Criminal Procedure
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.
Lessons from Gideon
122 Yale L.J. 2676 (2013). Why has the promise of Gideon gone largely unfulfilled and what can be learned from this? Gideon was an unfunded mandate to state governments, requiring them to provide the money to ensure competent counsel for all criminal defendants facing possible prison sentences. Gideon failed to provide any enforcement mechanism to ensure adequate funding and no subsequent cases have done so. Nor did Gideon recognize that providing an attorney is not sufficient; it must be a competent lawyer. The Supreme Court has made it so difficult to demonstrate ineffective assistance of counsel that those who cannot afford an attorney often are saddled with incompetent counsel and are left with no remedy. Simply put, money matters in fulfilling Gideon’s promise and the Court provided no way of ensuring adequate funding. Providing adequate funding for counsel, whether in criminal or civil or immigration cases, will be problematic so long as it is a welfare program for the poor. The right to counsel will be meaningful only if there are enforcement mechanisms to ensure adequate funding and the provision of competent counsel.
Poor People Lose: Gideon and the Critique of Rights
122 Yale L.J. 2176 (2013). 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.
Race and the Disappointing Right to Counsel
122 Yale L.J. 2236 (2013). Critics of the criminal justice system observe that the promise of Gideon v. Wainwright remains unfulfilled. They decry both the inadequate quality of representation available to indigent defendants and the racially disproportionate outcome of the criminal process. Some hope that better representation can help remedy the gross overrepresentation of minorities in the criminal justice system. This Essay is doubtful that better lawyers will significantly address that problem. When the Supreme Court decided Gideon, it had two main purposes. First, it intended to protect the innocent from conviction. This goal, while imperfectly achieved at best, was explicit. Since Gideon, the Court has continued to recognize the importance of innocence claims at trial, issuing important, pro-defense decisions in the areas of confrontation, jury factfinding, the right to present a defense, and elsewhere. The Court’s second goal was to protect African Americans subject to the Jim Crow system of criminal justice. But, as it had in Powell v. Alabama, the Court pursued this end covertly and indirectly, attempting to deal with racial discrimination without explicitly addressing it. This timidity was portentous. Gideon did not mark the beginning of a judicial project to eliminate race from the criminal justice system root and branch. Since Gideon, the Court has made it practically impossible to invoke racial bias as a defense; so long as those charged are in fact guilty, discrimination in legislative criminalization, in enforcement, and in sentencing practices are essentially unchallengeable. Since Gideon, racial disproportionality in the prison population has increased. Not only might Gideon not have solved the problem, it may have exacerbated it. To the extent that Gideon improved the quality of counsel available to the poor, defense lawyers may be able to obtain favorable exercises of discretion in investigation, prosecution, and sentencing for indigent white defendants that they cannot for clients of color. For these reasons, racial disparity likely cannot be remedied indirectly with more or better lawyers. Instead, the remedy lies in directly prohibiting discrimination and having fewer crimes, fewer arrests, and fewer prosecutions.
Searching for Solutions to the Indigent Defense Crisis in the Broader Criminal Justice Reform Agenda
122 Yale L.J. 2316 (2013). As we mark the fiftieth anniversary of the Gideon v. Wainwright decision, the nearly universal assessment is that our indigent defense system remains too under-resourced and overwhelmed to fulfill the promise of the landmark decision, and needs to be reformed. At the same time, fiscal necessity and moral outrage have prompted a historic reexamination of outdated policies that have led to an overreliance on incarceration and inefficiencies in the administration of criminal justice. This Essay argues that there are synergies between the indigent defense reform agenda and the broader criminal justice reform agenda, which places a premium on cost-effective, evidence-based, innovative ways to reduce crime and recidivism and enhance public safety. By integrating indigent defense reform into this emerging “smart-oncrime” reform movement, we not only make better criminal justice policy, we also reaffirm our fidelity to the constitutional values undergirding Gideon.
Valuing Gideon’s Gold: How Much Justice Can We Afford?
