Four Reforms for the Twenty-First Century

Author:Scheck, Barry

This article presents the author's top four suggestions for judicial action and advocacy that can result in urgently needed and readily achievable reforms. As the American Judicature Society (AJS) and its members consider its agenda and mission for the coming years, each of these issues deserves support. Strong indigent defense doesn't just provide assurance the innocent are protected and abuses... (see full summary)


It is a considerable challenge, a distinct privilege, and no doubt a fool's errand to survey the past one hundred years in the field of criminal justice with the purpose of identifying trends and key issues that will critically challenge jurists who are concerned with reforming the system. 1 cannot pretend to possess a legal historian's breadth of knowledge and remain a prisoner of my own professional and personal experience. That experience instructs, above all else, to be wary of observer bias. So it's best to make important aspects of that experience manifest from the beginning and warn that the views expressed here are entirely my own and should not be taken as the official position of any organization with which I am associated.

I began practicing criminal law in 1975 as a Legal Aid lawyer (public defender) in the South Bronx, inspired by the civil rights movement and the landmark criminal justice rulings of the Warren Court. At that time, New York City was experiencing a financial crisis: The Association of Legal Aid Attorneys had formed a union and was striking to assure that lawyers had access to telephones, office space, vertical representation (the right to represent clients from arrest to disposition), and that some limitations were put on caseloads, which were spiraling out of control. The process of "early case assessment" had just begun-screening by a bureau of district attorneys of the initial statements from officers and witnesses, case severity (breaking down nonviolent felonies to misdemeanors), and case strength. This was just the first salvo in a trend over the next three decades that shifted initial access to information and assessment of cases for purposes of early plea bargaining and setting of bail away from judges and into a domain more exclusively supervised by prosecutors. The crack cocaine epidemic was nascent and the movement towards determinant sentencing and mandatory minimums was taking hold, again signaling the coming shift in the power over sentencing away from judges to prosecutors. Charles E. Silberman's sweeping and insightful overview of the system in 1980, Criminal Violence, Criminal Justice,1 perfectly captured the era and holds up to this day.

By the time I began teaching law, practicing in federal courts, and helping construct in-house clinical programs that trained both prosecutors and defense attorneys (1979), I was inhabiting a world without federal sentencing guidelines, cell phones, personal computers, or the internet, much less DNA technology, sophisticated neuroimaging, or the crunching of "big data." 1 have been fortunate to have a diverse practice and participated in heavily publicized proceedings including civil rights suits against both police departments and prosecutors. I have defended clients, in state and federal court, at trials and on appeal, who were accused of a myriad of crimes.2 Perhaps most important of all, for the past 24 years, I have been lucky enough to be part of the "innocence movement" and to work intimately with a collection of lawyers (defense and prosecution), judges, scholars, and scientists who have litigated, adjudicated, and studied an unprecedented wave of "exonerations" based on DNA tests and other new evidence of innocence.

So having quickly summarized my experience and potential observational bias, what follows are my top four suggestions for judicial action and advocacy that can result in urgently needed and readily achievable reforms. As the American Judicature Society and its members consider its agenda and mission for the coming years, each of these issues deserves support.

Lead on Indigent Defense Reform

In this 50th anniversary year of the Gideon3 decision, there is no area of criminal justice reform that has made less progress over the last century or is more significant for improving the system than the right to counsel. Without adequate counsel for the poor one cannot even begin to effectuate meaningful solutions to the debilitating problems posed by mass incarceration, over-criminalization, and racial bias. "Problemsolving courts," whether targeting drugs, juveniles, family violence, or communities, work best when there are quality defense teams (not just lawyers, but investigators, paralegals, and social workers) who can counsel clients and their families "holistically." Strong indigent defense does not just provide assurance the innocent are protected and abuses by the state are exposed, but holds families together, helps addicts stay sober, keeps young offenders in school, facilitates re-entry from prison, and supports public safety in communities.4 Viewed from this perspective, indigent defense reform is a cause that should, and still can, garner bipartisan political support and appeal across class and racial divides.

