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January 13, 2011

"The People’s Right: Reimagining the Right to Counsel"

The title of this post is the title of this interesting looking new article by Martin Guggenheim and now available via SSRN. Here is part of the abstract:

This Article re-imagines the Sixth Amendment’s right to counsel, which has been treated exclusively as an individual right enforceable through the Due Process Clause, as a collective right of the People.  Building on the writings of Anthony Amsterdam and Akhil Amar, this Article argues that there are vital structural protections inherent in the right to counsel that go well beyond an individual’s due process rights.  In particular, the Founders of the Constitution, above all else, contemplated a robust system of checks and balances when executive power was exercised.  Perhaps the paradigmatic example of the exercise of such power is the arrest and prosecution of an individual. In the world inhabited by the Founders, the primary means by which executive power was to be checked was through the jury system.

In the modern crush of criminal justice, however, juries play a statistically insignificant checking power function. In the overwhelming majority of cases prosecuted in state court, defendants are not provided with an attorney who has the capacity to undertake any kind of meaningful investigation into the facts and circumstances of their cases.

Courts need to rely on a vital ally when performing their oversight responsibilities.  They depend (we depend) on a robust indigent defense system which routinely investigates the underlying facts and circumstances of individual cases as the only truly meaningful check on executive power.... 

Separation of powers, which has long been a shield preventing courts from overseeing indigent defense systems, is now a sword by which courts are authorized to decide for themselves whether indigent defense systems are adequate to allow courts to do their duty.  If courts find they are not, they would be constitutionally empowered to fix the problem by insisting that more money is made available for indigent defense.

An indigent defender system is widely understood as necessary to protect and enforce the rights of its clients.  But taken as a whole, the indigent system becomes something much bigger.  If the individual defense attorney may be seen as a private attorney general enforcing the rights of his or her client, the collective defense system should be seen as the investigative arm of the judiciary providing meaningful oversight on executive power. Without a robust indigent defense system, one with the capacity to investigate cases on a regular basis, the executive branch ends up with a license to act which would have been unthinkable to the Framers of the Constitution who worked so carefully to ensure that executive power would be checked on a regular basis

January 13, 2011 at 06:06 PM | Permalink


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This is brazen lawyer rent seeking. No data showing increasing the budget for indigent defense would increase accuracy or any other aspect of justice. I suggest an alternative.

1) Torts. End all self-dealt immunities because they violate the due process rights to a fair hearing and the Establishment Clause. The sole justification for the immunity of mental cripples and total incompetents now running the criminal justice is that the Sovereign speaks with the voice of God (Henry of Bratton). This is not only religious in nature, it is delusional and idiotic. Liability should not only be to the defendant, but also to the public upon whom they loose vicious predators, all the time.

2) Judging is difficult. Today, it is done by know nothing amateurs, often electoral loser political hacks, idiots. It should become a totally separate new profession from lawyering, since it is nearly unrelated. Middle age people with a judicial temperament and experience taking responsibility for decision making should be recruited for a two year academic course. Its big theme? Obey the law, do not make the law. Then they do judging under supervision for a year. Then, they take a judge licensing examination. Only the licensed may serve on the bench, whether appointed or elected. They carry their own professional liability insurance. Today, my hair cutter has more education and has passed more testing than any Supreme Court Justice. The results of their amateurishness, incompetence, and idiocy are evident in every one of their idiotic utterances and decisions.

3) Judges are among the most experienced in the court. Judges may be idiots, but prosecutors are often young, inexperienced idiots. Judges should be allowed to become inquisitorial without losing their jobs. Their discretion should extend to generating charges, and not just dismissing them. The lawyer has the most seasoned person in the court totally hobbled.

Posted by: Supremacy Claus | Jan 14, 2011 6:49:56 AM

What "would have been unthinkable to the Framers of the Constitution" is the judicial branch seizing the purse strings from the legislature.

The Sixth Amendment they enacted did not provide for government-funded defense at all.

People who urge the courts to propose and ratify their own constitutional amendments should just be honest about it and not cloak their arguments in transparently false originalism.

Posted by: Kent Scheidegger | Jan 14, 2011 2:31:19 PM

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