122 Yale L.J. 2358 (2013). In this Essay, we explore Gideon’s impact in our community, El Paso, Texas, which has the will to try to meet Gideon’s challenge, but lacks the resources to deliver fully Gideon’s promise. We look at the origins of our community’s indigent defense reform and examine our office’s subsequent ability to provide effective assistance of counsel to our clients. We recount our journey in managing two of our greatest challenges. The first challenge involves our efforts to increase our low trial rate; our slow and reluctant acceptance of a defense practice that is overwhelmingly a pretrial and plea one; and our examination of various measures, case outcomes, and lawyering skills as indicators that the client’s best interest is driving our strategies and that we are not operating a plea mill. The second challenge is helping our clients who suffer from mental illness or intellectual disability. We struggle to secure due process and fundamental fairness for these individuals in the face of meager defense resources and the almost complete lack of mental health and social services.
Why Civil Gideon Won’t Fix Family Law
This Essay explains why we should hesitate before throwing full support behind a civil Gideon initiative for family law, regardless of how wholeheartedly we embrace the proposition that parental rights are as important as physical liberty. The comparable importance of these interests does not necessarily mean that custody disputes should have the same procedural character as criminal matters, as becomes evident upon exploring some of the social, emotional, and structural qualities that differentiate the two contexts. Enhancing access to justice in family law requires that we design custody dispute resolution systems that honor the constitutionally significant interests at stake while recognizing the truly unique posture in which separating parents litigate. To pursue civil Gideon as a stand-alone reform falls short of this challenge; it accepts the primacy of a lawyer-centric adversary system as the preferred means for resolving custody disputes in the face of growing evidence that this framework does more harm than good for most domestic relations litigants.
Mere Negligence or Abandonment? Evaluating Claims of Attorney Misconduct After Maples v. Thomas
122 Yale L.J. 1328 (2013). In recent terms the Supreme Court has attempted to carve out remedies for habeas petitioners with negligent lawyers. This Note explores the analysis used by the Court in these cases and applies a novel descriptive model to explain how the Court has applied two different models of analysis, a performance-based model and a relationship-based model, to examine attorney behavior. Over twenty years ago, the Supreme Court applied a rigid relationship-based model in Coleman v. Thompson, in holding that habeas petitioners were bound by the acts and omissions of their attorneys because their attorneys were the petitioners' "agents." Last term, in Maples v. Thomas, the Supreme Court reaffirmed the application of agency principles in the habeas context, but carved out an exception for clients who are "abandoned" by their attorneys. This Note explores the potential scope of the "abandonment" exception, and argues that federal habeas courts should draw on principles drawn from civil litigation cases and apply a flexible approach to determining when a client has effectively been "abandoned" by his attorney.
Asymmetries and Incentives in Plea Bargaining and Evidence Production
122 Yale L.J. 690 (2012). Legal rules severely restrict payments to fact witnesses, though the government can often offer plea bargains or other nonmonetary inducements to encourage testimony. This asymmetry is something of a puzzle, for most asymmetries in criminal law favor the defendant. The asymmetry seems to disappear when physical evidence is at issue. One goal of this Essay is to understand the distinctions, or asymmetries, between monetary and nonmonetary payments, testimonial and physical evidence, and payments by the prosecution and defense. Another is to suggest ways in which law could better encourage the production of evidence, and thus the efficient reduction of crime, with a relaxation of the rule barring payment.
Confronting Crawford v. Washington in the Lower Courts
122 Yale L.J. 782 (2012). Crawford v. Washington is arguably the most significant criminal procedure decision of the last decade. Critics have argued that the Crawford line is a doctrinal muddle that has led to arbitrary and unpredictable results in the lower courts. I respond to this critique by presenting results from the first large-scale empirical analysis of post-Crawford Confrontation Clause cases in the lower courts. The results show that courts have emphasized two factors—the presence of a state actor and the presence of an injured party—to evaluate whether a statement is testimonial under Crawford. I then argue that, contrary to conventional wisdom, these results are not ambiguous or contradictory but instead consistent with the reasoning of Crawford and the underlying purposes of the Confrontation Clause.
Targeting the Twenty-First-Century Outlaw
122 Yale L.J. 724 (2012). This Note proposes using outlawry proceedings to bring legitimacy to the government’s targeted killing regime. Far from clearly contrary to the letter and spirit of American due process, outlawry endured for centuries at English common law and was used to sanction lethal force against fugitive felons in the United States until as recently as 1975. Because it was the outlaw’s refusal to submit to the legal process that warranted the use of lethal force against him, the choice of process was necessarily preserved through basic protections such as charges and notice. This Note argues that these principles can be updated for the twenty-first century and used to subject the government’s targeted killing of U.S. citizens to limited judicial review.
