ongoing.
And in 2013, the Montana public defender filed a motion seeking to decline new cases, and
the governor stepped in to fund them, hoping to avoid the cost of further litigation.
In New Orleans, the ACLU’s lawsuit is just one more part of the same attempt to force the
legislature’s hand. To do that, they must first get a court to acknowledge the Constitutional
violation.
But they can't sue the legislature directly, in part because the state would cite the separationof-powers doctrine: that courts cannot tell the legislative branch to spend more money. “It's
unusual we’re suing somebody we agree with,” said Brandon Buskey, the ACLU lawyer who
is spearheading the lawsuit. “But it’s a different tactic in service of the same goal — more
funding. If we can establish that [what the public defenders are doing] is unconstitutional,
then the legislature would” be in contempt for not providing the funds. The public
defender’s office, which now has a few months to get its own lawyer and respond to the
lawsuit, may even agree with the ACLU’s claims — and if both sides agree, the courts would
likely have to agree, too.
That’s also part of the strategy.
“We don’t necessarily welcome being sued,” says Derwyn Bunton, New Orleans’ chief
public defender, “and I can’t pretend to know the ACLU’s strategy. But we’re approaching
this lawsuit as an opportunity.”
How that plays out in the legislature is unclear.
Eric LaFleur, the chairman of the Louisiana Senate’s finance committee, is in charge of
vetting next year’s budget. He says that the public defenders “have certainly got our
attention,” because some “bad guys will go unprosecuted if they don’t have a lawyer.” But
the likelihood of more funding for indigent defense, he says, remains slim. “They can draw
attention to their plight, but the basic fiscal situation remains the same: With the budget
deficit we have, people who commit crimes are still a low priority.”
Most of the defenders’ funding now comes from a fee attached to traffic tickets, and when
people are driving safely, less money comes in.
“We can’t fund the Sixth Amendment on traffic violations,” says Bunton.
Facing lower pay (staff attorneys make between $45,000 and $77,000 a year) and fewer
resources for winning cases, the most experienced staff members are quitting in droves. In
three years, the office has gone from 70 lawyers to 47. And those who remain are handling a
combined 20,000 cases a year, and have no time to file motions, do legal research, find and
interview witnesses while memories are fresh, or secure video footage before it is
overwritten.
As a result, the “waiting list” for defendants who need counsel has grown, and many are
languishing in jail for weeks, even months, without a lawyer to challenge the amount of their
bail, give them advice during interrogations, or negotiate with prosecutors.
On Nov. 20, a lawyer for the public defenders asked a judge to stop assigning them any
more cases, because they were too overloaded to perform up to the standards of the
Constitution, the Louisiana bar’s Rules of Professional Conduct, and their own code of
ethics. The judge ruled that they had a “compelling” case, but that he was “unable to offer
remedy at this time.”
By January, Bunton had decided to simply refuse the cases. The cost for the individual
defendants who will now go unrepresented could be devastating. On the one hand, judges
could conceivably dismiss these cases or appoint pro bono attorneys to fill in. But the more
likely scenario, says Katie Schwartzmann, co-director of the MacArthur Justice Center in
New Orleans and an expert on the city’s justice system, is that everyone whom OPD refuses
to help will end up stuck in jail. Without public defenders, she says, “We can expect that
innocent people will be convicted… If cases cannot move forward, our jail population is
going to balloon and all of the recent progress [in reducing incarceration levels] will be
undone.”
But as a matter of strategy, the public defenders’ plan looks more promising. If their work
slowdown garners enough national media coverage, or if the New Orleans justice system
grinds to a halt as judges scramble to find replacement lawyers, the legislature may have to
offer more funding when it convenes in March.
Colette Tvedt, the director of public defense issues for the National Association of Criminal
Defense Lawyers, hopes that this may even be a “tipping point” in the fight for adequate
funding for indigent defense. “Other public defender’s offices are really taking note,” she
says. “Across the country, they’re doing ‘workload studies’: Hiring accounting firms so they
can actually document the number of cases they’re handling, so that if they try something
like what New Orleans is doing, legislatures will have to understand what ‘overworked’ really
means.”
As for Bunton, he is struggling with his decision not to represent some of New Orleans’
poorest defendants — but insists that he “completely rejects the notion that the poor only
deserve what we can give them.”
“What I don't understand,” he adds, “is why we have to be so creative to compel the
government to protect a Constitutional right.”
PAUL D. BUTLER
Poor People Lose: Gideon and the Critique of Rights
ABSTRACT. A low income person is more likely to be prosecuted and imprisoned
post-Gideon than pre-Gideon. Poor people lose in American criminal justice not because they
have ineffective lawyers but because they are selectively targeted by police, prosecutors, and law
makers. The critique of rights suggests that rights are indeterminate and regressive. Gideon
demonstrates this critique: it has not improved the situation of most poor people, and in some
ways has worsened their plight. Gideon provides a degree of legitimacy for the status quo. Even
full enforcement of Gideon would not significantly improve the loser status of low-income people
in American criminal justice.
AUTHOR. Professor, Georgetown University Law Center; Yale College, B.A.; Harvard Law
School, J.D. For helpful comments on this Essay, I thank Kristin Henning, Allegra McLeod,
Gary Peller, Louis Michael Seidman, Abbe Smith, Robin West, and the participants in a faculty
workshop at Florida State University College of Law. I am also grateful for the excellent editorial
assistance of Robert Quigley, Yale Law School, J.D. 2014.
2176
ESSAY CONTENTS
INTRODUCTION
2178
I. HOW POOR PEOPLE LOSE IN AMERICAN CRIMINAL JUSTICE
2179
1l. THE CRITIQUE OF RIGHTS
2187
III. THE CRITIQUE OF RIGHTS, APPLIED TO GIDEON
2190
A. The Liberal Overinvestment in Rights
2190
B. The Indeterminacy of Rights
2192
C. Rights Discourse and Mystification
2194
D. Isolated Individualism
2195
E. Rights Discourse as an Impediment to Progressive Social Movements
2196
IV. OTHER COMMENTS ON RIGHTS DISCOURSE IN CRIMINAL
PROCEDURE
CONCLUSION: CRITICAL TACTICS
2198
2201
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INTRODUCTION
Gideon v. Wainwright is widely regarded as a milestone in American
criminal justice. When it was decided in 1963, it was seen as a major step
forward in assuring fairness to poor people and racial minorities. Yet, fifty
years later, low-income and African-American people in the criminal justice
system are considerably worse off. It would be preferable to be a poor black
charged with a crime in 1962 than now, if one's objective is to avoid prison or
serve as little time as possible.
The "critique of rights," as articulated by critical legal theorists, posits that
"nothing whatever follows from a court's adoption of some legal rule"' and
that "winning a legal victory can actually impede further progressive change."'
My thesis is that Gideon demonstrates the critique of rights. Arguably, Gideon
has not improved the situation of accused persons, and may even have
worsened their plight.
The reason that prisons are filled with poor people, and that rich people
rarely go to prison, is not because the rich have better lawyers than the poor. It
is because prison is for the poor, and not the rich. In criminal cases poor people
lose most of the time, not because indigent defense is inadequately funded,
although it is, and not because defense attorneys for poor people are
ineffective, although some are. Poor people lose, most of the time, because in
American criminal justice, poor people are losers. Prison is designed for them.
This is the real crisis of indigent defense. Gideon obscures this reality, and in
this sense stands in the way of the political mobilization that will be required to
transform criminal justice.
I know that, for some readers, these claims are counterintuitive, and I ask
these readers' indulgence for the time it takes to read this Essay, in which I will
attempt to prove my claims. It is also important to emphasize that I am not
making a "but-for" claim of causation. Gideon is not responsible for the
exponential increase in incarceration or the vast rise in racial disparities in
criminal justice. As I explain later, however, Gideon bears some responsibility
for legitimating these developments and diffusing political resistance to them.
It invests the criminal justice system with a veneer of impartiality and
1.
327 U.S. 335 (1963).
2.
Mark Tushnet, The Critique of Rights, 47 SMU L. REv. 23, 32 (1993). Tushnet refers to this
component of the critique of rights as the "indeterminacy thesis."
3. Id. at 26.
2178
POOR PEOPLE LOSE
respectability that it does not deserve. Gideon created the false consciousness
that criminal justice would get better. It actually got worse. Even full
enforcement of Gideon would not significantly improve the wretchedness of
American criminal justice.
In Lafler v. Cooper^ and Missouri v. Frye,s the Supreme Court extended the
right to counsel to the plea bargaining stage of prosecution. Some people are
having a Gideon moment 6 : the Court's rulings seem like important victories for
indigent accused persons because, as Justice Kennedy observed in Lafler,
"criminal justice today is for the most part a system of pleas, not a system of
trials."' It seems cynical and defeatist to recall Mark Tushnet's observation that
"nothing whatever follows from a court's adoption of some legal rule." But
one goal of this Essay is to disrupt the "cruel optimism" that Gideon discourse
creates.
