Sentencing Law and Policy

Former Justice Stevens reviews late Professor Stuntz's "The Collapse of American Criminal Justice"

In the new issue of the The New York Review of Books, Former SCOTUS Justice John Paul Stevens reviews the final book written Professor Bill Stuntz, which is titled "The Collapse of American Criminal Justice."   This terrific and lengthy review is headlined "Our ‘Broken System’ of Criminal Justice," and here is how it starts and finishes:

William Stuntz was the popular and well-respected Henry J. Friendly Professor of Law at Harvard University.  He finished his manuscript of The Collapse of American Criminal Justice shortly before his untimely death earlier this year.  The book is eminently readable and merits careful attention because it accurately describes the twin problems that pervade American criminal justice today — its overall severity and its disparate treatment of African-Americans.

The book contains a wealth of overlooked or forgotten historical data, perceptive commentary on the changes in our administration of criminal justice over the years, and suggestions for improvement. While virtually everything that Professor Stuntz has written is thought-provoking and constructive, I would not characterize the defects in American criminal justice that he describes as a “collapse,” and I found his chapter about “Earl Warren’s Errors” surprisingly unpersuasive.

Rather than focus on particular criminal laws, the book emphasizes the importance of the parts that different decision-makers play in the administration of criminal justice.  Stuntz laments the fact that criminal statutes have limited the discretionary power of judges and juries to reach just decisions in individual cases, while the proliferation and breadth of criminal statutes have given prosecutors and the police so much enforcement discretion that they effectively define the law on the street....

Professor Stuntz’s account of the “collapse” of an overgrown system of criminal law enforcement is well worth reading.  It is full of interesting historical discussion. It accurately describes the magnitude of the twin injustices in the administration of our criminal law.  It should motivate voters and legislators to take action to minimize those injustices.

The publisher's website for Stuntz's book has this summary overview of the book and its themes:

The rule of law has vanished in America’s criminal justice system. Prosecutors now decide whom to punish and how severely.  Almost no one accused of a crime will ever face a jury. Inconsistent policing, rampant plea bargaining, overcrowded courtrooms, and ever more draconian sentencing have produced a gigantic prison population, with black citizens the primary defendants and victims of crime.  In this passionately argued book, the leading criminal law scholar of his generation looks to history for the roots of these problems — and for their solutions.

The Collapse of American Criminal Justice takes us deep into the dramatic history of American crime — bar fights in nineteenth-century Chicago, New Orleans bordellos, Prohibition, and decades of murderous lynching. Digging into these crimes and the strategies that attempted to control them, Stuntz reveals the costs of abandoning local democratic control.  The system has become more centralized, with state legislators and federal judges given increasing power.  The liberal Warren Supreme Court’s emphasis on procedures, not equity, joined hands with conservative insistence on severe punishment to create a system that is both harsh and ineffective.

What would get us out of this Kafkaesque world?  More trials with local juries; laws that accurately define what prosecutors seek to punish; and an equal protection guarantee like the one that died in the 1870s, to make prosecution and punishment less discriminatory. Above all, Stuntz eloquently argues, Americans need to remember again that criminal punishment is a necessary but terrible tool, to use effectively, and sparingly.

"Balanced Justice: Cost-Benefit Analysis and Criminal Justice Policy"

The title of this post is the title of this notable new research paper from NYU's Institute for Policy Integrity, which urges policymakers to apply more economic analysis and cost/benefit research to criminal justice policy. Here is how the report is described via this webpage: 

Crime and justice are not usually associated with cost-benefit analysis. But they should be, according to new research. This is especially true in an economic downturn, when government funding is scarce. In “Balanced Justice,” released jointly with the Center for the Administration of Criminal Law, author Jennifer Rosenberg reviews a growing body of research showing that counting the costs and benefits of our nation’s justice system can highlight areas of improvement that can save billions of taxpayer dollars without compromising public safety.

Instead of incarceration, behavioral therapy for young offenders is saving Washington State money and keeping citizens safer.  In Hawaii, intensive supervision is keeping parolees out of expensive penitentiaries and keeping cash in state coffers.  And all over the country, drug courts have proven cost-effective alternatives to standard prison sentences, lowering recidivism rates and earning taxpayers sizeable returns on investment.

