Law Commons^™

Judges For Sale: The Effect Of Campaign Contributions On State Criminal Courts, Arturo Romero Yáñez, Neel U. Sukhatme

Georgetown Law Faculty Publications and Other Works

Do campaign contributions impact democratic processes? Using donation data from Texas, we show that criminal defense attorneys who contribute to a district judge’s electoral campaign are preferentially assigned by that judge to indigent defense cases, i.e., public contracts in which the state pays private attorneys to represent poor defendants.

We estimate that attorney donors receive twice as many cases as non-donors during the month of their campaign contribution. Nearly two-thirds of this increase is explained by the contribution itself, with the remainder attributable to shared preferences within attorney-judge pairs, such as those based on professional, ideological, political, or personal ties. …

Expanded Criminal Defense Lawyering, Jenny Roberts, Ronald Wright

Articles in Law Reviews & Other Academic Journals

This review collects and critiques the academic literature on criminal defense lawyering, with an emphasis on empirical work. Research on criminal defense attorneys in the United States has traditionally emphasized scarcity of resources: too many people facing criminal charges who are “too poor to pay” for counsel and not enough funding to pay for the constitutionally mandated lawyers. Scholars have focused on the capacity of different delivery systems, such as public defender offices, to change the ultimate outcomes in criminal cases within their tight budgetary constraints. Over the decades, however, theoretical understandings of the defense attorney’s work have expanded to …

The Right To Counsel In A Neoliberal Age, Zohra Ahmed

Faculty Scholarship

Legal scholarship tends to obscure how changes in criminal process relate to broader changes in the political and economic terrain. This Article offers a modest corrective to this tendency. By studying the U.S. Supreme Court’s right to counsel jurisprudence, as it has developed since the mid-70s, I show the pervasive impact of the concurrent rise of neoliberalism on relationships between defendants and their attorneys. Since 1975, the Court has emphasized two concerns in its rulings regarding the right to counsel: choice and autonomy. These, of course, are nominally good things for defendants to have. But by paying close attention to …

The Expansive Reach Of Pretrial Detention, Paul Heaton

All Faculty Scholarship

Today we know much more about the effects of pretrial detention than we did even five years ago. Multiple empirical studies have emerged that shed new light on the far-reaching impacts of bail decisions made at the earliest stages of the criminal adjudication process. The takeaway from this new generation of studies is that pretrial detention has substantial downstream effects on both the operation of the criminal justice system and on defendants themselves, causally increasing the likelihood of a conviction, the severity of the sentence, and, in some jurisdictions, defendants’ likelihood of future contact with the criminal justice system. Detention …

Prejudice-Based Rights In Criminal Procedure, Justin Murray

Articles & Chapters

This Article critically examines a cluster of rules that use the concept of prejudice to restrict the scope of criminal defendants’ procedural rights, forming what I call prejudice-based rights. I focus, in particular, on outcome-centric prejudice- based rights—rights that apply only when failing to apply them might cause prejudice by affecting the outcome of the case. Two of criminal defendants’ most important rights fit this description: the right, originating in Brady v. Maryland, to obtain favorable, “material” evidence within the government’s knowledge, and the right to effective assistance of counsel. Since prejudice (or equivalently, materiality) is an element of these …

Reviving Escobedo, Janet Moore

Faculty Articles and Other Publications

This Symposium Essay reflects on the fifty years that have passed since the Chicago Eight trial by highlighting a new development in criminal procedure that has drawn little scholarly attention: Judges are reviving the right of stationhouse access to defense counsel along lines previously envisaged in Escobedo v. Illinois. The Essay also offers fresh historical and theoretical perspective on the need for stationhouse counsel. First, the Essay draws on a series of events occurring during and after the Chicago Eight trial to illustrate the interrelationship of violence and silence in criminal legal systems, the distinctive coerciveness of custodial interrogation for …

Procedural Fairness In Antitrust Enforcement: The U.S. Perspective, Christopher S. Yoo, Hendrik M. Wendland

All Faculty Scholarship

Due process and fairness in enforcement procedures represent a critical aspect of the rule of law. Allowing greater participation by the parties and making enforcement procedures more transparent serve several functions, including better decisionmaking, greater respect for government, stronger economic growth, promotion of investment, limits corruption and politically motivated actions, regulation of bureaucratic ambition, and greater control of agency staff whose vision do not align with agency leadership or who are using an enforcement matter to advance their careers. That is why such distinguished actors as the International Competition Network (ICN), the Organization for Economic Cooperation and Development (OECD), the …