This Essay proceeds as follows. The first Part develops the claim that the
poor-especially poor African Americans-are "losers" in American criminal
justice and that providing them with more, or better, defense attorneys would
not substantially alter their subordination. Part II describes the critique of
rights, and Part III applies it to Gideon. Part IV compares the critique of rights
to other comments on rights discourse in criminal procedure. The Essay
concludes with some recommendations on what advocates for poor people
might do that would help them more than discoursing about rights.
I. HOW POOR PEOPLE LOSE IN AMERICAN CRIMINAL JUSTICE
Indigent persons are much more likely to go to prison today than in the era
when Gideon was decided. In 1960, the U.S. imprisonment rate was
approximately 126 per oo,ooo population. 9 By, 2008, the rate had quadrupled,
1376
4-
132 S. Ct.
56.
132 S. Ct. 1399 (2012).
(2012).
See Adam Liptak, Justices' Ruling Expands Rights of Accused in Plea Bargains, N.Y. TIMEs,
Mar. 21, 2012, http://www.nytimes.com/2o2/o3/22/us/supreme-court-says-defendants
-have-right-to-good-lawyers.html.
Ct. at 1388.
7.
132 S.
8.
Tushnet, supra note
g.
Margaret Werner Cahalan, Historical Corrections Statistics in the United States, 185o-1984,
BUREAU OF JUST. STAT. 30 (1986), https://www.ncjrs.gov/pdffilesi/pr/1o2529.pdf.
2,
at
32.
2179
THE YALE LAW JOURNAL
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2013
to 504 per loo,ooo. o
African-American defendants are even worse off. In 1960, three years
before Gideon, the black incarceration rate was approximately 66o per
oo,ooo." By 1970, it had fallen some, to slightly under 6oo per 100,000.12 In
2010, the rate of incarceration among black males was an astronomical 3,074
per loo,ooo.
For men hoping to avoid prison, being both poor and black is a lethal
combination. More than two-thirds of black males who do not have college
degrees will be incarcerated at some point in their lives. 4 Black male high
school dropouts are more likely to be imprisoned than employed."
What is it about being poor and African American that substantially
increases the risk of incarceration? The answer, rather obviously, has much to
do with class and race and, less obviously, little to do with the quality of the
indigent defense system. This Essay employs data about both race and class to
demonstrate this claim, but at the start I want to note that it is impossible to
disaggregate the effects of race and class. The answer to the questions, "Are
poor defendants treated unfairly because many of them are black, are black
defendants treated unfairly because many of them are poor, or is there some
other dynamic at work?" is "yes."' 6 Indeed, the Gideon decision itself was
William J. Sabol, Heather C. West & Matthew Cooper, Prisoners in 2008, BUREAU OF JUST.
STAT. 6 (2009), http://bjs.ojp.usdoj.gov/content/pub/pdf/po8.pdf
n1. See Margaret Cahalan, Trends in Incarcerationin the United States Since 188o: A Summary of
1o.
Reported Rates and the Distribution of Offenses, 25 CRiME & DELINQUENCY 9, 40 tbl.I (1979)
(reporting that there were 125,000 black adult inmates in the U.S. in 1960); Race for the
United States, Regions, Divisions, and States: 1960, U.S. CENSUS BUREAU (2002),
http://www.census.gov/population/www/documentation/twpsoo56/tabA-o8.pdf
12.
(stating
that the U.S. black population in 1960 was 18,871,831).
See Cahalan, supra note 11, at 40 tbl.ii (reporting that 134,oo black adult inmates in the
U.S. in 1970); Racefor the United States, Regions, Divisions, and States: 1970, U.S. CENSUS
BUREAU (2002),
http://www.census.gov/population/www/documentation/twpsoos6/tabA
-05.pdf (stating that the U.S. black population in 1970 was 22,580,289).
13. Paul Guerino, Paige M. Harrison & William J. Sabol, Prisoners in 201o,
STAT. 27 (2010), http://bjs.ojp.usdoj.gov/content/pub/pdf/pio.pdf.
BUREAU OF JUST.
14.
Bruce Western & Becky Pettit, Incarcerationand Social Inequality, DAEDALUS, Summer
at 8, 16.
1s.
Id. at 12.
2010,
i6. For a discussion of the problems and benefits of analyzing modalities of subordination, see
Kimberle Crenshaw, Demarginalizing the Intersection of Race and Sex: A Black Feminist
Critique of AntidiscriminationDoctrine, Feminist Theory and Antiracist Politics, 1989 U. CHI.
LEGAL F. 139, 166-67; and Kimberld Williams Crenshaw, Race, Reform and Retrenchment:
2180
POOR PEOPLE LOSE
explicitly a class intervention, but implicitly, like other Warren court criminal
procedure cases, a racial justice intervention as well."
Approximately two decades after Gideon, two trends began in criminal
justice, the effects of which were to overwhelm any benefits that Gideon
provided to low-income accused persons. First, the United States experienced
the most pronounced increase in incarceration in the history of the world."
Second, there was a corresponding exponential increase in racial disparities in
incarceration.
This dramatic expansion of incarceration was accomplished on the backs of
poor people. The Bureau of Justice Statistics reports that the "generally
accepted indigency rate" for state felony cases near the time when Gideon was
decided was 43%.'9 Today approximately 8o% of people charged with crime are
poor. 20
Other data further illustrate the correlation between poverty and
incarceration. In 1997, more than half of state prisoners earned less than
$1,000 in the month before their arrest." This would result in an annual
income of less than $12,000, well below the $25,654 median per capita income
in 1997.2 The same year, 35% of state inmates were unemployed in the month
before their arrest, compared to the national unemployment rate of 4-9%-23
Approximately 70% of state prisoners have not graduated from high
Transformation and Legitimation in AntidiscriminationLaw,
lol
HARv. L. REV. 1331 (1988)
[hereinafter Crenshaw, Race, Reform and Retrenchment].
17.
J. Klarman, The
Puzzling Resistance to Political Process Theory, 77 VA. L. REv. 747, 763-66 (1991); Carol S.
Steiker, Second Thoughts about FirstPrinciples, 107 HARV. L. REv. 820, 838-52 (1994); see also
See JOHN HART ELY, DEMOCRACY AND DISTRUST 97 (198o); Michael
William
J. Stuntz, The Uneasy Relationship Between Criminal Procedure and CriminalJustice,
107 YALE L.J. 1, 5 (1997) ("Warren-era constitutional criminal procedure began as a kind of
antidiscrimination law.").
18. See Adam Gopnik, The Caging of America: Why Do We Lock Up So Many People?, NEW
http://www.newyorker.com/arts/critics/atlarge/2012/01/30
30,
2012,
Jan.
YORKER,
/12013ocrat atlarge-gopnik ("Mass incarceration on a scale almost unexampled in human
history is a fundamental fact of our country today . . .
19.
Stuntz, supra note 17, at 7 n-7.
20.
Mary Sue Backus & Paul Marcus, The Right to Counsel in CriminalCases, A National Crisis, 57
HASTINGS L.J. 1031, 1034 (20o6).
21.
Caroline Wolf Harlow, Educationand CorrectionalPopulations,BUREAU OF JUST. STAT. 1, 10 &
tbl.14 (2003), http://bjs.ojp.usdoj.gov/content/pub/pdf/ecp.pdf.
22.
Per Capita Personal Income by State, BUREAU OF Bus. & ECON. RES., http://bber.unm.edu
/econ/us-pci.htm (last visited Mar. 29, 2013).
23.
Harlow, supra note
21,
at i, lo.
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2013
school.' Only 13% of incarcerated adults have any post-high school education,
compared with almost 50% of the non-incarcerated population.s
College graduation, on the other hand, serves to insulate Americans from
incarceration. Only o.1% of bachelor's degree holders are incarcerated,
compared to 6.3% of high school dropouts. 26 Put another way, high school
dropouts are sixty-three times more likely to be locked up than college
graduates.
The post-Gideon expansion of the prison population was also accomplished
on the backs of black people. There have been always been racial disparities in
American criminal justice, but from the 1920S through the 1970s they were
"only" about two-to-one." Now the black/white incarceration disparity is
seven-to-one.2' There are more African Americans under correctional
supervision than there were slaves in 1850.2'9 As Michelle Alexander states, "If
mass incarceration is considered as a system of social control- specifically,
racial control -then the system is a fantastic success.""o
In summary, poor people and blacks have never fared as well as the
nonpoor and the nonblack in American criminal justice. Since the 1970s,
however, the disparities have gotten much worse. Something happened that
dramatically increased incarceration and dramatically raised the percentage of
the incarcerated who are poor and black. What happened is usually attributed
to two main causes: the war on drugs and the law-and-order or so-called
tough-on-crime policies of American leaders since the Nixon Administration."