These results show how powerful the use of economic analysis can be when applied to criminal justice policy.  Many of these initiatives cost less than incarceration and future benefits can dwarf the administrative costs of implementing new criminal justice programs.

Over at The Atlantic, Andrew Cohen has this effective follow-up commentary on this new report, which concludes with these insightful points:

It's been 23 years now since George H.W. Bush used the infamous "Willie Horton" campaign advertisement to portray Michael Dukakis as "soft on crime."  It's been nearly twice that long since the so-called "silent majority" took back the streets.  Violent crime is down.  But generations of Americans have come and gone accepting the shibboleth that the easiest answer about criminal justice -- lock 'em up and throw away the key -- is the best answer about criminal justice.

The price we have paid for this lazy calculus is dear: our prisons now are teeming with inmates, the highest population in the world, and many of our states can no longer afford to adequately house them.  Of course, many criminals deserve to be there.  But many do not.  For years there has been a strong economic case for legalizing (and taxing) marijuana.  And now, more broadly, there is a stronger economic case for keeping more criminals out of prison.

The NYU study represents a smart new way of looking at an old problem; an economic evaluation that strips away some of the emotion (and demagogeury) that surrounds any discussion of crime and justice.  It's easier to be "tough on crime" when you can pay the price, right?  But now we can't.  And the collective poverty within our criminal justice systems isn't going to ease on its own.  So bring in the economists! And let the stale, old law-and-order crowd step aside.

A comical complaint about laws and harsh guidelines

I am not a daily reader of the funny pages, and I am not sure I have ever before even seen the daily comic "Get Fuzzy."  But I may need to start following this comic for professional reasons, because a kind reader alerted me to a sentencing-related punchline from today's Get Fuzzy strip. 

The punchline from today's strip, which can be read in full at this link, is as follows: "I'm fine with the laws.  It's the harsh minimum sentencing guidelines I'm having an issue with."  I cannot help but wonder if the creator of Get Fuzzy has spent some time in federal courthouses; this line sound like it came straight from a federal sentencing transcript.  

Vera Institute produces special Federal Sentencing Reporter issue: “Sentencing Within Sentencing”

I am so very pleased and proud to announce that the October 2011 issue of the Federal Sentencing Reporter is now complete and available on line.   This is a special issues that was put together by the amazing folks at the Vera Institute of Justice, and here is how Vera describes the contents:

The October issue of the journal Federal Sentencing Reporter (FSR) examines the theme of “Sentencing Within Sentencing” — punishments defendants face in addition to those meted out by judges upon conviction. As Alison Shames, associate director of Vera’s Center on Sentencing and Corrections, writes in the “Editor’s Observations” column, “People involved in the criminal justice system are, in fact, punished at multiple points.” 

The special Vera-edited issue presents new articles and reprints by staff, alumni, and associates that address a broad range of collateral penalties, including pretrial detention due to inability to afford bail, solitary confinement, and court fees and fines.  The articles reflect Vera’s work since its founding 50 years ago, with a focus on the U.S. criminal justice, juvenile justice, and immigration systems.

You can read Alison Shames’s column and an article by Vera cofounder Herbert Sturz free of charge online.  Vera will publish related guest blog posts and additional articles from the new issue of FSR on the website in the coming weeks.

Read a blog post about this issue of FSR by Vera’s director, Michael Jacobson.

Great new Rutgers resource reviewing crim books

Via Professor Stuart Green, I am please to be able to relay this notice concerning what looks like a great new criminal justice researcher and reader resource:

Rutgers Law School-Newark and the Rutgers School of Criminal Justice are pleased to announce the launch of a new website called Criminal Law and Criminal Justice Books.   We aim to publish high-quality, timely, and concise on-line reviews of important and interesting new books in criminal law, criminal procedure, and criminal justice. 

Among the great looking new books subject to great looking reviews are:

• Convicting the Innocent: Where Criminal Prosecutors Go Wrong
• The Boundaries of the Criminal Law
• Retributivism: Essays on Theory and Policy

"Ex Ante Fairness in Criminal Law and Procedure"

The title of this post is the title of this new paper from Professor Vincent Chiao available via SSRN.  The piece discusses in interesting ways both death penalty and federal sentencing outcomes.  Here is the abstract:

In Furman v. Georgia, the United States Supreme Court announced that it would not tolerate a capital sentencing regime that imposed death sentences in a seriously arbitrary fashion.  The question I ask in this paper is whether we should in fact object to arbitrariness in punishment.  The answer I propose is that under plausibly adverse conditions, we might not object to arbitrary penal outcomes, because under those conditions a fair distribution of punishment would be one equalizes chances across a class of similarly situated criminals.  In particular, fairness may require no more than a rough equalization of ex ante chances under conditions of resource scarcity, an inability to reliably rank claims by comparative desert, and a pressing need for punishment to be imposed.  I call this an ex ante theory of fairness.

