Constitutional Law
Why Firearm Federalism Beats Firearm Localism
Americans are increasingly polarized on gun rights and gun policy, leading some scholars to ask whether the Second Amendment provides a tool to manage disagreement and promote decentralization. Joseph Blocher’s Firearm Localism takes up this perspective and makes a case for deference to local and municipal gun control laws, including the revision or repeal of statewide firearms preemption statutes. In this Essay, Professor O’Shea argues that neither judicial tradition nor the priorities of contemporary urban gun owners support such deference. Moreover, unlike traditional federalism, Blocher’s localism would undermine the compromise value that was supposed to be decentralization’s strength: the prospect of piecemeal local regulation could threaten the practical exercise of gun rights even in generally pro-gun areas. In short, if one adopts a decentralizing approach to the Second Amendment, then its proper form is a conventional, state-based federalism backed by preemption.
Syria, Threats of Force, and Constitutional War Powers
In this Essay, Professor Matthew Waxman argues that debates about constitutional war powers neglect the critical role of threats of war or force in American foreign policy. The recent Syria case highlights the President’s vast legal power to threaten military force as well as the political constraints imposed by Congress on such threats. Incorporating threats into an understanding of constitutional powers over war and peace upends traditional arguments about presidential flexibility and congressional checks—arguments that have failed to keep pace with changes in American grand strategy.
Windsor’s Right to Marry
In this Essay, Professor Douglas NeJaime reads United States v. Windsor, which technically rested on equal protection grounds, through the lens of the fundamental right to marry. The Windsor Court absorbed decades of LGBT rights advocacy by situating same-sex couples within a contemporary model of marriage in which marriage’s private welfare function and public recognition dimensions are mutually reinforcing. NeJaime argues that this specific understanding of the right to marry will likely guide the Court’s equal protection, rather than substantive due process, analysis when it one day determines the constitutionality of state marriage prohibitions.
Lower Court Popular Constitutionalism
Scholars of popular constitutionalism have persuasively argued that an array of nonjudicial actors—social movements, the federal political branches, state and local political entities—play an important role in shaping constitutional meaning. To date, the accounts of such scholars have largely focused on the ways that constitutional doctrine at the Supreme Court level can be infiltrated and shaped by such popular constitutional influences. In this Essay, Professor Katie Eyer draws on the events following the Obama Administration’s February 2011 Defense of Marriage Act (DOMA) announcement—and the history of gay equality litigation that preceded it—to develop a theory of the lower federal courts as participants in the popular constitutionalism dialogue.
An Immigration Gideon for Lawful Permanent Residents
122 Yale L.J. 2394 (2013). In evaluating the legacy of Gideon v. Wainwright, it is critical to remember that the Supreme Court’s decision rested on the Sixth Amendment right to counsel for the accused in criminal cases. American law sharply demarcates between the many rights available to criminal defendants and the significantly more limited bundle of protections for civil litigants. This Essay studies the right to counsel in a particular category of civil cases—immigration removal cases, which implicate life and liberty interests similar in important respects to those at stake in criminal prosecutions. It contends that classic due process analysis, including the constitutional protections previously extended by the Supreme Court to lawful permanent residents, requires guaranteed counsel for lawful permanent residents, the group of noncitizens most likely to have the strongest legal entitlement to remain in and the deepest community ties to the United States. Temporary visitors and undocumented immigrants generally lack such a weighty legal interest and community ties. Modern developments in U.S. immigration law and enforcement, including the dramatic increase in removal proceedings instituted by the U.S. government over the last ten years, limits imposed by Congress on judicial review of agency removal decisions, and the racially disparate impacts of immigration enforcement, make guaranteed representation for lawful permanent residents more necessary now than ever.
