Ringing the bell: The right to counsel and the Interest Convergence Dilemma.

• Author: Silva, Lahny R.

TABLE OF CONTENTS I. INTRODUCTION 133 II. JUDICIAL DECISION-MAKING AND THE INTEREST CONVERGENCE PARADIGM 137 A. Overview of Existing Models 138 B. Interest Convergence 140 1. The Theory 141 2. The Critique 144 3. Use of the Frame 147 III. CONVERGENCE: POWELL AND GIDEON 148 IV. RETRENCHMENT, DIVERGENCE, AND EFFECTIVE ASSISTANCE OF COUNSEL 155 V. CONVERGENCE AND THE PLEA BARGAINING TRILOGY 161 VI. CONCLUSION 167 I. INTRODUCTION

I tell my law students that we are gladiators. We slay injustices while protecting liberty. We battle other gladiators, incapacitate violent criminals, and watch over those without a voice. When the people ring the bell signaling the need to restructure the functions of institutions and practices, lawyers enter the arena ready for combat. In America, the inimitable skills of counsel are constitutionally recognized and celebrated. The Framers considered the right to counsel so critical to the republic that it is enshrined in the text of the Sixth Amendment. Whether majorities of the Supreme Court have held this right in such high esteem is debatable. The Court's jurisprudence has erratically expanded and restricted the right to counsel, leaving its scope far from certain.

Beginning in 1932 with Powell v. Alabama, (1) the U.S. Supreme Court has grappled with defining the constitutional contours of the right to counsel. While both Powell and Gideon v. Wainwright (2) spurred a hope that criminal justice--particularly in the South--would change, Strickland v. Washington (3) suppressed any existing optimism that such change would be meaningful. Nevertheless, recent cases such as Padilla v. Kentucky, (4) Missouri v. Frye, (5) and Lafler v. Cooper (6) have reinvigorated the discourse concerning the constitutional boundaries surrounding the Sixth Amendment guarantee, offering a hint that the Court may be redirecting its jurisprudence. These new cases not only present an opportunity to re-examine the substantive doctrine, but also to furnish an occasion to review and build upon existing theories of judicial decision-making.

In constructing theoretical frames used to evaluate judicial decision-making, scholars wrestle with opinions that do not rest on neutral constitutional principles but provide socio-politically acceptable outcomes. This phenomenon is constantly evaluated and rationalized in a myriad of ways, producing a rich literature that may be utilized to explain and resolve vital questions regarding the status of fundamental rights. This Article aims to add to this existing literature by analyzing judicial decision-making within the context of the right to counsel. While it is arguable that these cases rest on neutral principles, a closer examination reveals that the Court's fidelity to an underlying principle of equality is changeable, ebbs and flows, and may be influenced by considerations outside of doctrine--namely American political culture. Through the application of interest convergence theory, this Article hopes to explain the Court's fluctuating jurisprudence by identifying and examining eras of convergence and divergence through surveying the domestic and international climate at the time of a given decision.

"Interest convergence," a theoretical frame developed by the late Professor Derrick Bell, contends that the jurisprudential interests or "rights" of minority groups are only judicially recognized when they support the values and interests of the dominant group. (7) I argue that Professor Bell's theory, while intensely criticized, (8) provides a kernel of truth that may help competing sides in the justice system find a way to work together. Having roots in "rational choice" models of decision-making, Bell's theory posits that a confluence of interests determine judicial decisions. (9) For him, judges, traditionally members of the dominant group, bring values and interests into the judicial decision-making process. (10) In deciding cases, judges tend to issue decisions with an outcome that maintains the status quo, as well as language that mirrors the political culture, instead of offering a meaningful remedy that may disrupt the social order. (11) With doctrinal periods of expansion and retrenchment, the jurisprudential sway of the Court's "contradiction closing cases" concerning the right to counsel appear to reflect the political culture at the time the case was litigated. This Article will demonstrate the way in which external considerations may have influenced the Court with first recognition and expansion of the right to counsel in Powell and Gideon, the Court's subsequent restriction of the right in Strickland and Hill, (12) and the Court's slight expansion of the right in recent cases such as Padilla, Frye, and Lafler. In this Article, I argue that interest convergence helps explain the Court's trend on the issue of right to counsel. With the emphasis on seeing "the world as it is rather than how we might want it to be," the interest convergence paradigm may be a tool in addressing critical issues that continue to linger in American society by allowing for contemporary socio-political realities to enter the analysis.