The central virtue of ex ante fairness is that it is capable of reconciling parsimony in punishment with equity in its distribution, even when claims about who deserves what are deeply contested.  Adopting an ex ante standard of fairness means that a concern for fair treatment of the guilty need not blind us to the realities of the severe resource constraints faced by American criminal justice, and vice versa.

After laying out the argument for ex ante fairness in general terms, I proceed to show how several prominent features of American criminal law and procedure -- the Supreme Court’s capital jurisprudence, prosecutorial discretion, non-capital sentencing post-Booker, and “strict” criminal liability -- all exhibit an implicit commitment to an equalization of chances rather than of outcomes.

New US Sentencing Commission reviews of sentencing jurisprudence

Undaunted by earthquakes or hurricanes or the unnatural disasters that are even more common inside the Beltway these days, the US Sentencing Commission this summer has completed and now posted new documents that "present specific decisions by the U.S. Supreme Court and U.S. circuit courts of appeals regarding the federal sentencing guidelines and related sentencing issues."

Specifically, at this link everyone can find a lengthy document with brief summaries of nearly every major Supreme Court ruling on federal sentencing issues over the last 25 years.  And, on this page, everyone can find links to circuit-by-circuit reports on guideline interpretation and post-Booker jurisprudence.

2011-2012 supplement for Sentencing Law and Policy casebook now available

As a new school year approaches, I am happy to be able to share an updated electronic supplement providing additional materials to accompany the second edition of the Sentencing Law and Policy casebook.  Anyone can download this 2011-2012 supplement below.

This updated supplement includes edited versions and notes on the 2011 SCOTUS cases of Pepper and Plata (while also retaining versions of the big prior recent SCOTUS cases of Graham, Padilla, Kennedy, Kimbrough and Gall).  There are also a bunch of additional notes covering various major sentencing developments from the past few years, including the passage of the Fair Sentencing Act of 2010 and the litigation surrounding the capital punishment administration in North Carolina in the wake of the state's adoption of its racial Justice Act. 

As always, my co-authors and I hope that adopters of our text (and others) find this new, updated supplement useful, and we welcome comments and suggestions.

Download 2011SuppDBMW 

Lots of diverse crime and punishment news at The Crime Report

I have often mentioned that one of my daily web-stops for criminal justice news and commentary is The Crime Report, and this fascinating and diverse set of recent entries under its Crime and Justice News banner helps highlight why: 

• Second-Strike Penalties Account for 32,000 California Prison Inmates
• Utah Sees Gains in Stubborn Problem of Prisoner Recidivism
• Next Legal Gun Fight May Be the Right to Bear Arms in Public
• 'Social Impact Bonds' Touted for Criminal Justice Investments
• HuffPost: More College Students Paying Bills Through Prostitution

Crackerjack coverage of new crack guidelines and retroactivity decision on USSC website

I am very pleased to see and to report that the US Sentencing Commission's ever-improving website now has this special webpage titled "Materials on Federal Cocaine Offenses."  This new special page provides especially effective and comprehensive coverage of the USSC's decision last week to make its new crack sentencing guideline retroactive.  This new webpage also brings together in one space via links all the most important USSC materials concerning federal crack sentencing law and policy, including a helpful "Reader-Friendly" Version of Amendment on Retroactivity, which becomes effective November 1, 2011.

I sincerely hope that the US Sentencing Commission will continue to build these sorts of specialized pages with collected materials on all hot federal sentencing topics.  I believe additional special pages on the immigration guidelines, the child porn guidelines, the fraud guidelines and others could and would be very helpful to both practitioners and researchers.