Celebrating the “Null” Finding: Evidence-Based Strategies for Improving Access to Legal Services
122 Yale L.J. 2206 (2013). Recent empirical studies tested whether litigants with access to lawyers fared better than litigants with access only to advice or limited assistance. Two of the three studies produced null findings—the litigants with access to lawyers, the treatment group, fared no better than litigants without a lawyer. In this Essay, I propose that we celebrate these null findings. I do not doubt that expert lawyer assistance will be necessary in some, perhaps many, cases, but we should reduce procedural and other complexities wherever possible in order to facilitate self-help. We should measure improved access to legal services by the extent to which self-empowered consumers are able to resolve everyday legal problems on their own or with limited assistance. The flowering of “lawyer-lite” service innovations—services often preferred by consumers—suggests that the practical work of building consumer-centered and consumerdriven legal services delivery is not only possible, it is already underway.
Effective Plea Bargaining Counsel
122 Yale L.J. 2650 (2013). Fifty years ago, Clarence Earl Gideon needed an effective trial attorney. The Supreme Court agreed with Gideon that the Sixth Amendment guaranteed him the right to counsel at trial. Recently, Galin Frye and Anthony Cooper also needed effective representation. These two men, unlike Gideon, wanted to plead guilty and thus needed effective plea bargaining counsel. However, their attorneys failed to represent them effectively, and the Supreme Court—recognizing the reality that ninety-five percent of all convictions follow guilty pleas and not trials—ruled in favor of Frye and Cooper. If negotiation is a critical stage in a system that consists almost entirely of bargaining, is there a constitutional right to the effective assistance of plea bargaining counsel? If so, is it possible to define the contours of such a right? The concept of a right to an effective bargainer seems radical, yet obvious; fraught with difficulties, yet in urgent need of greater attention. In this Essay, I argue that the Court’s broad statements in Missouri v. Frye, Lafler v. Cooper, and its 2010 decision in Padilla v. Kentucky about the critical role defense counsel plays in plea negotiations strongly support a right to effective plea bargaining counsel. Any right to effective bargaining should be judged—as other ineffective assistance claims are judged—by counsel’s success or failure in following prevailing professional norms. This Essay discusses the numerous professional standards that support the notion that defense counsel should act effectively when the prosecution seeks to negotiate and should initiate negotiations when the prosecution fails to do so, if it serves the client’s goals. The objections to constitutional regulation of plea bargaining include the claims that negotiation is a nuanced art conducted behind closed doors that is difficult to capture in standards and that regulating bargaining will open floodgates to future litigation. While real, these are manageable challenges that do not outweigh the need to give meaning to the constitutional right to effective counsel. After all, in a criminal justice system that is largely composed of plea bargains, what is effective assistance of counsel if it does not encompass effectiveness within the plea negotiation process?
Effective Trial Counsel After Martinez v. Ryan: Focusing on the Adequacy of State Procedures
122 Yale L.J. 2604 (2013). Everyone knows that excessive caseloads, poor funding, and a lack of training plague indigent defense delivery systems throughout the states, such that the promise of Gideon v. Wainwright is largely unfulfilled. Commentators have disagreed about how best to breathe life into Gideon. Many disclaim any possibility that federal habeas corpus review of state criminal cases could catalyze reform given the many procedural obstacles that currently prevent state prisoners from getting into federal court. But the Supreme Court has recently taken a renewed interest in using federal habeas review to address the problem of ineffective attorneys in state criminal cases. Last year, in Martinez v. Ryan, the Supreme Court relied on equitable principles to sweep aside procedural barriers to federal habeas review and permit state prisoners to raise ineffective assistance of trial counsel claims in federal court. Not surprisingly, many lower courts have resisted the Supreme Court’s recent attempts to permit state prisoners to have their ineffective assistance of trial counsel claims heard on the merits. But this battle is far from over. After documenting the ways in which lower courts are restrictively interpreting the Supreme Court’s recent decisions expanding the grounds for cause to excuse a state prisoner’s procedural default of an ineffective assistance of trial counsel claim, I will suggest that the defendants still have an important equitable card to play. That card is the idea of adequacy. As lower courts attempt to re-characterize state procedures so as to avoid recent Supreme Court holdings that would open the federal doors to state prisoners’ ineffective assistance of trial counsel claims, they inadvertently set themselves up for challenges to the adequacy of their state procedures. This shift is significant, I will explain, because of important differences in how cause and adequacy arguments influence state behavior. Whereas cause grounds are typically personal to the defendant, adequacy challenges are often used to expose systemic failures in a state’s procedures. As a result, adequacy challenges have more potential to catalyze change in states’ procedures.
