CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Monday, April 1, 2013

Natapoff on Gideon Skepticism

Natapoff alexandraAlexandra Natapoff (Loyola Law School Los Angeles) has posted Gideon Skepticism (Washington & Lee Law Review, Forthcoming) on SSRN. Here is the abstract:

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.

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Exactly right. I'm getting tired of being made responsible for everything with little corresponding power.

Posted by: Gideon | Apr 2, 2013 7:47:27 AM

I generally agree with the professor as far as his comments go. Besides the inequities and vulgar court specticles, lack of financial resources for the defense impacts what we can do for clients. DNA has changed the game. The problem is that there are not the legal tools to do the job we know how to do so both the prosecutors and particularly the defense keep making stale compromises.

Experienced defense attorneys are being forced repeatedly to advise clients to "cut their losses" and take a plea where there are viable defenses. JF3

Posted by: john floyd | Apr 6, 2013 4:57:05 AM

As I wrote when notice of this article was posted at the Legal Ethics Forum:

While there's much of value in this article, it strikes me that the claim of distortions that come with belief in a "highly problematic legal fiction" is rather a strawman, indeed, it is clearly contradicted by subsequent mention of the ample criminal law scholarship available on "overbroad laws, racial selectivity in policing, prosecutorial overcharging, judicial hostility to defendants, or harsh mandatory punishments and collateral consequences." In short, I doubt the burden of "curative weight" putatively placed on defense counsel is as heavy or wide in scope as claimed here and that the importance of "other legal actors and institutions" has been well recognized in recent scholarship. Again, there's much of value in the article that does not require assent to the prevalence of "a highly problematic legal fiction" to appreciate same.

Posted by: Patrick S. O'Donnell | Apr 6, 2013 3:28:49 PM

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