24.
25.
26.
Id. at i.
Id. at 1-2 & tbl.i.
Andrew Sum, Ishwar Khatiwada & Joseph McLaughlin, The Consequences ofDropping Out of
High School: Joblessness andjailingfor High School Dropoutsand the High Costfor Taxpayers io
(Ctr. for Labor Mkt. Studies Publ'ns, Paper No. 23, 2009), http://hdl.handle.net
/20
27.
28.
4 7 /d20000 5 9
6.
Pamela E. Oliver & Marino A. Bruce, Tracking the Causes and Consequences of
Racial Disparities in Imprisonment 2-3 (2001) (unpublished project proposal
to the National Science Foundation), http://www.ssc.wisc.edu/-oliver/RACIAL/Reports
/nsfAugoinarrative.pdf.
Heather C. West, PrisonInmates at Midyear 2009 -Statistical Tables, BUREAU OF JUST. STAT.
21 tbl.18 (2010), http://bjs.ojp.usdoj.gov/content/pub/pdf/pimo9st.pdf.
29. MICHELLE ALEXANDER, THE NEW JIM CROW: MASS INCARCERATION IN THE AGE OF
COLORBLINDNESS 271 n.7 (2010).
30.
31.
Id. at 225.
See id. at 271 n.7; see also WILLIAM
136
2182
(2011)
J. STUNTZ, THE COLLAPSE OF AMERICAN CRIMINAL JUSTICE
(describing the period between Reconstruction and the Great Depression, and
POOR PEOPLE LOSE
Thus far I have made the case that prisons are populated by people who are
disproportionately poor and African American. My next step is to demonstrate
that this is not a coincidence, in order to further support the claim that the
poor are losers in American criminal justice.
Mass incarceration's process of control-the social and legal apparatus by
which poor people become losers in criminal justice -can be broken into five
steps.
(1) The spaces that poor people, especially poor African Americans, live in
receive more law enforcement in the form of police stops and arrests."
The criminal law deliberately ignores the social conditions that breed
some forms of law-breaking." Deprivations associated with poverty are
usually not "defenses" to criminal liability, although they may be factors
considered in sentencing.
(2)
(3) African Americans, who are disproportionately poor, are the target of
explicit and implicit bias by key actors in the criminal justice system,
including police, prosecutors," and judges.3 s
noting that "racial bias, though real and powerful, was ... weaker than one might imagine"
and that "nothing comparable to the massive racial tilt in today's drug prisoner population
existed in the Gilded Age North").
32.
See Lawrence D. Bobo & Victor Thompson, Unfair by Design: The War on Drugs, Race, and
the Legitimacy of the CriminalJustice System, 73 Soc. RES. 445 (2006); Tracey Meares, Place
and Crime, 73 CHI.-KENT L. REv. 669 (1998). For an argument that the African-American
community actually benefits from more law enforcement, see RANDALL KENNEDY, RACE,
CRIME, AND THE LAW (1997), and for a critique of this argument, see Paul Butler, (Color)
Blind Faith: The Tragedy of Race, Crime, and the Law, iii HARV. L. REV. 1270 (1998)
(reviewing KENNEDY, supra).
33.
See BRUCE WESTERN, PUNISHMENT AND INEQUALITY IN AMERICA (20o6); Richard Delgado,
"Rotten Social Background": Should the Criminal Law Recognize a Defense of Severe
EnvironmentalDeprivation?, 3 LAW & INEQUALITY 9, 9-10 (1985); see also Jones v. City of Los
Angeles, 444 F.3 d 1118, 1120 ( 9 th Cir. 2006) (holding unconstitutional under the Eighth
Amendment a Los Angeles ordinance criminalizing "sitting, lying, or sleeping on public
streets and sidewalks at all times and in all places"), vacated because of settlement, so F.3d
ioo6 (2007); United States v. Alexander, 471 F.2d 923, 957-65 (D.C. Cir. 1973) (Bazelon,
C.J., dissenting) (arguing that a "rotten social background" defense and corresponding jury
instruction may be appropriate in some cases).
34.
See ANGELA
J.
DAVIS, ARBITRARY JUSTICE: THE POWER OF THE AMERICAN PROSECUTOR 3-42
(1997).
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(4) Once any person is arrested, she becomes part of a crime control system
of criminal justice, in which guilt is presumed. 6 Prosecutors, using the
legal apparatus of expansive criminal liability, recidivist statutes, and
3
mandatory minimums,"
coerce guilty pleas by threatening defendants with
vastly disproportionate punishment if they go to trial.38
(5) Repeat the cycle. A criminal caste is created. Two-thirds of freed
prisoners are rearrested, and half return to prison, within three years of
35.
Prosecutors are more likely to charge black suspects than whites, even controlling for factors
like prior criminal record. See Robert J. Smith & Justin D. Levinson, The Impact of Implicit
Racial Bias on the Exercise of ProsecutorialDiscretion, 35 SEATTLE U. L. REV. 795, 8o6 (2012).
While African Americans do not disproportionately use or sell drugs, they are over one-third
of those arrested for drug crimes. HUMAN RIGHTS WATCH, DECADES OF DISPARITY: DRUG
ARRESTS AND RACE IN THE UNITED STATES 4 (2oog); HUMAN RIGHTS WATCH, TARGETING
BLACKS: DRUG ENFORCEMENT AND RACE IN THE UNITED STATES 3, 41-44 (20o8). Research
on implicit bias suggests that blacks are more likely to be suspected of crime, convicted, and
punished for longer than others. For a summary of this research, see Smith & Levinson,
supra, at 8oo-oi; see also ALEXANDER, supra note 29, at 103-05 (surveying research on racial
bias and criticizing the Supreme Court for "adopting rules that would maximize-not
minimize-the amount of racial discrimination that would likely occur").
36.
Herbert L. Packer, Two Models of the CriminalProcess, 113 U. PA. L. REv. 1, 11 (1964).
37.
The Supreme Court has blessed this practice. In Bordenkircher v. Hayes, 434 U.S. 357 (1978),
Paul Hayes was charged with uttering a forged instrument in the amount of $88.30. The
maximum sentence for the offense was ten years, and the prosecutor offered to recommend
a five-year sentence in exchange for a guilty plea. The prosecutor also indicated that if there
was no guilty plea, he would charge Mr. Hayes under a recidivist statute that would require
a life sentence if Mr. Hayes was convicted. Mr. Hayes turned down the plea, the prosecutor
won his conviction, and Mr. Hayes received a life sentence. Id. at 358-59. The Supreme
Court found no constitutional violation, although it stated that "the breadth of discretion
that our country's legal system vests in prosecuting attorneys carries with it the potential for
both individual and institutional abuse." Id. at 365. For a powerful critique of prosecutorial
abuse of discretion in the plea-bargaining process, see Jonathan A. Rapping, Who's
Guarding the Henhouse? How the American ProsecutorCame To Devour Those He Is Sworn To
Protect, 51 WASHBURN L.J. 513 (2012).
38.
2184
John H. Langbein, Torture and Plea Bargaining, 46 U. CHI. L. REv. 3, 18 (1978) ("The
modern public prosecutor commands the vast resources of the state for gathering and
generating accusing evidence. We allowed him this power in large part because the criminal
trial interposed the safeguard of adjudication against the danger that he might bring those
resources to bear against an innocent citizen-whether on account of honest error,
arbitrariness, or worse. But the plea bargaining system has largely dissolved that
safeguard.").
POOR PEOPLE LOSE
their release.39
This description is not intended to be novel, or especially provocative.
Other observers of American criminal justice have made similar points about
the process by which being poor and African American increases the risk of
incarceration. Richard S. Frase, for example, writes that
poverty and lack of opportunity are associated with higher crime rates;
crime leads to arrest, a criminal record, and usually a jail or prison
sentence; past crimes lengthen those sentences; offenders released from
prison or jail confront family and neighborhood dysfunction, increased
risks of unemployment, and other crime-producing disadvantages; this
make them likelier to commit new crimes, and the cycle repeats itself.40
Michelle Alexander notes:
It is simply taken for granted that, in cities like Baltimore and Chicago,
the vast majority of young black men are currently under the control of
the criminal justice system or branded criminals for life. This
extraordinary circumstance
-unheard
of in the rest of the world-is
treated here in America as a basic fact of life, as normal as separate
water fountains were just a half century ago.4 '
What if every person accused of a crime had an excellent lawyer?