In applying interest convergence, I do attempt to follow Bell's model of analysis in that I only provide a general overview of major occurrences and events, as opposed to offering a comprehensive evaluation of each specific external variable. The purpose of this Article is to utilize the frame to identify eras of convergence and divergence by highlighting many seminal cases, as opposed to analyzing one specific era or case.

I do not adopt the black-white binary paradigm of race. Instead, I propose that the two constituent groups consist of the "dominant" group and the "subordinate group." The dominant group comprises upper class and wealthy, primarily white, constituents with political capital and influence. The subordinate group includes the working poor and minority groups who lack political capital and influence. Who, or which group, should count as "dominant" or "subordinate" may vary somewhat according to the context or issue. Sometimes overall group wealth or group size is crucial, but in other contexts, the ability to organize efficiently at low cost may count more than sheer wealth or numbers of mere aggregates with less individually at stake. I do, however, recognize the differences inherent in grouping racially diverse interests in one category and also realize the limitations it may place on the receptivity of my thesis. Where appropriate, I do acknowledge and discuss the divisions within the subordinate group and potential causes. This, or any other binary, obviously sacrifices descriptive adequacy for the sake of a better combination of simplicity and explanatory power. However, in the quest to formulate a pragmatic analysis on the topic of right to counsel jurisprudence, I think it appropriate to cluster constituents that share a similar interest at a similar time in one category for this limited purpose.

In addition, the understanding of the "equality principle" in this Article differs from that of Bell. For Bell, the equality principle is manifested in the Equal Protection Clause of the Fourteenth Amendment, specifically guaranteeing racial equality. (13) The equality principle in this Article refers to a more basic and abstract notion of equality in the vein of John Rawls and Ronald Dworkin. (14) The cases reviewed below were primarily decided pursuant to the Sixth Amendment right to counsel, as opposed to Fourteenth Amendment equal protection, although there is some variation. (15) In Sixth Amendment jurisprudence, the notion of equality appears more fluid. It includes not only an equality of treatment under the law, but also an equality of opportunity. While it does include a racial equality component, the jurisprudence has evolved to discuss equality more in terms of opportunity and equality among the social classes. Equality also, at times, includes an element of fairness, making it difficult to separate the two substantive concepts. In analyzing the development of the constitutional right to counsel, the equality principle must be flexible enough to reflect an accurate doctrinal interpretation of the concept in the construction of the Sixth Amendment. For purposes of this Article, the equality principle is thus understood to encompass more than racial equality.

Part II provides a brief and basic overview of existing theoretical models of judicial decision-making and examines Bell's interest convergence theory in depth. This Part not only explains the interest convergence framework and "contradiction closing cases," but also reviews the application of this theory by other scholars in different contexts. Parts III to V examine eras of convergence and divergence throughout the development of right to counsel jurisprudence by employing the interest convergence frame. Cases chosen for study were selected based on prominence in political culture and doctrinal parallels. Through the evaluation of key U.S. Supreme Court cases, Part III aims to demonstrate that when the values and interests of the dominant group converge with those of the subordinate group, as in Powell and Gideon, civil liberties are theoretically extended, granting concessions to the subordinate group. However, when dominant interests diverge from those of the subordinate group, the interpretation of fundamental rights is constrained as manifested in Strickland and Hill. Part III reviews the decisions in Powell and Gideon, finding an era of convergence allying interests on the principle of equality. Part IV focuses on Strickland and Hill, uncovering a commonality between the decisions and the political culture: a retrenchment from the equality principle. Part V discusses Padilla, Frye, and Lafler, concluding that a confluence of factors, namely mass incarceration and a concern with the effectiveness of criminal justice administration, worked to align the...