But indigent defense remains the neglected stepchild of the criminal justice system.5 It lacks a natural base, a core constituency with legislative influence-poor people charged with crimes, often disenfranchised by criminal convictions, and disproportionately from racial minorities, have limited political power in the first place. And there is a vicious cycle at work as well-the worse the representation of institutional defenders and court-appointed counsel, the less the community wants to rally for a larger defender budget or higher counsel fees. Nothing erodes respect for our criminal justice system more than the widespread conventional wisdom that one is better off being rich, white, and guilty than poor, black or brown, and innocent.

As David Cole has pointed out, "[a]t least every five years since Gideon was decided, a major study has been released finding that indigent defense is inadequate."6 There are good reasons, however, on this 50th anniversary of Gideon to see this ongoing crisis in funding adequate indigent defense as reaching a qualitatively different breaking point. One reason is the phenomenon of "mass incarceration" in the United States. As we approach a million new felony convictions per year, it must be emphasized that without anything close to a corresponding allocation of resources to the indigent defense function, there has been a six-fold increase in incarceration rates over the past 30 years, going from 100 to almost 700 incarcerated persons per 100,000 people, "a percentage unprecedented in American history and among industrialized nations."7

A second reason is growing recognition that while innocent people do plead guilty to felonies, the innocent confess in much greater numbers to misdemeanors8 without the benefit of counsel who are funded to conduct independent investigations, if they get counsel.9 There has always been a tendency toward "the process being the punishment" in misdemeanor courts10-pleas of time served for those who cannot make bail or who come back to court numerous times to get a trial on the merits-but with the advent of "broken windows" policing policies the number of misdemeanor prosecutions has dramatically risen.11 "It is time," Gerald Kogan, former Chief Justice of the Florida Supreme Court recently observed, "to end the wasteful and harmful practices that have turned our misdemeanor courts into mindless conviction mills."12

Steve Hanlon, for many years a partner at Holland & Knight and current chair of the ABA's Defense Advisory Group to the Standing Committee on Indigent Defense and Legal Aid, summarizes the situation with empathy for all, but with unvarnished realism:

Despite the heroic, indeed Sisyphean efforts of individual public defenders, the harsh truth is that every day in thousands of courtrooms across this nation, public defenders "meet 'em and plead 'em," spending precious few minutes with their clients, as their offices triage cases by shifting resources to higher-risk cases (e.g., homicides and sex offenses). And every day in thousands of courtrooms throughout this nation, prosecutors secure uncounseled waivers of counsel and uncounseled guilty pleas from criminal defendants with little education or understanding about the criminal justice system, especially the devastating collateral effects of those very guilty pleas.

Indeed, a compelling argument could be made that the principal function of all of the players in the criminal justice system with respect to the invariably poor and largely black and brown population appearing before them is to serve as a facilitator for the mass over-incarceration of a nation that now incarcerates a greater proportion of its population than any other nation in the world.

This sad state of affairs is or should be well known to all of our courts, especially our state supreme courts, most of them charged under their state constitutions with a power of general superintendence or equivalent responsibility over the entire justice system in their states.

This is the legacy of our generation of judges, lawyers, governors, and legislators, like it or not. This happened on our watch. Our grandchildren will undoubtedly ask us how and why this happened.13

The judiciary has a special responsibility to ensure indigent defense systems are truly functional. That responsibility can no longer be deferred or abdicated on separation-of-powers grounds, as has so often happened over the past two decades, in adjudicating "systemic ineffectiveness" litigation. On the contrary, as Martin Guggenheim has recently argued, the crisis has reached a point where separation-of-powers considerations compel the opposite result.14 When indigent defense funding is so inadequate that lawyers cannot even conduct investigations of cases on a regular basis, the executive branch accumulates too much unchecked power to prosecute and to influence the outcomes on grounds other than the merits, and, as a consequence, the judicial branch is denied its duty to decide cases independently. This argument views the Sixth Amendment's right to counsel as a "structural protection" for everyone's rights, including those never prosecuted or arrested.15

This formulation...

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