Incorporating Collateral Consequences Into Criminal Procedure, Paul T. Crane

Law Faculty Publications

A curious relationship currently exists between collateral consequences and criminal procedures. It is now widely accepted that collateral consequences are an integral component of the American criminal justice system. Such consequences shape the contours of many criminal cases, influencing what charges are brought by the government, the content of plea negotiations, the sentences imposed by trial judges, and the impact of criminal convictions on defendants. Yet, when it comes to the allocation of criminal procedures, collateral consequences continue to be treated as if they are external to the criminal justice process. Specifically, a conviction’s collateral consequences, no matter how severe, …

Privatizing Criminal Procedure, John D. King

Scholarly Articles

As the staggering costs of the criminal justice system continue to rise, states have begun to look for nontraditional ways to pay for criminal prosecutions and to shift these costs onto criminal defendants. Many states now impose a surcharge on defendants who exercise their constitutional rights to counsel, confrontation, and trial by jury. As these “user fees” proliferate, they have the potential to fundamentally change the nature of criminal prosecutions and the way we think of constitutional rights. The shift from government funding of criminal litigation to user funding constitutes a privatization of criminal procedure. This intrusion of market ideology …

The State Of The Death Penalty, Ankur Desai, Brandon L. Garrett

Faculty Scholarship

The death penalty is in decline in America and most death penalty states do not regularly impose death sentences. In 2016 and 2017, states reached modern lows in imposed death sentences, with just thirty-one defendants sentenced to death in 2016 and thirty-nine in 2017, as compared with over three hundred per year in the 1990s. In 2016, only thirteen states imposed death sentences, and in 2017, fourteen did so, although thirty-one states retain the death penalty. What explains this remarkable and quite unexpected trend? In this Article, we present new analysis of state-level legislative changes that might have been expected …

Isonomy, Austerity, And The Right To Choose Counsel, Janet Moore

Faculty Articles and Other Publications

People who can afford to hire criminal defense attorneys have a Sixth Amendment right to choose a lawyer who is qualified, available, and free from conflicts of interest. The same right to choose counsel is routinely denied to people who need government-paid defense lawyers because they cannot afford to hire attorneys. In prior work, I invoked democratic theory to argue that this de jure discrimination blocks constitutional law formation by poor people and should be eliminated. This Article extends the analysis by explaining how a different theoretical approach—one grounded in libertarian commitments to private enterprise and austerity in public funding—shaped …

Gideon Incarcerated: Access To Counsel In Pretrial Detention, Johanna Kalb

Articles

No abstract provided.

The Downstream Consequences Of Misdemeanor Pretrial Detention, Paul Heaton, Sandra G. Mayson, Megan Stevenson

Scholarly Works

In misdemeanor cases, pretrial detention poses a particular problem because it may induce innocent defendants to plead guilty in order to exit jail, potentially creating widespread error in case adjudication. While practitioners have long recognized this possibility, empirical evidence on the downstream impacts of pretrial detention on misdemeanor defendants and their cases remains limited. This Article uses detailed data on hundreds of thousands of misdemeanor cases resolved in Harris County, Texas—the thirdlargest county in the United States—to measure the effects of pretrial detention on case outcomes and future crime. We find that detained defendants are 25% more likely than similarly …

The Antidemocratic Sixth Amendment, Janet Moore

Faculty Articles and Other Publications

Criminal procedure experts often claim that poor people have no Sixth Amendment right to choose their criminal defense lawyers. These experts insist that the Supreme Court has reserved the Sixth Amendment right to choose for the small minority of defendants who can afford to hire counsel. This Article upends that conventional wisdom with new doctrinal, theoretical, and practical arguments supporting a Sixth Amendment right to choose for all defendants, including the overwhelming majority who are indigent. The Article’s fresh case analysis shows the Supreme Court’s “no-choice” statements are dicta, which the Court’s own reasoning and rulings refute. The Article’s new …

What Gideon Did, Sara Mayeux

All Faculty Scholarship

Many accounts of Gideon v. Wainwright’s legacy focus on what Gideon did not do—its doctrinal and practical limits. For constitutional theorists, Gideon imposed a preexisting national consensus upon a few “outlier” states, and therefore did not represent a dramatic doctrinal shift. For criminal procedure scholars, advocates, and journalists, Gideon has failed, in practice, to guarantee meaningful legal help for poor people charged with crimes.