Proponents of Gideon suggest it would be an important step in making criminal
justice more equitable. For example, David Cole writes that the "story of the
enforcement of the right to counsel suggests that our failure to make good on
Gideon's promise is no mere mistake. Rather, it is the single most important
mechanism by which the courts and society ensure a double standard in
constitutional rights protection in the criminal law." 42
In reality, full enforcement of Gideon probably would not significantly
impact the "double standard." If mass incarceration and racial disparities were
caused by poor defense attorneys, it would make sense to think of Gideon as the
39.
40.
Patrick A. Langan & David J. Levin, Recidivism ofPrisonersReleased in 1994, BUREAU OF JUST.
STAT. 7 tbl.8 (2002), http://bjs.ojp.usdoj.gov/content/pub/pdf/rpr94.pdf.
Richard S. Frase, What Explains PersistentRacial Disproportionalityin Minnesota's Prisonand
Jail Populations?,38 CRIME &JUST. 201, 263 (2009).
supra note 29,
at 176.
41.
ALEXANDER,
42.
DAVID COLE, NO EQUAL JUSTICE 65 (1999).
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appropriate solution. But, as the five-step process described above
demonstrates, defenders are not the cause.
I want to be careful not to discount the difference that an excellent defense
attorney can make, and how much this matters for individual clients. At the
same time, I don't want to overclaim, as I believe Professor Cole does, that full
enforcement of Gideon would bring anything remotely resembling equality to
American criminal justice.
Empirical evidence of whether attorney ability makes a difference in trial
outcomes is inconclusive. An important study by James M. Anderson and Paul
Heaton suggests that public defenders in Philadelphia, compared to appointed
counsel, "reduce their clients' murder conviction rate by 19%. They reduce the
probability that their clients receive a life sentence by 62%. Public defenders
reduce overall time served in prison by 24%."' Another study by David Abrams
and Albert Yoon suggests that "going from the tenth to ninetieth percentile of
public defender ability decreases the defendant's expected sentence length by
5.8 months. . . . Clearly, the public defender to whom a defendant is
assigned ... has a significant impact on how much time the defendant will
serve."" But another empirical study found that "the skill level of the defense
attorney plays no role in determining the outcome of a criminal trial in everyday
cases with non-celebrity defendants." 45
There is indirect evidence from courts that the scale of punishment of the
poor would not be reduced by more effective lawyers. In Strickland v.
Washington, the Supreme Court established a two-pronged test to determine
ineffective assistance of counsel.*6 First, the counsel's representation must fall
below an "objective standard of reasonableness." 47 Second, there must be a
"reasonable probability that, but for counsel's unprofessional errors, the result
of the proceeding would have been different."48
In practice the tests rarely leads to a finding of ineffectiveness. I do not
want to suggest that the Strickland test is the appropriate measure of effective
43. James M. Anderson & Paul Heaton, How Much Difference Does the Lawyer Make? The Effect of
Defense Counsel on Murder Case Outcomes, 122 YALE L.J. 154, 159 (2012).
44. David S. Abrams & Albert H. Yoon, The Luck of the Draw: UsingRandom Case Assignment To
Investigate Attorney Ability, 74 U. CHI. L. REV. 1145, 1166-67 (2007).
45. Jennifer Bennett Shinall, Note, SlippingAway from Justice: The Effect ofAttorney Skill on Trial
Outcomes, 63 VAND. L. REv. 267, 291 (2010).
46. 466 U.S. 668 (1984).
47. Id. at 688.
48. Id. at 694.
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POOR PEOPLE LOSE
assistance.4 9 I do want to suggest, however, that courts are probably correctly
applying the test. As stated above, the most favorable empirical evidence
suggests that more able defenders reduce average sentences by 24%. For
individual defendants, this reduction is very important. But even with a 24%
reduction in every sentence, American criminal justice would remain the
harshest and most punitive in the world. The poor, and especially poor people
of color, are its primary victims.
II.
THE CRITIQUE OF RIGHTSso
Robin West has described the critique of rights as "one of the most vibrant,
important, counterintuitive, challenging set of ideas that emerged from the
legal academy over the course of the last quarter of the twentieth century.""
Many of these ideas were articulated as part of the critical legal studies
movement that began in the 1980s." In a seminal 1984 article, Mark Tushnet
described rights as unstable, indeterminate, overly abstract, and politically
harmful to the Left.s" The critique of rights was intended as an "act of creative
destruction that may help us build societies that transcend the failures of
49.
According to the National Right to Counsel Committee, a blue-ribbon panel that evaluated
the indigent counsel system, "Since Strickland was decided, commentators have been
virtually unanimous in their criticisms of the opinion." NAT'L RIGHT TO COUNSEL COMM.,
CONSTITUTION PROJECT, JUSTICE DENIED: AMERICA'S CONTINUING NEGLECT OF OUR
CONSTITUTIONAL RIGHT TO COUNSEL 40-41 (2oo9), http://www.constitutionproject.org
/pdf/139.pdf. The critiques of Strickland have focused on the difficulty defendants have in
proving that their cases would have come out differently had their lawyers performed better.
Courts usually hold that they would not have.
so. For seminal texts making the critique of rights, see Peter Gabel, The Phenomenology ofRightsConsciousness and the Pact of the Withdrawn Selves, 62 TEX. L. REV. 1563 (1984); Duncan
Kennedy, The CritiqueofRights in CriticalLegal Studies, in LEFT LEGALISM/LEFT CRITIQUE 178
(Wendy Brown & Janet Halley eds., 2002); and Mark Tushnet, An Essay on Rights, 62 TEX.
L. REV. 1363 (1984).
51.
Robin L. West, Tragic Rights: The Rights Critique in the Age of Obama, 53 WM. & MARY L.
REV. 713, 715 (2011).
S2.
53.
For a longer description and intellectual history of the critique of rights, see Kennedy, supra
note 5o.
Tushnet, supra note 50, at 1363-64. Tushnet's critique was contextual, i.e., based on how
rights function in the United States. He observed: "[T]here is nothing odd about saying
that rights in Poland are a good thing, while rights in the United States are not. They are,
after all, different cultures." Id. at 1382.
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capitalism."s4
The critique of rights has evolved to many sets of critiques.ss One
description on a website curated by a group of legal theorists who teach or have
taught at Harvard Law School summarizes five basic elements:
(i) The discourse of rights is less useful in securing progressive social
change than liberal theorists and politicians assume.
(2)
Legal rights are in fact indeterminate and incoherent.
(3) The use of rights discourse stunts human imagination and mystifies
people about how law really works.
(4) At least as prevailing in American law, the discourse of rights reflects
and produces a kind of isolated individualism that hinders social solidarity
and genuine human connection.
(5) Rights discourse can actually impede progressive movement for
genuine democracy and justice.s6
Most of the critiques make the claim that rights are indeterminate. The
proposition is that "the law is not a fixed and determined system, but rather an
unruly miscellany of various, multifaceted, contradictory practices, altering
from time to time and from context to context as different facets of law are
privileged or suppressed."7 Robin West describes the indeterminacy thesis as
meaning that "the articulation of an interest as a 'right' by no means creates an
unmoveable bulwark against change, interference, or recalibration of the
protection of the various interests . . . toward which it so desperately strives.
54.
Id. at 1363 (footnote omitted).
55.
See, e.g., West, supra note 51, at 716 (describing a "three-prong rights critique ...
that U.S.
constitutional rights politically insulate and valorize subordination, legitimate and thus
perpetuate greater injustices than they address, and socially alienate us from community").
56. Critical Perspectives on Rights, BRIDGE, http://cyber.Iaw.harvard.edu/bridge/CriticalTheory
/rights.htm (last visited Jan. 27, 2013).
57.
Robert Gordon, Some Critical Theories ofLaw and Their Critics, in THE POLITICS OF LAw 641,
655 (David Kairys ed., 3 d ed. 1998).
58.
ROBIN WEST, NORMATIVE JURISPRUDENCE: AN INTRODUCTION 126 (2011).
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POOR PEOPLE LOSE
Rights are indeterminate because they are too abstract to be useful in deciding
particular cases, or because they conflict with other rights. When social
progress occurs after a right is declared, it is because of the social and political
context in which the right is declared rather than the right itself.
Most critiques also claim that rights are regressive. Winning a "right" in a
court case either has no connection to advancing a political goal, or actually
impedes political goals." Gary Peller, for example, faults rights discourse for
constituting "a narrative of legitimation, a language for concluding that
particular social practices are fair because they are objective and unbiased."o
Rights impede progressive change because they divert attention and resources
away from material deprivations, and, according to some theorists, because
rights are individual, rather than about the welfare of groups.
