Loyola Law School Los Angeles
March 19, 2013
Washington & Lee Law Review, Forthcoming
Loyola-LA Legal Studies Paper No. 2013-15
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.
Number of Pages in PDF File: 40Accepted Paper Series
Date posted: March 23, 2013
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