"Cruel and Unusual Federal Punishments"

The title of this post is the title of this interesting and important new article by Professor Michael Mannheimer. Here is the abstract:

In recent years, federal prison sentences have often far outstripped state sentences for the same criminal conduct.  This is the result of the confluence of two trends.  First, crime has become increasingly federalized, so that the very same criminal conduct typically punished by state law, such as drug trafficking, gun possession, and child pornography offenses, is increasingly being punished in federal court.  Second, the federal sentencing guidelines and statutory mandatory minimum sentences for many of these offenses have grown so as to far exceed the sentences available in state court.

Virtually all federal defendants who have challenged their sentences as, “cruel and unusual punishment,” in violation of the Eighth Amendment have failed.  This is not surprising. The Supreme Court jurisprudence on cruel and unusual carceral punishments is extraordinarily deferential to legislative judgments about how harsh prison sentences ought to be for particular crimes.  This deferential approach stems largely from concerns of federalism, for all of the Court’s modern cases on the Cruel and Unusual Punishments Clause have addressed state, not federal, sentencing practices.  Thus, they have addressed the Eighth Amendment only as incorporated by the Fourteenth.  Indeed, one must go back a century to find a Supreme Court case addressing proportionality in the context of federal sentencing, and that case was highly atypical.  Thus, federal courts find themselves applying a deferential standard designed in large part to safeguard the values of federalism in cases where those values do not call for deference.

The task of this article is to re-discover the meaning of the, “pure” Eighth Amendment, unmediated by the Fourteenth.  Recent academic commentary about the original understanding of the Eighth Amendment correctly focuses our attention on the Clause’s main purpose of comparing a given punishment to those generally meted out at common law for the same conduct.  Yet these commentators fail to adequately appreciate the extent to which the Eighth Amendment, like the rest of the Bill of Rights, was an attempt by the Anti-Federalists to secure individual rights through the preservation of a robust form of state sovereignty.  Moreover, the Anti-Federalists, and their political heirs, the Republicans, rejected a, “pre-realist,” vision of common law in favor of an approach that recognized the common law as varying State to State.  Thus, the Anti-Federalists took a decidedly State-centered and State-specific approach to the common-law rights that the Eighth Amendment was designed to encapsulate.  And the views and general outlook of the Anti-Federalists are critical to a complete understanding of the Bill of Rights, for it was they who won the concession of the adoption of the Bill as the price of union.

This contextualized account of the ratification of the Eighth Amendment evidences a design to limit the power of the federal government to inflict punishment for crimes to the same extent that the States limited their own power to punish.  That is to say, whether a federal punishment for a crime is, “cruel and unusual,” can be answered only in reference to the punishment for the same conduct meted out by the States.  Moreover, the Anti-Federalists’ views on the nature of the common law indicate that the appropriate comparator is the State where the criminal conduct occurred, not the States generally. But, in either event, the standard for determining whether a federal sentence is “cruel and unusual” ought to be far more stringent than that used in reviewing Eighth and Fourteenth Amendment challenges to State sentences.

Lots of notable new items via The Crime Report

The Crime Report website is a daily stop for me because it always has original pieces and links to other reporting about a rnage of important criminal justice issues with sentencing law and policy dimensions. For example, newly up on the site are these three notable items:

• Illegal Reentry the Top Federal Charge So Far This Year

• 40th Anniversary of the Drug War: Little Change, Some Hope

• Field Poll: California voters favor revamping 'three-strikes' law

Latest OSJCL issue with lots of deep punishment and sentencing thoughts

I am very pleased to report that the Spring 2011 issue of the Ohio State Journal of Criminal Law is now fully available on-line. There are an especially large number of terrific pieces in this issue, which includes not only a thoughtful article symposium on "Political Theory and Criminal Punishment" but also an awesome commentary symposium on "The HBO Series The Wire." I am eager to praise and promote every piece in this new OSJCL issue, though here I will spotlight just a few of the pieces that ought to be of special interest to sentencing fans:

Zachary Hoskins, Deterrent Punishment and Respect for Persons, 8 Ohio St. J. Crim. L. 369 (2011).

Mary Sigler, The Political Morality of the Eighth Amendment, 8 Ohio St. J. Crim. L. 403 (2011).

Roger Lane, Taking the Mystery Out of Murder Rates: Can It Be Done?, 8 Ohio St. J. Crim. L. 553 (2011).

William H. Pryor, Federalism and Sentencing Reform in the Post-Blakely/Booker Era, 8 Ohio St. J. Crim. L. 515 (2011).

