Friday, April 16, 2021
Legal scholarship tends to obscure how changes in criminal process relate to broader changes in society at large. This article offers a modest corrective to this tendency. By studying the Supreme Court’s right to counsel jurisprudence, as it has developed since the mid-70s, I show the pervasive impact of the concurrent rise of neoliberalism on relationships between defendants and their attorneys. Since 1975, the Court has emphasized two concerns in its rulings regarding the right to counsel: choice and autonomy. These, of course, are nominally good things for defendants to have. But by paying close attention to how the Court has defined and mobilized “choice” and “autonomy,” a more complex picture emerges. I argue the Court’s turn to choice mirrors one made by policymakers who, starting in the 1970s, embraced a new, neoliberal paradigm for public administration.
Under this new mode of neoliberal governance, the state cut investment in social welfare and promoted government regulations that afforded citizens the capacity to exercise choice in accessing increasingly limited public goods and entitlements. This approach, when applied to the court room, has produced troubling results. First, the range of choices accorded to defendants has been severely limited. Second, in practice, those choices have often lead defendants to inflict self-harm. Third, defendants have only been given the right to make choices free from interference; they are not granted a right to be well-equipped to make choices to their advantage. Indeed, the Court has simply ignored the social conditions that shape a person’s capacity to exercise meaningful, autonomous choice. The Court has disavowed any responsibility to defendants making choices about their representation in criminal court. This disavowal parallels one that has happened in society more broadly with the advance of neoliberalism: the federal government shrank social welfare, and abandoned those most likely to be criminalized. The Court and government’s systematic neglect has had grave consequences for defendants and their relationships with their attorneys. Ableism, poverty and racism undermine defendants’ ability to access justice and to collaborate with their attorneys. Instead of dismantling these barriers to equality, the Court has naturalized unequal, differential access, contingent on ability and class. It has entrenched the reality that outcomes in court will depend on these hierarchies. By increasingly focusing on the choices of individual defendants, the Court has shifted responsibility away from government to deliver due process in legal proceedings. In form and in impact, neoliberalism has transformed the right to counsel, one of the pillars of criminal procedure. This exposition suggests that when the rules of process produce suboptimal outcomes, any meaningful redress will likely lie far outside of the doors of criminal court.