Trying Not to Be Like Sisyphus: Can Defense Counsel Overcome Pervasive Status Quo Bias in the Criminal Justice System?

73 Pages Posted: 5 Mar 2013

See all articles by Andrew E. Taslitz

Andrew E. Taslitz

American University - Washington College of Law

Date Written: February 28, 2013

Abstract

This article draws on cognitive and political science literature on the "status quo bias." The paper argues that prosecutors and even judges are in the grip of this bias and that one primary but under-appreciated function of defense counsel is to counteract that bias. Properly-resourced and trained defense counsel can therefore contribute to fostering the appropriate balance between stability and change in the criminal justice system. This article was written for a symposium on the Sixth Amendment right to counsel and makes concrete suggestions for how defense counsel can counteract the cognitive appeal of the status quo.

Keywords: defense counsel, counsel, prosecutors, judges, right to counsel, Sixth Amendment, status quo, cognitive biases, system justification theory, winners, losers, conservatives, liberals, just world, narrative theory, attribution, availability bias, representativeness bias, naive realism, threat

JEL Classification: K00, K14, Z00, Z10

Suggested Citation

Taslitz, Andrew E., Trying Not to Be Like Sisyphus: Can Defense Counsel Overcome Pervasive Status Quo Bias in the Criminal Justice System? (February 28, 2013). Available at SSRN: https://ssrn.com/abstract=2226664 or http://dx.doi.org/10.2139/ssrn.2226664

Andrew E. Taslitz (Contact Author)

American University - Washington College of Law ( email )

4300 Nebraska Avenue, NW
Washington, DC 20016
United States

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