Enforcing Effective Assistance After Martinez
122 Yale L.J. 2428 (2013). This Essay argues that the Court’s effort to expand habeas review of ineffective assistance of counsel claims in Martinez v. Ryan will make little difference in either the enforcement of the right to the effective assistance of counsel or the provision of competent representation in state criminal cases. Drawing upon statistics about habeas litigation and emerging case law, the Essay first explains why Martinez is not likely to lead to more federal habeas grants of relief. It then presents new empirical information about state postconviction review (cases filed, counsel, hearings, and relief rates), post-Martinez decisions, and anecdotal reports from the states to explain why, even if federal habeas grants increase, state courts and legislatures are unlikely to respond by invigorating state collateral review. The Essay concludes that alternative means, other than case-by-case postconviction review, will be needed to ensure the provision of effective assistance.
Fear of Adversariness: Using Gideon To Restrict Defendants’ Invocation of Adversary Procedures
122 Yale L.J. 2550 (2013). Fifty years ago Gideon promised that an attorney would vindicate the constitutional rights of any accused too poor to afford an attorney. But Gideon also promised more. Writ small, Gideon promised to protect individual defendants; writ large, Gideon promised to protect our system of constitutional criminal procedure. Much has been written about Gideon’s broken promise to our poor; this Essay is about Gideon’s broken promise to our system. With its army of zealous public defenders, Gideon should have produced litigation that vigorously protected the core structures of our adversary trial system. Instead, courts have converted Gideon representation into a Gideon defendant’s de facto relinquishment of important Sixth Amendment rights. As a result, counsel – not client - controls the invocation and exercise of the adversary procedures. And, even as to those Sixth Amendment rights still within a defendant’s exclusive control, Strickland eviscerates a defendant’s capacity to seek redress when counsel precludes the exercise of a fundamental right. As a result, Gideon has increasingly become an enforcer of the status quo – a cog in the systemic machine that grinds continually toward under-enforcement of Sixth Amendment adversary rights.
Federal Public Defense in an Age of Inquisition
122 Yale L.J. 2578 (2013). This Essay asks whether federal criminal defendants receive fairer process today than they did in 1963, when Gideon v. Wainwright was decided. It concludes that in many situations they do not; indeed, they often receive far worse. Although Gideon and the Criminal Justice Act of 1964 undoubtedly improved the quality and availability of counsel in the federal courts, extraordinary damage has been done since then to the aspect of the criminal justice system that makes lawyers so valuable: the adversary process. Sentencing severity, the control of that severity by prosecutors rather than judges or juries, and high rates of pretrial detention have greatly limited defendants’ ability to challenge the government’s version of the facts and the law. This Essay briefly describes federal criminal practice as it existed in 1963 and illustrates the shifts that have occurred by discussing current practice in the federal public defender office in New York City.
Gideon at Fifty: A Problem of Political Will
122 Yale L.J. 2694 (2013). Although it is fitting to celebrate Gideon’s promise of representation for indigent criminal defendants at this landmark anniversary, it is important also to note that part of Gideon’s legacy should be our recognition of the limits of law in the fulfillment of that promise. Law’s most powerful role in the struggle to ensure adequate representation for the poor in criminal cases will be in its capacity to generate and direct the political will to produce institutional change. The critical question to ask is how law can help to move the political actors who control the power of the purse, the organization and administration of indigent defense services, and the shape of the substantive criminal law to allocate the resources and make the institutional changes that are necessary to fix what in many jurisdictions is a failing system of indigent defense. Although there is no silver bullet, there are a variety of complementary strategies that can and should be pursued. These strategies include working for legislative change to limit the scope of the substantive criminal law, promoting the success of structural reform litigation in both federal and state courts, enlisting the support of state bar overseers and associations as well as the ABA, enlisting the private defense bar and NGOs that specialize in criminal defense to set higher norms of practice, urging greater federal government involvement in promoting indigent defense reform in the states, promoting social entrepreneurship to generate creative solutions to the indigent defense crisis, and harnessing both the great power of the media to educate and motivate the public and the more targeted power of the legal academy to educate and motivate the next generation of lawyers to address this pressing problem.