Drawing on original historical research, this Article instead chronicles what Gideon did—the doctrinal and institutional changes it inspired between 1963 and the early 1970s. Gideon shifted the legal profession’s policy consensus on indigent defense away from …

Officiating Removal, Leah Litman

Articles

For the last several years, the Commonwealth of Pennsylvania has quietly attempted to curtail capital defendants' representation in state postconviction proceedings. In 2011, various justices on the Pennsylvania Supreme Court began to call for federally funded community defender organizations to stop representing capital defendants in state postconviction proceedings. The justices argued, among other things, that the organizations' representation of capital defendants constituted impermissible federal interference with state governmental processes and burdened state judicial resources. The court also alleged the community defender organizations were in violation of federal statutes, which only authorized the organizations to assist state prisoners in federal, but …

Mirandizing Terrorism Suspects? The Public Safety Exception, The Rescue Doctrine, And Implicit Analogies To Self-Defense, Defense Of Others, And Battered Woman Syndrome, Bruce Ching

Journal Articles

This article argues that in creating the public safety exception to the Miranda requirements, the Supreme Court implicitly analogized to the criminal law doctrines of self-defense and defense of others. Thus, examining the justifications of self-defense and defense of others can be useful in determining the contours of the public safety exception and the related "rescue doctrine" exception. In particular, the battered woman syndrome -- which is recognized in a majority of the states and has been successfully invoked by defendants in some self-defense cases -- could provide a conceptual analogue for arguments about whether law enforcement officers were faced …

Shrinking Gideon And Expanding Alternatives To Lawyers, Stephanos Bibas

All Faculty Scholarship

This essay, written as part of a symposium at Washington and Lee Law School entitled Gideon at 50: Reassessing the Right to Counsel, argues that the standard academic dream of expanding the right to counsel to all criminal and major civil cases has proven to be an unattainable mirage. We have been spreading resources too thin, in the process slighting the core cases such as capital and other serious felonies that are the most complex and need the most time and money. Moreover, our legal system is overengineered, making the law too complex and legal services too expensive for …

Beyond “Life And Liberty”: The Evolving Right To Counsel, John D. King

Scholarly Articles

The majority of Americans, if they have contact with the criminal justice system at all, will experience it through misdemeanor courtrooms. More than ever before, the criminal justice system is used to sort, justify, and reify a separate underclass. And as the system of misdemeanor adjudication continues to be flooded with new cases, the value that is exalted over all others is efficiency. The result is a system that can make it virtually painless to plead guilty (which has always been true for low-level offenses), but that is now overlaid with a new system of increasingly harsh collateral consequences. The …

Sections 9, 10 And 11 Of The Canadian Charter, Steve Coughlan, Robert Currie

Articles, Book Chapters, & Popular Press

Section 9 of the Charter guarantees freedom from arbitrary detention, section 10 provides certain rights on arrest, and section 11 guarantees various rights to those charged with an offence. In this chapter the authors consider the aspects of these rights which have been authoritatively determined, as well as pointing to the areas which remain unsettled and discussing the areas of lingering controversy.

Effective Remedies For Ineffective Assistance, Jenia I. Turner

Faculty Journal Articles and Book Chapters

In two recent cases, Missouri v. Frye and Lafler v. Cooper, the Supreme Court affirmed that criminal defendants have a right to competent counsel during plea bargaining. The Court also established that the injury caused by ineffective assistance is not mooted by the subsequent conviction of the defendant at trial. The cases were broadly celebrated for clarifying that the Sixth Amendment applies fully to plea bargaining — the standard process by which our justice system resolves criminal cases today.

The most significant and surprising part of Lafler, however, was the Court’s holding concerning remedies. The Court held that trial courts …

Justice Kennedy's Sixth Amendment Pragmatism, Stephanos Bibas

All Faculty Scholarship

This essay, written as part of a symposium on the evolution of Justice Kennedy’s jurisprudence, surveys three areas of criminal procedure under the Sixth Amendment: sentence enhancements, the admissibility of hearsay, and the regulation of defense counsel’s responsibilities. In each area, Justice Kennedy has been a notable voice of pragmatism, focusing not on bygone analogies to the eighteenth century but on a hard-headed appreciation of the twenty-first. He has shown sensitivity to modern criminal practice, prevailing professional norms, and practical constraints, as befits a Justice who came to the bench with many years of private-practice experience. His touchstone is not …

A Rejoinder To Professor Schauer's Commentary, Yale Kamisar

Articles

It is quite a treat to have Professor Frederick Schauer comment on my Miranda article.1 Professor Schauer is a renowned authority on freedom of speech and the author of many thoughtful, probing articles in other areas as well, especially jurisprudence. I am pleased that in large measure, Schauer, too, laments the erosion of Miranda in the last four-and-a-half decades2 and that he, too, was unhappy with the pre-Miranda due process/“totality of circumstances”/“voluntariness” test.3 I also like what Schauer had to say about “prophylactic rules,” a term that has sometimes been used to disparage the Miranda rules.4 As Schauer observes, the …