Burden of Proof
121 Yale L.J. 738 (2012). The burden of proof is a central feature of all systems of adjudication, yet one that has been subject to little normative analysis. This Article examines how strong evidence should have to be in order to assign liability when the objective is to maximize social welfare. In basic settings, there is a tradeoff between deterrence benefits and chilling costs, and the optimal proof requirement is determined by factors that are almost entirely distinct from those underlying the preponderance of the evidence rule and other traditional standards. As a consequence, these familiar burden of proof rules have some surprising properties, as do alternative criteria that have been advanced. The Article also considers how setting the proof burden interacts with other features of legal system design: the determination of enforcement effort, the level of sanctions, and the degree of accuracy of adjudication. It compares and contrasts a variety of legal environments and methods of enforcement, explaining how the appropriate proof requirements differ qualitatively across contexts. Most of the questions raised and answers presented differ in kind—as well as in result—from those in prior literature.
Padilla v. Kentucky: The Effect of Plea Colloquy Warnings on Defendants’ Ability To Bring Successful Padilla Claims
121 Yale L.J. 944 (2012). In Padilla v. Kentucky, the Supreme Court held that a lawyer’s failure to advise her noncitizen client of the deportation consequences of a guilty plea constitutes deficient performance of counsel in violation of a defendant’s Sixth Amendment rights. In the plea context, defendants are also protected by the Fifth Amendment privilege against self- incrimination and the Due Process Clause, which requires that judges and defendants engage in a conversation regarding the consequences of the plea—the so-called “plea colloquy”—before the defendant can enter a valid guilty plea. In many plea colloquies, judges issue general warnings to defendants regarding the immigration consequences of a guilty plea. Since Padilla, a number of lower courts have held that such general court warnings prevent a defendant from proving prejudice and prevailing on an ineffective assistance of counsel claim where there might otherwise be a Padilla Sixth Amendment violation. This Note argues that those rulings mistakenly conflate the role of the court in a Fifth Amendment plea colloquy and the role of counsel under the Sixth Amendment and, further, that they misread the clear directives of Padilla. In the plea context, the court and defense counsel serve complementary but distinct functions in our constitutional structure; neither can replace the other, and the failure of either court or counsel constitutes a breakdown in our system. Circumscribing Padilla’s requirements by allowing plea colloquies to “cure” the prejudice created by Sixth Amendment Padilla violations is problematic because the Fifth Amendment plea colloquy provides significantly less protection to criminal defendants. Thus, the substitution of the plea colloquy for advice from counsel will substantially undercut the Padilla decision.
Baseline Framing in Sentencing
121 Yale L.J. 426 (2011). When judges sentence criminal offenders, they begin their analysis with a baseline sentence established by statutes or guidelines. Cognitive biases will likely cause this initial baseline to frame judges’ thought processes, such that judges will impose different sentences in identical cases depending on the baseline sentence from which the judge’s analysis begins. This Note shows that baseline framing will lead to disproportionately low sentences in a floor baseline regime, disproportionately high sentences in a ceiling baseline regime, and sentences disproportionately clustered around the typical sentence in a typical crime baseline regime. In order to design the most just sentencing procedures, policymakers must consider baseline framing effects. This Note suggests that policymakers who want to minimize the number of sentences skewed by cognitive error should implement a typical crime baseline. In contrast, policymakers who want to err against inflicting unreasoned punishment should implement Tennessee’s quasi-floor baseline.
Deal or No Deal? Remedying Ineffective Assistance of Counsel During Plea Bargaining
120 Yale L.J. 1532 (2011). What happens when a defendant receives defective counsel during plea bargaining but subsequently receives a fair trial? This Note discusses three different approaches: no remedy, specific performance of the plea bargain, and a retrial. It argues that specific performance of the plea bargain violates various judicial and constitutional principles, while ordering no remedy at all relies on a flawed understanding of the Sixth Amendment. This Note introduces the notion that ineffective assistance of counsel during plea bargaining is a structural error in the criminal process, rather than a trial error. It concludes that the only workable solution is to order a new trial.
Neuroscience and Institutional Choice in Federal Sentencing Law
120 Yale L.J. 367 (2010).
Huppert v. City of Pittsburg: The Contested Status of Police Officers’ Subpoenaed Testimony After Garcetti v. Ceballos
119 Yale L.J. 2143 (2010).