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March 29, 2013

"Gideon Skepticism"

The title of this post is the title of this notable new piece on SSRN by Alexandra Natapoff. It provides a provocative perspective in a month that has included lots of Gideon celebrations now that the decision is 50 years old.  Here is the abstract:

The criminal defense lawyer occupies a special doctrinal place in criminal procedure. It is the primary structural guarantor of fairness, the single most important source of validation for individual convictions. Conversely, if a person did have a competent lawyer, that generates a set of presumptions that his trial was in fact fair, the evidence sufficient, and his plea knowing and voluntary. This is a highly problematic legal fiction. The presence of counsel advances but cannot guarantee fair trials and voluntary pleas. More fundamentally, a lawyer in an individual case will often be powerless to address a wide variety of systemic injustices.

A defendant may be the victim of overbroad laws, racial selectivity in policing, prosecutorial overcharging, judicial hostility to defendants, or harsh mandatory punishments and collateral consequences, none of which his lawyer can meaningfully do anything about. In response to these limitations, criminal scholarship offers a variety of skeptical counter-narratives about the ability of defense counsel to police the accuracy and fairness of their clients’ guilty pleas and sentences.  Such skepticism is particularly appropriate in the misdemeanor context, in which millions of cases are created and rushed through an assembly-line process without much evidence or scrutiny.

In this world, the presence or absence of counsel is just one piece of a much larger puzzle of systemic dysfunction.  Accordingly, while the right to counsel remains an important ingredient in fair trials and legitimate convictions, it cannot bear the curative weight it has been assigned in the modern era of overcriminalization and mass judicial processing. Other legal actors and institutions should share more responsibility for protecting defendants, a responsibility that now rests almost entirely and unrealistically on the shoulders of defense counsel.

March 29, 2013 at 06:42 PM | Permalink


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Lawyers may have started with decent native intelligence and good college educations. After law school, they believe in supernatural central legal doctrines. They are made the stupidest of people with advance degrees intentionally, so the criminal cult hierarchy can easily control them.

Posted by: Supremacy Claus | Mar 30, 2013 7:43:09 AM

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