Separate But Equal: Miranda's Rights To Silence And Counsel, Steven P. Grossman

All Faculty Scholarship

Three decades ago, the Supreme Court created a dubious distinction between the rights accorded to suspects in custody who invoke their right to silence and who invoke their right to counsel. This distinction significantly disadvantages those who do not have the good sense or good fortune to specify they want an attorney when they invoke their right to remain silent. This article argues that this distinction was flawed at its genesis and that it has led to judicial decisions that are inconsistent, make little sense, and permit police behavior that substantially diminishes the right to silence as described in Miranda …

When The Cheering (For Gideon ) Stops: The Defense Bar And Representation At Initial Bail Hearings, Douglas L. Colbert

Faculty Scholarship

This article suggests that the absence of representation at the beginning of a State criminal prosecution must come to a screeching halt. The criminal defense bar should take a leadership role and dedicate Gideon's anniversary to making certain that an accused's right to the effective assistance of counsel begins at the initial bail hearing. Indeed, guaranteeing vigorous representation should be the defense bar's number one priority.

The Role Of Defense Counsel In Ensuring A Fair Justice System, Richard Klein

Scholarly Works

Supreme Court decisions are replete with statements about how crucial it is to have a defense attorney represent the person who is accused of crime. Defense counsel may accurately be considered law enforcers. While representing a lone individual against all the power of the state, counsel must “police the police” to determine if there has been an unconstitutional search, a coerced confession, an unlawfully suggestive lineup, or the fabrication of testimony. Defense counsel must attempt to ensure that the prosecutor is adhering to the professional requirement not merely to convict, but to do justice and comply with his obligations to …

Brief Of Amici Curiae On Behalf Of Appellants, Paul Dewolfe, Jr., Et Al. V. Quinton Richmond, Et Al., 2011 No. 34, A.J. Bellido De Luna, Michael Pinard

Court Briefs

In this case the appellants sought to overturn a decision by the Circuit Court for Baltimore City that held criminal defendants have a right to representation by an attorney at an initial bail hearing. Due to their concern about the quality of justice given to criminal defendants in the state’s criminal justice process, law professors at both the University of Baltimore and the University of Maryland filed an amicus brief with the Maryland Court of Appeals in support of the appellees.

The amici presented one issue: Did a Court of Appeals decision in 2001 holding that the Maryland Public Defender …

Prosecution Without Representation, Douglas L. Colbert

Faculty Scholarship

Nearly 50 years after the Supreme Court's landmark ruling in Gideon v. Wainwright established indigent defendants' constitutional right to counsel, poor people throughout the country still remain without a lawyer when first appearing before a judicial officer who determines pretrial liberty or bail. Absent counsel, low-income defendants unable to afford bail remain in jail for periods ranging from 3-70 days until assigned counsel appears in-court. Examining Walter Rothgery's wrongful prosecution, the article includes a national survey that informs readers about the limited right to counsel at the initial appearance and the extent of delay in each of the 50 states. …

Gideon'S Vuvuzela: Reconciling The Sixth Amendments Promises With The Doctrines Of Forfeiture And Implicit Waiver Of Counsel, Sarah Gerwig-Moore

Articles

Dating back to the early decades of the twentieth century, the United States Supreme Court has articulated clear, venerable standards for the waiver of constitutional rights--and in particular the right to counsel. This is a rich area for both litigation and teaching, if only to be able to repeat phrases such as "courts indulge every reasonable presumption against waiver" and "we do not presume acquiescence in the loss of fundamental rights." A defendant must proceed with "eyes open," and a waiver will not be presumed from a "silent record." Consistently affirmed and reaffirmed by the United States Supreme Court and …

Localism And Capital Punishment, Stephen F. Smith

Journal Articles

Professor Adam Gershowitz presents an interesting proposal to transfer from localities to states the power to enforce the death penalty. In his view, state-level enforcement would result in a more rationally applied death penalty because states would be much more likely to make capital charging decisions based on desert, without the distorting influence of the severe resource constraints applicable to all but the wealthiest of localities. As well conceived as Professor Gershowitz’s proposal is, however, I remain skeptical that statewide enforcement of the death penalty would be preferable to continued local enforcement. First, Professor Gershowitz underestimates the benefits of localism …