Some critical race theorists "acknowledg[e] and affirm[ ] ... that rights
may be unstable and indeterminate" but still provide a limited defense of
them. z Patricia Williams, for example, maintains that "rights rhetoric has been
and continues to be an effective form of discourse for blacks."6 ^ In this view
rights build solidarity among rights holders, give voice to the previously
voiceless, I and stigmatize subordination." Likewise, Kimberld Crenshaw is
persuaded that "there simply is no self-evident interpretation of civil rights
inherent in the terms themselves,"6 but she finds the critique of rights
"incomplete" because it fails "to appreciate fully the transformative significance
of the civil rights movement in mobilizing Black Americans and generating
new demands."6
Tushnet, supra note 2, at 23.
6o. Gary Peller, Race Consciousness, 1990 DUKE L.J. 758, 775. See generally Alan David Freeman,
59.
Legitimizing Racial Discrimination Through Antidiscrimination Law: A Critical Review of
Supreme Court Doctrine, 62 MINN. L. REV. 1049 (1978).
61.
See MAlu
62. Patricia
KELMAN, A GUIDE TO CRITICAL LEGAL STUDIES 275-76 (1990).
J. Williams, Alchemical Notes: Reconstructing Ideals from Deconstructed Rights, 22
HARv. C.R.-C.L. L. REV. 401, 409 (1987) (footnote omitted).
63. Id. at 410.
64. Id. at 414 .
65.
Id. at 4 25-26.
66. See Richard Delgado, The Ethereal Scholar: Does CriticalLegal Studies Have What Minorities
Want?, 22 HARv. C.R.-C.L. L. REV. 301, 305 (1987) ("Rights do, at times, give pause to those
who would otherwise oppress us.").
67. Crenshaw, Race, Reform, and Retrenchment, supra note 16, at 1344.
68. Id. at 1356.
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III. THE CRITIOUE OF RIGHTS, APPLIED TO GIDEON
A law review article called The Right to Counsel in CriminalCases, A National
Crisis begins with a series of stories in which criminal defendants were either
denied lawyers or had bad lawyers.6 9 This part of the article is titled "How Can
This Be Happening?""o The critique of rights explains how. Using the five
elements just described, this Part attempts to demonstrate that Gideon
exemplifies the reasons for skepticism elucidated by the critique of rights.
A. The Liberal Overinvestment in Rights
Gideon was decided during the 196os, a period during which, according to
Mark Tushnet, the Supreme Court took a "brief, perhaps aberrational, and
sometimes overstated role ... in advancing progressive goals." 7 1 Perhaps that
was why it seemed, at the time, like a victory for the poor and minorities.
Gideon was one of those classic Warren Court opinions that provided hope not
just about criminal justice, but about economic and racial justice as well."
That hope is long gone. If Gideon was supposed to make the criminal justice
system fairer for poor people and minorities, it has been a spectacular failure.
The National Right to Counsel Committee, a panel that was created in 2004 to
conduct a comprehensive survey of the state of indigent defense, reported:
The right to counsel is now accepted as a fundamental precept of
American justice.... Yet, today, in criminal and juvenile proceedings in
state courts, sometimes counsel is not provided at all, and it often is
supplied in ways that make a mockery of the great promise of the
69. Backus & Marcus, supra note 20, at 1031.
70.
Id. at 1031.
71. Tushnet, supra note
72.
2, at 34.
See Dan M. Kahan & Tracey L. Meares, Foreword: The Coming Crisis of Criminal Procedure,
86 GEO. L.J. 1153, 1153 (1998) ("Law enforcement was a key instrument of racial repression,
in both the North and the South, before the 1960's civil rights revolution. Modern criminal
procedure reflects the Supreme Court's admirable contribution to eradicating this incidence
of American apartheid."); cf Michael J. Klarman, The Racial Origins of Modern Criminal
Procedure, 99 MiCH. L. REV. 48 (2000) (describing the process by which egregious civil
rights violations motivated by race have historically led the Supreme Court to refine
constitutional criminal procedure).
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POOR PEOPLE LOSE
Gideon decision and the Supreme Court's soaring rhetoric.73
Nancy Leong notes that Gideon has been "widely and accurately hailed as a
milestone in protecting the rights of individual defendants." 4 This assertion is
correct, as far as it goes. Gideon did protect the "rights" of defendants; it turns
out, however, that protecting defendants' rights is quite different from
protecting defendants. Fifty years after Gideon, poor people have both the right
to counsel and the most massive level of incarceration in the world." As stated
earlier in this Essay, since Gideon, rates of incarceration (which, in the United
States, applies mainly to the poor) and racial disparities have multiplied. The
right to have a lawyer, at trial or even during the plea bargaining stage, has
little impact on either of those central problems.
What poor people, and black people, need from criminal justice is to be
stopped less, arrested less, prosecuted less, incarcerated less. Considering other
needs that poor people have-food and shelter-Mark Tushnet has stated,
"[D]emanding that those needs be satisfied-whether or not satisfying them
can today persuasively be characterized as enforcing a right-strikes me as
more likely to succeed than claiming that existing rights to food and shelter
must be enforced."'
On its face, the grant that Gideon provides poor people seems more than
symbolic: it requires states to pay for poor people to have lawyers. But the
implementation of Gideon suggests that the difference between symbolic and
material rights might be more apparent than real. Indigent defense has been
grossly underfunded, where it is provided at all. Moreover, even if the defender
community were victorious in getting what it wanted out of Gideon -and the
experience of the last fifty years suggests that it will not be - American criminal
justice would still overpunish black and poor people. That is the unfairness
that the liberal investment in Gideon was supposed to contravene. A lawyer is
supposed to be a means to an end, not an end in herself. One problem with
Gideon is that it makes the lawyer the end. Robert Gordon noted that "[f] ormal
rights without practical enforceable content are easily substituted for real
at 2.
73.
NAT'L RIGHT TO COUNSEL COMM., supra note 49,
74.
Nancy Leong, Gideon's Law-ProtectiveFunction, 122 YALE L.J.
75.
See Gopnik, supra note
incarceration rate).
246o,
2462.
18 (stating that "[njo other country even approaches" the U.S.
76. See supra notes 9-io and accompanying text.
77. Tushnet, supra note so, at 1394.
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benefits."" In this sense Gideon and poor criminal defendants are friends
without benefits.
B. The Indeterminacy ofRights
On every anniversary of Gideon, liberals bemoan the state of indigent
defense. At its core, their claim is that Gideon has not been sufficiently
enforced. Indeed, many people would agree that the right to counsel has been
violated in cases where
defense counsel slept during portions of the trial, where counsel used
heroin and cocaine throughout the trial, where counsel allowed his
client to wear the same sweatshirt and shoes in court that the
perpetrator was alleged to have worn on the day of the crime, where
counsel stated prior to trial that he was not prepared on the law or the
facts of the case, and where counsel appointed in a capital case could
not name a single Supreme Court decision on the death penalty."
As a practical matter, however, the right to counsel means whatever five or
more members of the Supreme Court say it does (or what the social
understanding of the right isso). In those cases, the Court found that the Sixth
Amendment was not abridged.
I was part of a team of lawyers that litigated a right-to-counsel case in
Georgia. We alleged that, in capital cases, one county appointed counsel on the
basis of a low-bidding system. The attorney who agreed to take the case for the
least amount of money was the attorney that was appointed, without regard to
her competency to represent a defendant in a death penalty case. The trial
judge rejected our Sixth Amendment claim. I think we were right, and the trial
judge was wrong. I understand, however, that there is no way of applying the
Sixth Amendment's words "in every prosecution, the accused shall enjoy the
78. Gordon, supra note 57, at 657.
79. CoLE, supra note 42, at 78-79 (footnotes omitted).
so. Though rights are analytically indeterminate, they may be culturally determined. For
example, a "colored only" sign on a public schoolhouse door could be said to be
unconstitutional, based on a cultural consensus about the Fourteenth Amendment, even if
that understanding doesn't necessarily follow from the text of the Amendment, and even if
the Supreme Court were to declare legally segregated public schools to be constitutional.
Si.
CoLE, supra note 42, at 78-79.
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right ... to have the Assistance of Counsel for his defence"2 to those facts and
obtaining an answer that is objectively right or wrong.
On one level the Gideon right is not abstract at all. It has a clear formal
content: a person cannot be sentenced to prison unless she is represented by
someone who is a member of the bar (or she waives this right). The problem is
that the right can be respected without accomplishing anything, as in the
above-described cases. In order to make the formal right meaningful, it must
be supplemented by some sort of standard-like provisions. But doing so
introduces a high level of abstraction that does not decide actual cases.
