Criminal Procedure
A Conversation with Justice Sotomayor
On February 3, 2014, Justice Sonia Sotomayor delivered the James A. Thomas Lecture at Yale Law School. This transcript is adapted (with slight editing) from that lecture, which took the form of a conversation between Justice Sotomayor and Linda Greenhouse. The lecture touched on topics including Justice Sotomayor’s conception of her role and her jurisprudence, her agreements and disagreements with colleagues, and her outreach to the wider public.
Justice Sotomayor and Criminal Justice in the Real World
As part of the symposium to reflect on Justice Sotomayor’s first five years on the Supreme Court, this Essay explores Justice Sotomayor’s contributions to the Court’s criminal law jurisprudence. Professor Rachel Barkow argues that Justice Sotomayor’s prior experience working on criminal law cases as a prosecutor and trial judge have influenced her Supreme Court opinions, which focus on how things actually work in practice, pay close attention to the specific facts of cases, and show sensitivity to the need for checks on government power. These commitments often lead Justice Sotomayor to reject formal rules that would promote predictability at the expense of accurately reflecting the world in which the rules must operate.
Justice Sotomayor and the Jurisprudence of Procedural Justice
In this Essay, Professors Tyler and Meares highlight the ways in which recent social science research supports the model of jurisprudence articulated by Justice Sotomayor. Her model defines building identification with political and legal institutions as an important goal for the Court. It further suggests that this goal is best achieved when the Court exercises its authority using just procedures. That perspective is consistent with research on the foundations of popular legitimacy demonstrating that perceived procedural justice of the Court most strongly shapes it. Social science findings further reveal the factors shaping popular conceptions of procedural justice.
Justice Sotomayor and the Supreme Court’s Certiorari Process
The Supreme Court’s certiorari process is generally a black box. Occasionally, however, Justices issue statements explaining their dissent from or concurrence in the denial of certiorari. Since she joined the Court, Justice Sotomayor has produced more of these statements than any of her colleagues. In this Essay, Robert Yablon considers what Justice Sotomayor’s certiorari-stage writings reveal about her substantive passions and her vision of the Supreme Court’s institutional responsibilities. Nearly all of Justice Sotomayor’s statements decry instances in which the criminal justice system failed to deliver on its promise of ethical and evenhanded justice, whether due to structural defects or individual transgressions on the part of prosecutors or courts. The author suggests that, were the Court to recalibrate its docket along the lines Justice Sotomayor’s writings advocate, the Court could improve the functioning of the legal system as well as its own institutional standing.
Reading Michigan v. Bryant, “Reading” Justice Sotomayor
What are we to make of Justice Sotomayor’s criminal procedure jurisprudence? In this Essay, Professor I. Bennett Capers attempts to answer that question by offering three readings of her Confrontation Clause decision in Michigan v. Bryant. All three close readings, coupled with details from her memoir, serve as the basis for a “reading” of Justice Sotomayor. In toto, these readings reveal Justice Sotomayor to be precedent-bound, except when she’s not, and to be progressive, but not above using conservative methodologies to get her way. Ultimately, Professor Capers suggests that her approach offers some heartening signals and some possible dangers, but also reasons to hope.
Secrecy, Intimacy, and Workable Rules: Justice Sotomayor Stakes Out the Middle Ground in United States v. Jones
In this Essay, Professor Miriam Baer focuses on Justice Sotomayor’s concurrence in United States v. Jones, which has attracted widespread notice due to Justice Sotomayor’s suggestion that the Court reconsider its reasonable expectation of privacy test and the related third-party doctrine. Professor Baer argues that Justice Sotomayor’s opinion exemplifies an attempt to stake out a “middle ground” approach to Fourth Amendment debates over surveillance and technology, one which foregrounds intimacy and common-sense rules as guiding principles.
On Estimating Disparity and Inferring Causation: Sur-Reply to the U.S. Sentencing Commission Staff
In this Essay, Professors Starr and Rehavi respond to the U.S. Sentencing Commission’s empirical staff’s criticisms of their recent article, which found, contrary to the Commission’s prior work, no evidence that racial disparity in sentences increased in response to United States v. Booker. As Starr and Rehavi suggest, their differences with the Commission perhaps relate to differing objectives. The Commission staff’s reply expresses a lack of interest in identifying Booker’s causal effects; in contrast, that is Starr and Rehavi’s central objective. In addition, Starr and Rehavi’s approach also accounts for disparities arising throughout the post-arrest justice process, extending beyond the Commission’s narrower focus on disparities in adherence to the Sentencing Guidelines. Beyond these core disagreements, Starr and Rehavi point to several ways in which the reply’s other criticisms inaccurately describe their claims, their methods, and the scope of their study’s sample.
Why Judges Matter at Sentencing: A Reply to Starr and Rehavi
In this Essay, researchers at the United States Sentencing Commission respond to criticisms by Sonja Starr and Marit Rehavi, published in the Yale Law Journal, of the Commission’s past analyses of demographic differences in federal sentences. The researchers explain the legal and practical foundation of their work and why these considerations support the Commission’s methodological approach. The authors also question the representativeness of the data that Starr and Rehavi use in their alternative analyses and the assumptions they make about how the federal criminal justice system operates.
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.