The Declining Utility of the Right to Counsel in Federal Criminal Courts: An Empirical Study on the Role of Defense Attorney Advocacy Under the Sentencing Guidelines

Abstract

Much has been written about how the Federal Sentencing Guidelines have changed the role of judges, prosecutors and probation officers in federal criminal courts. This paper, based on empirical research, adds a relatively new chapter to that literature by examining some of the ways in which defense attorney advocacy has been altered under the Guidelines regime. The study involves forty subjects, all federal criminal defense attorneys, who discuss their practices and experiences as advocates in a system that deters and penalizes zealous representation by equating it with the defendant's failure to accept responsibility or impediment of justice. The attorneys also describe their decreasing bargaining power in a system that over-empowers their prosecutorial adversaries, and the effect that this has on their work as advocates. The empirical evidence suggests that lawyers may have redefined what it means to be a good advocate in the face of the perceived rigidity and severity of the Guidelines. They devote their energies to counseling their clients, guiding them through the criminal adjudication process, and combing the complex sentencing rules for exceptions that might apply to their clients. Their accounts reveal that the role of the defense lawyer, as well as the impact of the right to counsel, has changed fundamentally from the time of Gideon v. Wainwright and other cases that championed the right to counsel as a vital safeguard for the protection of individual rights and the integrity of the criminal justice system.