For example, a New York Times article about the Frye and Lafler decisions
that extended Gideon to the plea bargaining stage of the criminal process noted
that "legal scholars . . . used words like 'huge' and 'bold' to describe" the
decisions and quoted one legal scholar as saying, "I can't think of another
decision that's had any bigger impact than these two are going to have over the
next few years."" But the article goes on to state that "legal experts seem to
agree ... that it was difficult to gauge what concrete effect the rulings would
have on everyday legal practice.",8 The Times quotes another legal scholar as
predicting that the cases would lead to a "flurry" of court filings, "but [that] very
few of them will succeed.... Courts are very good at tossing these cases out."8 s
Under one formulation, the critique of rights means that "rights cannot
provide answers to real cases because they are cast at high levels of abstraction
without clear application to particular problems."86 In this light, the first
recommendation of the National Right to Counsel Committee - that "[s] tates
should adhere to their obligation to guarantee fair criminal and juvenile
proceedings in compliance with constitutional requirements" -seems naive.
Most states would say they are already in compliance with the Constitution.
Yet commissions and panels in Georgia, Virginia, Louisiana, and Pennsylvania
have opined that these states are not in compliance with Gideon.88 Even the
82. U.S. CONsT. amend. VI.
Erica Goode, Stronger Hand for Judges in the 'Bazaar' of Plea Deals, N.Y. TIMES, Mar.
22, 2012, http://www.nytimes.conV2o12/o3/23/us/stronger-hand-for-judges-after-rulings-on
-plea-deals.html (quoting Professor Ronald F. Wright).
84. Id.
8s. Id. (quoting Professor Stephanos Bibas).
86. CriticalPerspectiveson Rights, supra note 56.
83.
87. NAT'L RIGHT TO COUNSEL CoMM., supra note 49, at 183.
88. Backus & Marcus, supra note 20, at 1035-36.
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U.S. Department of Justice has acknowledged that "indigent defense in the
United States today is in a chronic state of crisis."8 ' All of this sets up an
extended, and furious, battle about what Gideon requires. The indigent defense
community and the Supreme Court will agree sometimes, as in Frye and Lafler,
and disagree other times, as in Pennsylvania v. Finley,"o where the Court held
that a defendant has no right to counsel in habeas corpus proceedings, and
Gagnon v. Scarpelli," where the Court held that a defendant has no absolute
right to counsel at parole or probation revocation proceedings. Ultimately there
are no "right" or "wrong" answers - an answer is "right" if it persuades a court.
The vagaries of the Supreme Court's interpretation of the quality of lawyering
that poor people are entitled to seem a risky foundation on which to position a
social justice movement.
C. Rights Discourse and Mystification
American criminal justice is brutal, which is why the United States has the
highest rate of incarceration in the world. This is what "law" does. The law
allows the police to forcibly stop someone for running away from them in a
high-crime neighborhood, even if the police have no other reason to suspect
them of a crime.92 The law allows life imprisonment for a first-time drug
offense.93 The law allows prosecutors to threaten someone with a life sentence
for a minor crime unless he pleads guilty. 94
Yet we celebrate Gideon as the "law." That makes the law seem much more
benign than it really is. Gideon's announcement of a right to counsel appeared to
give the poor an agency in criminal justice that they actually do not have. And its
brutality would remain visited mainly on the poor. As Richard Delgado observed
in 1985, when the prison population was less than half the size it is now:
[O]f more than one million offenders entangled in the correctional
system, the vast majority are members of the poorest class. Unless we
89.
OFFICE OF JUSTICE PROGRAMS & BUREAU OF JUSTICE ASSISTANCE, IMPROVING CRIMINAL
JUSTICE SYSTEMS THROUGH EXPANDED STRATEGIES AND INNOVATIVE COLLABORATIONS, at ix
(1999).
90. 481 U.S. 551 (1987).
91.
411 U.S. 778 (1973).
ga. Illinois v. Wardlow, 528 U.S. 119 (2000).
93.
Harmelin v. Michigan, So U.S. 957 (1991).
94. Bordenkircher v. Hayes, 434 U.S. 357 (1978).
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are prepared to argue that offenders are poor because they are criminal,
we should be open to the possibility that many turn to crime because of
their poverty-that poverty is, for many, a determinant of criminal
behavior.9s
Imagine that many people charged with crimes are legally guilty, i.e., even
if these defendants have excellent defense counsel, the prosecution still can
prove beyond a reasonable doubt that they did what they are charged with
doing. Gideon encourages us to think of this state of affairs as "fair." Consistent
with Peter Gabel's and Jay Feinman's description of contract law, Gideon
"mask[s] the extent to which the social order makes it difficult to achieve true
autonomy and solidarity" and "denies the oppressive nature of the existing
hierarchies."9 6 The progressive investment in Gideon and the movement
building around the case makes it seem as though the "poverty and crime"
conversation is about the right to a lawyer in a criminal case, and not about the
kind of conduct that gets defined as crime, the racialized exercise of police
discretion, or why punishment is the state's central intervention for AfricanAmerican men.
D. Isolated Individualism
Gideon is a narrative about individual rights rather than a plea for classbased or race-based relief. This is consistent with Wendy Brown's observation
that "rights discourse . . . . converts social problems into matters of
individualized, dehistoricized injury and entitlement.""7 The Gideon narrative
even comes with a creation myth -Gideon's Trumpet, the book and movie' that focuses on the plucky Clarence Earl Gideon, who wrote his petition for
cert on prison stationery, and once the Supreme Court awarded him his free
lawyer, won his case with the jury deliberating for less than an hour!
Mark Tushnet describes the "broad version" of the critique of rights as
requiring the "undermining [of] the individualism that vindicating legal rights
95.
Delgado, supra note 33, at io (footnote omitted).
96. Peter Gabel & Jay Feinman, ContractLaw as Ideology, in THE POLITICS OF LAW, supra note 57,
at 497, 498.
97.
9s.
(1995).
(Hallmark Hall of Fame
WENDY BROWN, STATES OF INJURY: POWER AND FREEDOM IN LATE MODERNITY 124
ANTHONY LEWIS, GIDEON'S TRUMPET (1964); GIDEON'S TRUMPET
Productions 1980).
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reinforces."9 9 Gideon instructs us that we should respond to the problem that
eighty percent of people charged with crimes in the U.S. are poor by trying to
get a lawyer for a poor person charged with a crime.' This will not solve the
problem. Then, of all the actors in the criminal justice system against whom
defendants might have a gripe, Gideon tells us it should be against the lawyers
who represent them.' Gideon diffuses solidarity among the 2.3 million people
in the United States who are incarcerated. It changes the subject from mass
incarceration and racial subordination to private entitlement.
E. Rights Discourse as an Impediment to ProgressiveSocial Movements
Gideon diverts attention from economic and racial critiques of the criminal
justice system. For example, this Essay appears in a Symposium issue of The
Yale Law Journal that observes the fiftieth anniversary of Gideon. The Yale Law
journal has not devoted an entire issue to mass incarceration or racial
disparities in criminal justice. To the extent that some essays in the symposium
make racial critiques of American criminal justice, their authors, like me, must
situate those critiques within a discussion of Gideon and explain why the
critiques are still salient in light of Gideon.o2 I do not think those tasks are
difficult, as this Essay hopefully demonstrates, but they do take time and
attention from the main problems - mass incarceration and racial disparities.
To the extent that scholarship makes any difference, the poor would be better
served by my learned coauthors and our able student editors focused explicitly
on ending those problems, as opposed to devoting hundreds of pages and work
hours analyzing why Gideon has not worked, or how it might work better. It's
rather like a conference of esteemed scientists convening to discuss why holy
water does not cure cancer. Something interesting might come out of it, but
99.
Tushnet, supra note 2, at 27.
See supra note 20.
1oo.
101.
U.S. District Judge Jed Rakoff makes a related point about the Supreme Court's decisions in
Frye and Lafler. He notes that "most of the unfairness that occurs during the plea-bargaining
process is, in my experience, not the result of defense counsel's ineffectiveness. Instead,
it is the result of overconfidence on the part of the prosecutors . . . ." Jed. S. Rakoff,
Frye and Lafler: Bearers of Mixed Messages, 122 YALE L.J. ONLINE 25, 26
(2012),
http://yalelawjournal.org/2o12/o6/18/rakoff.html.
1o2. See, e.g., Gabriel J. Chin, Race and the Disappointing Right to Counsel, 122 YALE L.J. 2236
(2013); David Patton, FederalPublicDefense in An Age ofInquisition, 122 YALE L.J. 2578 (2013).
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the public interest might be more efficiently served by focusing on an actual
cure.