"Padilla and The Delivery of Integrated Criminal Defense"

The title of this post is the title of this notable new paper by Professor Ron Wright.  Here is the abstract:

The traditional starting point for the Sixth Amendment jurisprudence is the individual defense attorney, acting alone.  Padilla v. Kentucky, however, replaced the image of the lawyer as a heroic and individualistic figure with a focus on the lawyer’s responsibility to consult others and to create an effective defense team.  This evolving conception of the lawyer as a team manager is a long-term trend that applies throughout the legal profession.

Public defender organizations already experiment with various methods for delivering the best service to clients with potential immigration issues mixed in with their criminal law issues.  Some of those methods contracted out the immigration work to specialists outside the organization; others brought the immigration expertise inside the organization, either through placing experts in a single state-level position, or by disseminating immigration experts in local offices.

The Padilla holding gives some impetus to the insider strategy.  It increases the costs to a defender organization if one of its lawyers fails to recognize a straightforward immigration issue.  As a result, Padilla tilts the field towards larger defender organizations with greater specialization of function and more coordination of effort among attorneys -- in short, toward a more bureaucratic criminal defense.

Effective review of recent past, notable present and potential future of sentencing reform

The latest issue of the American Bar Association’s Criminal Justice magazine (for which I serve on the editorial board) includes a new piece by The Sentencing Project's Marc Mauer titled "Sentencing Reform: Amid Mass Incarcerations, Guarded Optimism."  The piece, which available at this link, reviews recent legal and policy developments at both the state and federal level and also urges assesses and makes recommendation for public policy advocacy in this arena.  Here is one of many notable paragraphs from the piece:

Perhaps nowhere in the realm of social policy is there such a broad consensus among scholars and practitioners than in the area of public safety as to what should be done to promote better outcomes yet where there has been less implementation. Despite a widespread critique of mass incarceration and virtually no credible defense of its policies, reforms have been exceedingly modest and slow in coming, given the scale of the problem. Thus, while we still have much to learn about prevention, treatment, and reentry, the key dilemma we face is not so much one of figuring out “what works,” but rather how to transform the political environment to one that is more receptive to reform.

Some deep thoughts on punishment theory and criminal procedure

Classes have wrapped up for the school year (though I still have grading to finish), and it will probably be a few days before I start feeling really guilty about returning to all the writing projects that stalled during a busy semester.  This window presents a perfect time to do some deep professional reading, and these two interesting looking pieces on SSRN are going to the topic of my to-read pile:

The Ideological Basis of Punitive Sentiment: Beyond Instrumental and Relational Perspectives by Monica Gerber & Jonathan Jackson

Abstract: Why do people call for the tougher sentencing of criminal offenders? According to an instrumental perspective, punitiveness is driven by the experience of victimisation and fear of crime.  People are motivated to feel safe and secure, and they look to criminal sentencing to reduce the likelihood of future harm.  According to a relational perspective, punitiveness is driven by concerns about social decline and community breakdown. People are motivated to feel part of cohesive social groups, and retributive punishment symbolically restores moral boundaries and values.  Building on the work of Tyler and Boeckmann (1997) and King and Maruna (2009), we present evidence that instrumental and relational predictors each explain some variation in punitive sentiment.  But we also show that instrumental and relational concerns lose much of their explanatory power once we control for an authoritarian ideology.  We conclude with the argument that instrumental and relational concerns are bound up with punitive sentiment and right-wing authoritarianism in complex but as yet rather under-theorised ways in criminology.  Central to neo-Durkheimian attitudes towards punishment may be an authoritarian preference for tight, hierarchical social structures and related beliefs about a dangerous world that lacks cohesion.

Is it Finally Time to Put 'Proof Beyond a Reasonable Doubt' Out to Pasture?  by Larry Laudan

Abstract: This paper diagnoses several of the liabilities of proof beyond a reasonable doubt, including its subjectivity, its ambiguity, and its presumed universal applicability across all crimes and all defendants.  It argues further that the Supreme Court's repeated claims that this standard follows logically from an acknowledgement that false convictions are worse than false acquittals is an unsound inference.  Finally, it proposes that future discussions of the standard of proof should take place in an environment in which detailed empirical information about the error rates at trial should be the engine driving the re-formulation of the standard of proof.