Gideon at Guantánamo
122 Yale L.J. 2416 (2013). The right to counsel maintains an uneasy relationship with the demands of trials for war crimes. Drawing on the author’s personal experiences from defending a Guantánamo detainee, the Author explains how Gideon set a baseline for the right to counsel at Guantánamo. Whether constitutionally required or not, Gideon ultimately framed the way defense lawyers represented their clients. Against the expectations of political and military leaders, both civilian and military lawyers vigorously challenged the legality of the military trial system. At the same time, tensions arose because lawyers devoted to a particular cause (such as attacking the Guantánamo trial system) were asked at times to help legitimize the system, particularly when it came to decisions about whether to enter a plea to help legitimize the rickety trial system in operation at Guantánamo.
Gideon at Guantánamo: Democratic and Despotic Detention
122 Yale L.J. 2504 (2013). One measure of Gideon v. Wainwright is that it made the U.S. government’s efforts to isolate 9/11 detainees from all outsiders at Guantánamo Bay conceptually and legally unsustainable. Gideon, along with Miranda v. Arizona, is part of a democratic narrative shaped over decades to insist that, unlike totalitarian regimes, the United States has constitutional obligations to equip individuals with third parties—lawyers—to inhibit (if not to prevent) coercion. Both Gideon and Miranda recognize the relationship between the dignity of individuals in their encounter with the state and the legitimacy of state processes. Both decisions locate enforcement authority in courts. Both rely on lawyers, deployed as witnesses to interrogation and as advocates, and both impose obligations that, when necessary, governments subsidize lawyers. Conflicts in the post-9/11 era over the boundaries of Gideon and Miranda illuminate what is at stake: whether aspirations remain that detention and interrogation of individuals—even the reviled—could possibly merit the adjective “democratic” to reflect constitutional commitments that all persons are rights-bearers who cannot be left alone and subject to state power closed off from public oversight.
Gideon Exceptionalism?
122 Yale L.J. 2126 (2013). There is no doubt that Gideon v. Wainwright is extraordinary, but in thinking about its uniqueness, we are reminded of “American exceptionalism” and the diametrically opposed meanings that advocates have ascribed to the phrase. Gideon too is exceptional, in both the laudatory and disparaging sense. As we set forth in this Essay, we think Gideon is both a “shining city on a hill” in the world of criminal procedure and something of a sham. We first discuss the extraordinary features of the decision itself, then lay out how it has survived largely intact, unlike virtually all other Warren Court criminal procedure decisions. Then we turn to the bleaker side of the Gideon story, first illuminating how the stingy law of ineffective assistance of counsel renders Gideon’s “shining city” illusory for many defendants, and then showing how the routine denial of investigative and expert assistance to indigent defendants further undercuts Gideon’s promise. We conclude that the mere presence of an attorney is no panacea for the ills of the twenty-first-century criminal justice system. Unless and until the Supreme Court both significantly raises the bar as to the quality of representation that satisfies the Sixth Amendment right to the effective assistance of counsel and takes action by requiring states to provide more than paltry investigative and expert services to indigent defendants, Gideon will remain an unfulfilled promise.
Gideon’s Amici: Why Do Prosecutors So Rarely Defend the Rights of the Accused?