In addition to its diversion function, Gideon also provides a legitimation of
the status quo. As discussed in Part I, the poor-especially the poor and
black-are incarcerated at exponentially greater levels now than when Gideon
was decided. If more poor people are represented by lawyers because of Gideon,
arguably their trials or plea bargains are fairer than before Gideon, when they
did not have lawyers. Thus, the poor have simultaneously received a fairer
process and more punishment. Gideon makes it more work-and thus more
difficult-to make economic and racial critiques of criminal justice. This is not
to say people cannot and do not make those claims, but rather that Gideon
makes their arguments less persuasive. It creates a formal equality between the
rich and the poor because now they both have lawyers. The vast
overrepresentation of the poor in America's prisons appears more like a
narrative about personal responsibility than an indictment of criminal justice.
In the words of one commentator, "Procedural fairness not only produces faith
in the outcome of individual trials; it reinforces faith in the legal system as a
whole.""o3
If prosecutors had brought most of their cases against the poor during the
pre-Gideon era when most indigent defendants did not have lawyers,
prosecutors would have looked like bullies. Since Gideon, the percentage of
prosecutions against the poor has increased from 43% to 8o%.104 American
prosecutors have so much discretion, and there are so many criminal laws, that
they can bring a case against virtually whomever they choose.o' Prosecutors
103.
Michael O'Donnell, Crime and Punishment: On William Stuntz, NATION, Jan.
http://www.thenation.com/article/165569/crime-and-punishment-william-stuntz.
10, 2012,
104. See Stuntz, supra note 17, at 7 n.7.
1os. See Morrison v. Olson, 487 U.S. 654, 728 (1988) (Scalia, J., dissenting) ("With the law
books filled with a great assortment of crimes, a prosecutor stands a fair chance of finding at
least a technical violation of some act on the part of almost anyone. In such a case, it is not a
question of discovering the commission of a crime and then looking for the man who has
committed it, it is a question of picking the man and then searching the law books, or
putting investigators to work, to pin some offense on him. It is in this realm - in which the
prosecutor picks some person whom he dislikes or desires to embarrass, or selects some
group of unpopular persons and then looks for an offense, that the greatest danger of abuse
of prosecuting power lies. It is here that law enforcement becomes personal, and the real
crime becomes that of being unpopular with the predominant or governing group . . . ."
(quoting Attorney General [and future Supreme Court Justicel Robert H. Jackson, The
Federal Prosecutor, Address at the Second Annual Conference of United States Attorneys
(Apr. 1, 1940), in 31
J. CRIM. L. & CRIMINOLOGY 3,
5 (1940))).
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have mostly chosen the poor, but now, because of Gideon, they look like less
like bullies.
The critique of rights posits that "rights discourse contributes to passivity,
alienation, and a sense of inevitability about the way things are.
Gideon
encourages the view that fairness for poor people is an issue of criminal
procedure, not criminal law.1 o 7 When it establishes a procedural right, and the
poor and racial minorities still complain, mass incarceration and racial
disparities start to seem inevitable. When the problem is lack of a right, one
keeps going to court until a court declares the right. When the problem is
material deprivation suffered on the basis of race and class, where, exactly, does
one go for the fix? The Conclusion of this Essay recommends some places.
In applying the critique of rights to Gideon, I do not want to discount the
important concerns raised by some critical race theorists. The critical race
response to the critique of rights exhibits a discordant duality about rights that
in some ways accords with this Essay's analysis of Gideon. As described in Part
II, critical race theorists posit that rights are unstable and incoherent but still
might be good for people of color. This Essay suggests that Gideon is
profoundly limited and limiting, and yet a force for certain sources of good (for
example, Gideon authorizes the office of the public defender in Philadelphia
that, compared to appointed counsel, gets shorter sentences for its clientsos).
Even more significantly, Gideon may save the lives of defendants in capital
cases, who, occasionally, get better lawyers than they would in a world without
Gideon.
IV. OTHER COMMENTS
ON RIGHTS DISCOURSE IN CRIMINAL
PROCEDURE
Other scholars have also noted the limits of criminal procedural rights to
establish racial or social justice. I note three influential analyses of criminal
procedure that accord in some ways with this Essay's application of the critique
of rights to Gideon (and in other ways diverge). Professors Louis Michael
Seidman, Michael Klarman, and William Stuntz have each observed the failure
ro6. CriticalPerspectives on Rights, supra note 56.
107. Stuntz, supra note 17, at 72 ("Why has constitutional law focused so heavily on criminal
procedure, and why has it so strenuously avoided anything to do with substantive criminal
law ...
?").
io8. See Anderson & Heaton, supra note 43.
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of criminal rights discourse, in specific contexts, to improve fairness in criminal
justice.
In Brown and Miranda,"o, Professor Seidman examined the meaning of two
of the most famous Supreme Court decisions: Brown v. Board of Educationno
and Miranda v. Arizona.'" Seidman argues that, contrary to conventional
understanding, "the decisions did not mandate a vast restructuring of power
relationships. Rather, the decisions have served to justify and legitimate
arrangements that would otherwise be severely threatened by constitutional
rhetoric."" 2 He believes that both decisions "served to stabilize and legitimate
the status quo by creating the illusion of closure and cohesion.""'
For Miranda, specifically, Seidman posits that there is "a good deal of
evidence that Miranda, like Brown, traded the promise of substantial reform
implicit in prior doctrine for a political symbol."" 4 He acknowledges "some
truth""s to the claim that the decision, which requires that the police advise
suspects in custody of their privilege against self-incrimination, empowers
individuals who are subject to police questioning. But Seidman notes that the
Court had, in a series of cases decided prior to Miranda, already held that the
people subject to interrogation while in custody had the right to counsel." 6
Miranda's real purpose was to articulate a mechanism for waiver of the right."'
Citing data that suggests that Miranda did not decrease the number of
defendants who confess, Seidman questions whether, for criminal suspects,
"Mirandais serving any useful purpose.""
While Seidman does not explicitly invoke the critique of rights, his analysis
is consistent with its view that rights discourse does not necessarily lead to
social change, and that it may impede social justice. In Miranda,he states, "the
Court tamed the contradictions that would otherwise continually threaten the
iag. Louis Michael Seidman, Brown and Miranda, 8o CALIF. L. REv. 673
110.
i.
(1992).
347 U.S. 483 (1954).
384 U.S. 436 (1966).
112.
Seidman, supra note 109, at 68o.
113.
Id. at 719.
114.
Id. at 746.
115.
Id. at 743.
Id. at 744 ("Escobedo, Massiah, and Culombe had already created all the rights any defendant
needed.").
116.
117. Id.
118. Id. at 744 & n.236.
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legitimacy of punishment in a liberal democracy.""' He adds that
Brown and Miranda created a world where we need no longer be
concerned about inequality because the races are now definitionally
equal and a world where we need no longer be concerned about official
coercion because defendants have definitionally consented to their
treatment.... Brown and Miranda let us blame the victim in a way we
never could under the old regime."o
The two decisions diffuse the dissent that might be expected by the existence of
a permanent racially defined underclass because they provide an "amusementpark version of social change." 2.
In The Racial Origins of Modern Criminal Procedure,'2 Professor Michael
Klarman links the development of constitutional criminal procedure to an
effort by the Supreme Court to advance racial justice in the South in the era
before World War II. He examines four landmark cases in which the Supreme
Court held that convictions obtained in mob-dominated trials violated the
Fourteenth Amendment right to due process of law, established a right to
counsel in capital cases, invalidated a conviction because blacks had been
intentionally excluded from the jury, and declared that the right to due process
made confessions based on torture inadmissible."'
According to Klarman, "none of these rulings had a very significant direct
impact on Jim Crow justice. For example, few blacks sat on southern juries as a
result of Norris v. Alabama, and black defendants continued to be tortured into
confessing, notwithstanding Brown v. Mississippi."' 4 Klarman diverges from
the critique of rights, however, in his hopeful analysis of the indirect effects of
the cases. He advances the possibility that these cases were "more important
for their intangible effects: convincing blacks that the racial status quo was not
impervious to change; educating them about their rights providing a rallying
iig. Id. at 747.
12o.
Id. at 752.
121. Id. at 753.
122. Klarman, supra note 72.
123.
Id. at 50. The cases are Moore v. Dempsey, 261 U.S. 86 (1923), which forbade mob trials;
Powell v. Alabama, 287 U.S. 45 (1932), which required the provision of counsel in capital
cases; Norris v. Alabama, 294 U.S. 587 (1935), which reversed the verdict of an intentionally
racially exclusive jury; and Brown v. Mississippi, 297 U.S. 278 (1936), which made
confessions obtained by torture inadmissible.
124.
Klarman, supra note 72, at 49.
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point around which to organize a protest movement; and perhaps even
instructing oblivious whites as to the egregious nature of Jim Crow
conditions."'
