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April 10, 2012

"Beyond 'Life and Liberty': The Evolving Right to Counsel"

The title of this post is the title of this new piece by John Derek King now available via SSRN. Here is the abstract:

The majority of Americans, if they have contact with the criminal justice system at all, will experience it through misdemeanor courtrooms.  More than ever before, the criminal justice system is used to sort, justify, and reify a separate underclass.  And as the system of misdemeanor adjudication continues to be flooded with new cases, the value that is exalted over all others is efficiency.  The result is a system that can make it virtually painless to plead guilty (which has always been true for low-level offenses), but that is now overlaid with a new system of increasingly harsh collateral consequences.  The hidden consequences of a conviction may never be explained to the person choosing to plead guilty, leading to unjust results that happen more regularly and with more severe consequences than ever before.

This Article argues that current Sixth Amendment jurisprudence on the right to counsel has not adequately adapted to the changed realities within which misdemeanor prosecutions take place today.  Because of the dramatic changes in the cultural meaning and real-life consequences of low-level convictions, there is no longer a useful or constitutionally significant line between those cases resulting in actual imprisonment and those cases not resulting in imprisonment.  Two years ago in Padilla v. Kentucky, the Supreme Court recognized that the line between the direct and collateral consequences of a conviction has no constitutional significance in defining the effective assistance of counsel.  Recognizing that the Sixth Amendment right to counsel has evolved throughout its history to accommodate the changing cultural context of criminal prosecutions, this Article calls for a robust expansion of the right to counsel in all criminal cases.

April 10, 2012 at 11:19 PM | Permalink


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Shouldn't we look at where the system is broken rather than reinterpret the Constitution into contortions. I agree with the basic point of the article but I don't like the solution. The better solution is to just go back to making misdemeanors be misdemeanors, rather than a felony by another name.

Posted by: Daniel | Apr 11, 2012 12:57:32 AM

now of course when you all read it. didn't you say NO KIDDIDNG! Never would ahve known if you hadn't said something!

next and more important. I notice comments are in the toilet number wise....captcha anyone!


Posted by: rodsmith | Apr 11, 2012 1:25:36 AM

Collateral consequences should visit the lawyer profession. So, there is a problem with the character portion of the plumbing license because of a fishing without a license guilty plea 10 years before. Kick the ass of a judge, of the lawyer in your legislature. To deter.

Posted by: Supremacy Claus | Apr 11, 2012 3:27:25 AM

A collateral consequence

Hooker_X with no prior record is charged with a »thou shalt not« coitus offense , but has a valid defense to avoid a conviction for this misdemeanor .

Pimp needs her out of jail and on street .

A no jail , guilty or no contest plea , is entered and she is fined .

Fast forward to later .

Hooker_A with a prior record is charged with a »thou shalt not« coitus offense , but has NO valid defense to avoid a conviction for felony (offense class higher due to prior conviction) .

Posted by: Docile Jim Brady ¦ Nemo Me Impune Lacessit | Apr 11, 2012 5:37:18 AM

Collateral consequences should be relevant to the crime. So deportation after jumping a subway turnstile is not fair. Not being able to get a permit to carry a gun after a conviction of a violent crime is fair.

If the Supreme Court refuses to acknowledge the self-evident, that these are additional punishments subject to Eighth Amendment limits, so be it. If these are regulations, they are regulatory takings subject to Fifth Amendment procedural due process limits. If they are not regulatory takings, they violate policy considerations. Do we want to deprive a person of a license for livelihood and ability to pay high taxes based on a trivial gotcha such as fishing without a license, for which he paid his debt to society in the form of a fine? Why the defense bar has not attacked these self-evident weaknesses can only be explained by their rent seeking tendencies and disloyalty to the client.

Posted by: Supremacy Claus | Apr 11, 2012 6:49:25 AM

With unemployment continuing at historically high levels for a "recovery," it was only a matter of time before lawyers started pitching to multiply their (almost always) taxpayer-financed jobs.

Posted by: Bill Otis | Apr 11, 2012 6:22:19 PM

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