In memoriam: Professor Bill Stuntz

I am saddened to learn from this post by Orin Kerr that Harvard Law Professor Bill Stuntz, whom Orin describes as "the leading criminal procedure scholar of his generation," passed away earlier this week after a long battle with cancer. I always learned a lot and re-thought a lot whenever reading Bill's extraordinary scholarship, and both the legal academy and those interested in criminal justice reform have lost a distinctive and important voice.

Here are just a few of the many important pieces by Bill that I consider must-reads for sentencing law and policy fans (and should remain so for quite some time):

• Unequal Justice, 121 Harv. L. Rev. 1969 (2008)
• Plea Bargaining and Criminal Law’s Disappearing Shadow, 117 Harv. L. Rev. 2548 (2004)
• The Pathological Politics of Criminal Law, 100 Mich. L. Rev. 505 (2001)
• The Uneasy Relationship Between Criminal Procedure and Criminal Justice, 107 Yale L.J. 1 (1997)

Two notable case notes in latest Harvard Law Review

The February 2011 issue of the Harvard Law Review includes brief notes on two significant federal circuit court rulings that have both gotten considerable attention on this blog:

Second Circuit Holds Within-Guidelines Child Pornography Sentence Procedurally and Substantively Unreasonable. — United States v. Dorvee, 616 F.3d 174 (2d Cir. 2010)

En Banc Seventh Circuit Holds Prohibition on Firearm Possession by Domestic Violence Misdemeanants to Be Constitutional. — United States v. Skoien, 614 F.3d 638 (7th Cir. 2010) (en banc)

Special issue of Criminology & Public Policy examines mass incarceration and targeted policing

I was pleased this weekend to discover that the February 2011 issue of Criminology & Public Policy is devoted to the idea that society would be well served to reallocate resources from mass incarceration to targeted policing.   Here is the start from the editor's introduction to the issue authored by Richard Rosenfeld:

Mass incarceration is the criminological issue of our time. A close contender is so-called hot-spots policing.  The former invites condemnation from most criminologists.  The latter inspires confidence that smart policing can reduce crime. In their provocative and important paper that is the focus of this special issue of Criminology & Public Policy, Steven Durlauf and Daniel Nagin (2011) bring the two issues together and propose that we might be able to achieve crime reductions by shortening prison sentences and using the cost savings to support more and better policing.  They rest their case squarely in a deterrence framework.  They argue that increasing the severity of punishment through marginal increases in the length of prison sentences has weak deterrent effects, at best; by the same logic, shortening prison sentences should not produce appreciable crime increases.  In contrast, increasing the perceived certainty of punishment can reduce crime without increasing imprisonment levels through targeted policing strategies that reduce criminal opportunities.  If the authors are right, this is a win-win strategy for crime control and criminal justice policy.

Durlauf and Nagin (2011) are careful to delimit scope of their analysis.  They do not examine the incapacitation effects of imprisonment or retribution as a goal of punishment.  They do not consider in any detail crime-reduction approaches that extend beyond the criminal justice system.  They acknowledge but do not thrash out the daunting political obstacles to shifting resources from state corrections budgets to local police departments.  They also acknowledge the limited, albeit promising, research base for the effectiveness of targeted enforcement and call for more and better research.  Nor do they claim originality for their assessment of the deterrent effects of imprisonment and policing.  The deterrence framework they invoke dates to Beccaria and Bentham.  Others have advocated smarter policing as a substitute for more incarceration (e.g., Weisburd, 2008).  Durlauf and Nagin’s (2011) contribution is to ground deterrence in the logic and methods of modern economics and draw out the research and policy implications of increasing the certainty and reducing the severity of punishment.  I believe they have succeeded admirably in achieving their objectives, especially if it is assumed that their overriding objective was to provoke thoughtful and informed discussion of their proposals by academic experts and policy professionals alike.  As former Attorney General Richard Thornburgh (2011) puts it in his reaction essay, Durlauf and Nagin’s analysis provides an ideal “jumping off point” for serious debate.

The 16 reaction essays in this issue are uniformly sympathetic to Durlauf and Nagin’s (2011) basic argument, even while many are critical of specific aspects of their evaluation of the deterrence literature and diagnosis of the trade-offs between reductions in imprisonment and enhancements in policing.  None proposes increasing incarceration or returning to policing as usual to promote public safety.  Yet most of the discussants would have liked the authors to deepen their analysis of the criminal justice system and extend their arguments beyond the stated objectives.

"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