Finally, Professor William Stuntz noticed certain "perverse""' effects of
criminal procedure: as rights have expanded, things have gotten worse for
accused persons. Specifically, "underfunding, overcriminalization, and
oversentencing have increased as criminal procedure has expanded."" The
problem is that actors in the criminal justice system can respond to judicial
declarations of rights "in ways other than obeying them.""' States reacted to
Warren Court criminal procedure holdings by making the substantive criminal
law more punitive, to compensate for the rights provided to accused persons.
The result was that criminal cases were focused on procedure. Stuntz believes
that this caused American criminal justice to "unravel."' 9 Rather than focus on
procedural rights, the Warren Court should have used "the federal Bill of
Rights ... to advance some coherent vision of fair and equal criminal
justice."O Stuntz's critique is not so much a critique of rights as a critique of
the Court's reliance on procedural rights specifically. 13
One lesson we might garner from these three commentators is that
procedural rights may be especially prone to legitimate the status quo, because
"fair" process masks unjust substantive outcomes and makes those outcomes
seem more legitimate. In contrast, a right to a minimum wage, while it may
legitimate unequal distribution of wealth, substantively improves the condition
of the least well-off in material ways.
CONCLUSION: CRITICAL TACTICS
According to David Cole, "the most troubling lesson of the more than
125. Id. at 88.
126. Stuntz, supra note 17, at 3.
128.
Id.
Id.
129.
STUNTZ, supra note 31, at 1.
127.
130. Id. at 227-28.
131. But see Robert Weisberg, Crime and Law: An American Tragedy, 125 HARV. L. REV. 1425, 144243 (2012) (reviewing STUNTZ, supra note 31) (noting that "the Critical Legal Studies
movement . .. could have embraced Stuntz's rights critique as a diagnosis of a brilliant false
consciousness-raising mechanism of legitimation in the service of hierarchy").
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thirty-five years since Gideon v. Wainwright is that neither the Supreme Court
nor the public appears to have any interest in making the constitutional right
announced in Gideon a reality."' This should not have come as a surprise. The
real surprise is the continued investment in rights discourse.
Duncan Kennedy observes that "critique is always motivated." 33 My
motivation in applying the critique of rights to Gideon is to cause people who
want to reform, or transform, American criminal justice to recalibrate their
methods.
First, I want to be especially clear on one point. People should still become
criminal defense attorneys. The most important good that defense attorneys do
is helping individual clients. Reducing potential sentences by six months, as
one study suggests that effective defense counsel can, makes an enormous
difference in the lives of incarcerated people and their families.'" Effective
defense attorneys can also increase the cost of prosecution, and, in theory, this
has the potential to reduce mass incarceration on a macro level. Excellent
defense attorneys might disrupt one or more steps of the five-step process
described in Part II by which the criminal law establishes control over poor
people. For example, disproportionate stops and arrests of poor African
Americans might be inhibited by aggressive litigation.
Thus, defense attorneys should continue to fight for the resources that they
need to effectively represent their clients.' But everyone should understand,
first, that those resources are not likely to result from raising Gideon-based
claims in court, and second, that Gideon has not, and will not, change the fact
that in American criminal justice, poor people are losers.
The idea of abandoning rights discourse is not as radical as it sounds;
rather, it is consistent with the disillusionment, especially on the Left, about
the value of going to courts to resolve claims of racial or economic injustice.
Professors Cummings and Eagly have described "a new orthodoxy that is
deeply skeptical of the usefulness of legal strategies to promote social
change.",, 6
132.
COLE, supra note 42, at 64.
133.
Kennedy, supra note 50, at 218.
See Abrams & Yoon, supra note 44, at 166-67.
Abbe Smith, Defense Lawyering in a Time ofMass Incarceration,70 WASH. & LEE L. REv. 1363
134.
135.
(2013).
136.
Scott L. Cummings & Ingrid V. Eagly, After Public Interest Law, 1oo Nw. U. L. REV. 1251,
1255 (20o6) (reviewing JENNIFER GORDON, SUBURBAN SWEATSHOPS: THE FIGHT FOR
IMMIGRANT RIGHTS (2005)).
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POOR PEOPLE LOSE
So what should people do? I am less certain about what methods will
transform criminal justice than I am certain that Gideon discourse will not. I do
not view that uncertainty as a flaw in my thesis."' If people believe that holy
water cures cancer, it is a contribution to demonstrate that it does not, even if
one does not himself have an actual cure to offer. Thus, rather than profess
absolute remedies to mass incarceration and racial disparities, I can offer a few
tentative suggestions on how criminal reformers can, in hip-hop parlance, "act
like they know" that rights discourse does not work.'
Mark Tushnet notes that proceeding with an awareness of the critique of
rights allows progressives "to improve the accuracy of the calculation of the
possible benefit of investing in legal action rather than in something elsestreet demonstrations, public opinion campaigns, or whatever."'1 9 In the
criminal justice context, the goal is to prevent poor people and African
Americans from being losers in criminal justice, or at least from losing as badly
as they do now. Advocates for the poor, for racial minorities, and for criminal
defendants should abandon rights discourse and rather focus on reducing the
number of poor people overall, and African Americans specifically, who are
incarcerated.
The two apparatuses that bear the most responsibility for the massive
increase in incarceration and racial disparities since Gideon are the "war on
drugs" and the "tough-on-crime" movement. Legalizing or decriminalizing
drugs would do some work toward reducing both incarceration overall, and the
racial disparities (or, for the latter, at least bring them closer to the two-to-one
disparity that existed before the war on drugs, as opposed to the seven-to-one
disparity that now exists). 4 '
The 2.3 million people who are locked up in the United States, and their
families and friends, have the potential to form a huge social movement against
mass incarceration. The critique of rights suggests that historians or political
137.
See Allegra M. McLeod, Confronting CriminalLaw's Violence: The Possibilities of Unfinished
Alternatives, 8 UNBOUND: HARV.
J. LEGAL LEFT (forthcoming 2013)
(calling for "an openness
to unfinished alternatives-a willingness to engage in partial, in process, incomplete
reformist efforts that seek to displace conventional criminal law administration as a primary
mechanism for social order maintenance").
138.
The Urban Dictionary defines "act like you know" as "recognize, stop playing, or stop
playing crazy." Act Like Yoit Know, URBAN DicnIONARY, http://www.urbandictionary
.con/define.php?term=Act%2olike%20you%2oknow (last visited Mar. 29,
139. Tushnet, supra note 2, at 25.
2013).
140. See supra notes 27-28 and accompanying text.
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scientists are better consultants than lawyers in fashioning the best methods for
achieving this goal. One animating question might be: What was responsible
for social justice advances, like emancipation, that resulted in material gains for
African Americans and the poor?
Michelle Alexander has proposed that as many criminal defendants as
possible go to trial in an effort to "crash the justice system." 14 ' The idea is to
create chaos in the criminal justice system to make ending mass incarceration a
priority for politicians and to force a public conversation about it. In other
work I have recommended jury nullification as a way of reducing the number
of people who are incarcerated for nonviolent, victimless crime.142
Some efforts are already underway. In New York, there have been public
demonstrations and civil disobedience to reduce excessive law enforcement in
minority communities, especially the police practice of "stop, question, and
frisk."'4 A group called Critical Resistance is one of the leaders of the prison
abolition project to reduce the reliance on incarceration.'1 All of Us or None is
an organization of formerly incarcerated people working to end discrimination
against people with conviction histories. 4 s These efforts provide limited
optimism that if criminal justice reformers focus on reducing incarceration
rather than increasing rights, the poor can lose less.
141. Michelle Alexander, Editorial, Go to Trial: Crash the Justice System, N.Y. TIMEs, Mar.
10, 2012, http://www.nytimes.com/2012/03/1i/opinion/sunday/go-to-trial-crash-the-justice
-system.html.
142.
See PAUL BUTLER, LET'S GET FREE: A HIP-HOP THEORY OF JUSTICE (2009); Paul Butler,
Racially Based Jury Nullification:Black Power in the CriminalJustice System, 105 YALE L.J. 677
(1995).
143. See Matthew Deluca & Jose Martinez, NYPD's Stop and Frisk Tactics Protested in Harlem;
Princeton Prof Cornel West Among Those Arrested, N.Y DAILY NEWS, Oct. 21, 2011,
http://www.nydailynews.comrVnew-york/nypd-stop-frisk-tactics-protested-harlem-princeton
-prof-cornel-west-arrested-article-i.965480.
144. CRITICAL RESISTANCE, http://criticalresistance.org (last visited Apr. 3, 2013).
http://www
.prisonerswithchildren.org/our-projects/allofus-or-none (last visited Apr. 3, 2013).
145. All of Us or None, LEGAL SERVICES FOR PRISONERS WITH CHILDREN,
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