122 Yale L.J. 2336 (2013). In Gideon v. Wainwright, twenty-three state attorneys general, led by Walter F. Mondale and Edward McCormack, joined an amicus brief on the side of the criminal accused, urging the Supreme Court to recognize indigent defendants’ Sixth Amendment right to appointed counsel in felony cases. This was a unique occurrence. Although amicus filings by public entities have increased significantly since then, including in criminal cases, government lawyers rarely submit amicus briefs in the Supreme Court supporting criminal defendants’ procedural rights, and never en masse as in Gideon. The states’ public support for Gideon’s position points up the special nature of the right to a defense lawyer—a right that is fundamental to a fair trial and to avoiding wrongful convictions and which most states had already recognized as a matter of state law by the time Gideon was argued. Although Gideon was special, there have been recent Supreme Court criminal cases in which progressive government lawyers might similarly have supported recognition of the procedural right in issue. This Essay identifies philosophical, practical, and political reasons that might explain government lawyers’ unwillingness to take the defense side on questions before the Court, but argues that these rationales are not entirely convincing. The Essay concludes that, consistent with their duty to seek justice, government lawyers should play a stronger role in promoting criminal procedural fairness by occasionally serving as Supreme Court amici on the defense side.
Gideon’s Law-Protective Function
122 Yale L.J. 2460 (2013). Gideon v. Wainwright dramatically affects the rights of indigent defendants by entitling them to representation. But Gideon has another systemic consequence as well. In addition to protecting the rights of individual defendants in particular trials, Gideon also protects the integrity of the development of the law by ensuring that the legal principles courts articulate are the product of a legitimate adversarial process. While law protection was not an explicit rationale for the outcome in Gideon, the decision’s reasoning and the surrounding historical context resonate with a concern for the integrity of judicial lawmaking. And an examination of subsequent cases reveals the influence of appointed counsel on the shape of the law. The guarantee of counsel, then, has significant benefits for courts’ lawmaking endeavor, and, indeed, these benefits serve as an independently sufficient rationale for the provision of counsel to indigent defendants. This alternative rationale for Gideon offers a justification for extending the entitlement to counsel to certain civil contexts that raise concerns similar to those present in the criminal context.
Gideon’s Shadow
122 Yale L.J. 2482 (2013). The right to counsel is regarded as a right without peer, even in a field of litigation saturated with constitutional protections. But from this elevated, elite-right status, the right to counsel casts a shadow over the other, less prominent criminal procedure rights. Elaborating on this paradoxical aspect of the Gideon right – that the very prominence of the right tends to dilute other rights, or at least justify limitations on non-Gideon rights – this Essay analyzes the judicial and scholarly practice of employing the counsel right as a cudgel to curb other rights.
Implicit Racial Bias in Public Defender Triage
122 Yale L.J. 2626 (2013). Despite the promise of Gideon, providing “the guiding hand of counsel” to indigent defendants remains unmanageable, largely because the nation’s public defender offices are overworked and underfunded. Faced with overwhelming caseloads and inadequate resources, public defenders must engage in triage, deciding which cases deserve attention and which do not. Although scholars have recognized the need to develop standards for making these difficult judgments, they have paid little attention to how implicit, i.e., unconscious, biases may affect those decisions. There is reason to suspect that unconscious biases will influence public defender decisionmaking due to generations of racial stereotypes specific to stigmatized groups and crime. This Essay urges legal scholars and practitioners to consider how implicit biases may influence the rationing of defense entitlements and suggests ways to safeguard against the effects of these unconscious forces.
Investigating Gideon’s Legacy in the U.S. Courts of Appeals
122 Yale L.J. 2376 (2013). This Essay investigates the legacy of Gideon by examining the de facto courts of last resort for convicted offenders: the federal courts of appeals. Part I focuses on the U.S. courts of appeals’ judges and caseloads, revealing that very few federal appellate judges have prior criminal defense experience, despite the fact that half of their caseload consists of criminal and quasicriminal appeals. Part II posits that in an era of mass incarceration, the perspective of judges who have had criminal defense experience may be especially vital because judges’ lack of criminal defense experience may affect their ultimate assessment of the merits of criminal and quasicriminal appeals. The Essay calls for further research to investigate whether federal appellate judges’ prior experience in criminal defense or prosecution may affect their determination of the merits of a criminal conviction.