William and Mary Bill of Rights Journal, May 1, 2016
Massachusetts, 3 the Court retreated, offering courts, legislatures, and prosecutors an easy way ... more Massachusetts, 3 the Court retreated, offering courts, legislatures, and prosecutors an easy way to avoid confrontation-laden trials. On the one hand, the Court warned that legislatures and courts could not "suspend the Confrontation Clause," even if there were "other ways-and in some cases better ways-to challenge or verify" the prosecution's evidence. 4 On the other hand, the Court declared that states were "free to adopt procedural rules" that require a defendant to demand, or forfeit by inaction, the protections of the Confrontation Clause. 5 As a result, despite Crawford's promise, legislatures continue to minimize, or eliminate, the prosecution's burden of producing its testimonial witnesses. This Article explores and critiques the Supreme Court's puzzling productionminimizing approach to the Confrontation Clause. It does so, in part, by analyzing the Court's ambivalence about the value of production as an ongoing battle over constitutional costs. This battle pits the enforcement of constitutional structure against the management of criminal justice costs. Of course, positing a conflict between constitutional structure and constitutional cost is itself a false dichotomy, one that fundamentally misunderstands the architecture of adversarial criminal procedure. Nevertheless, between 1965 and 2004, the Supreme Court embraced that dichotomy and a resultant jurisprudence of costs drove the Court's confrontation jurisprudence. Under this pre-Crawford jurisprudence, the Supreme Court held that the Confrontation Clause did not bar the admission of an out-of-court statement if it fell within a firmly rooted exception to the hearsay rule. 6 Since 2004, the Court claims to have rejected a cost-centric jurisprudence. Crawford held that "[t]estimonial statements of witnesses absent from trial [can be] admitted only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine." 7 Crawford claimed to have restored confrontation as a rule of production: the Confrontation Clause "commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination." 8 Confrontation's costs, however, still preoccupy the Court; the Court simply sells that old, cost-conscious wine in new, Crawford-approved bottles. The result has been a withered confrontation jurisprudence that undermines the Confrontation Clause and the core structural premises of constitutional criminal procedure. Because the Confrontation Clause's production mandate has been all but forgotten by the Court and most scholars, Part I describes the Confrontation Clause's burden of production. Critically, before the Confrontation Clause bestows any rights upon the accused, it burdens the prosecution by requiring it to produce its witnesses
Most Americans expect that if they are arrested, they will quickly appear before a judge, learn a... more Most Americans expect that if they are arrested, they will quickly appear before a judge, learn about the charges, and have an attorney assigned to defend them. The reality is vastly different. After arrest, a person can wait in jail for days, weeks, or even months before seeing a judge or meeting an attorney. This report chronicles the resulting initial appearance crisis and highlights its devastating consequences. More importantly, it provides policymakers and advocates with actionable recommendations.
Massachusetts, 3 the Court retreated, offering courts, legislatures, and prosecutors an easy way ... more Massachusetts, 3 the Court retreated, offering courts, legislatures, and prosecutors an easy way to avoid confrontation-laden trials. On the one hand, the Court warned that legislatures and courts could not "suspend the Confrontation Clause," even if there were "other ways-and in some cases better ways-to challenge or verify" the prosecution's evidence. 4 On the other hand, the Court declared that states were "free to adopt procedural rules" that require a defendant to demand, or forfeit by inaction, the protections of the Confrontation Clause. 5 As a result, despite Crawford's promise, legislatures continue to minimize, or eliminate, the prosecution's burden of producing its testimonial witnesses. This Article explores and critiques the Supreme Court's puzzling productionminimizing approach to the Confrontation Clause. It does so, in part, by analyzing the Court's ambivalence about the value of production as an ongoing battle over constitutional costs. This battle pits the enforcement of constitutional structure against the management of criminal justice costs. Of course, positing a conflict between constitutional structure and constitutional cost is itself a false dichotomy, one that fundamentally misunderstands the architecture of adversarial criminal procedure. Nevertheless, between 1965 and 2004, the Supreme Court embraced that dichotomy and a resultant jurisprudence of costs drove the Court's confrontation jurisprudence. Under this pre-Crawford jurisprudence, the Supreme Court held that the Confrontation Clause did not bar the admission of an out-of-court statement if it fell within a firmly rooted exception to the hearsay rule. 6 Since 2004, the Court claims to have rejected a cost-centric jurisprudence. Crawford held that "[t]estimonial statements of witnesses absent from trial [can be] admitted only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine." 7 Crawford claimed to have restored confrontation as a rule of production: the Confrontation Clause "commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination." 8 Confrontation's costs, however, still preoccupy the Court; the Court simply sells that old, cost-conscious wine in new, Crawford-approved bottles. The result has been a withered confrontation jurisprudence that undermines the Confrontation Clause and the core structural premises of constitutional criminal procedure. Because the Confrontation Clause's production mandate has been all but forgotten by the Court and most scholars, Part I describes the Confrontation Clause's burden of production. Critically, before the Confrontation Clause bestows any rights upon the accused, it burdens the prosecution by requiring it to produce its witnesses
Fifty years ago Gideon promised that an attorney would vindicate the constitutional rights of any... more Fifty years ago Gideon promised that an attorney would vindicate the constitutional rights of any accused too poor to afford an attorney. But Gideon also promised more. Writ small, Gideon promised to protect individual defendants; writ large, Gideon promised to protect our system of constitutional criminal procedure. Much has been written about Gideon's broken promise to our poor; this Essay is about Gideon's broken promise to our system. With its army of zealous public defenders, Gideon should have produced litigation that vigorously protected the core structures of our adversary trial system. Instead, courts have converted Gideon representation into a Gideon defendant's de facto relinquishment of important Sixth Amendment rights. As a result, counsel-not client-controls the invocation and exercise of the adversary procedures. And, even as to those Sixth Amendment rights still within a defendant's exclusive control, Strickland eviscerates a defendant's capacity to seek redress when counsel precludes the exercise of a fundamental right. As a result, Gideon has increasingly become an enforcer of the status quo-a cog in the systemic machine that grinds continually toward under-enforcement of Sixth Amendment adversary rights. author. Associate Professor of Law, Tulane University Law School. The author gratefully acknowledges the research support of Tulane Law School. The author also wishes to thank Professors Jancy Hoeffel, Joe Thorp, and Keith Werhan for their extraordinary assistance. fear of adversariness 2551 essay contents introduction i. the regulation of defendant-driven adversariness through gideon and strickland A. The Court's General Preference for Nonadversarial Case Resolution B. The Court's Efforts To Regulate Defendant-Driven Adversariness at Trial ii. direct regulation of defendant adversariness over the sixth amendment A. Direct Regulation: Relying on Counsel To Constrain the Invocation of "Tactical" Sixth Amendment Rights B. The Judicial Reliance on Gideon To Justify Direct Regulation of Defendants' Control over "Tactical" Sixth Amendment Rights iii. indirectly regulating defendant-driven adversariness by applying strickland to deprivations of fundamental rights iv. some observations about the consequences of regulating defendant-driven adversariness A. Gideon-Agency and Strickland Analysis Skew Behavior by Institutional Participants in the Criminal Justice System 1. Skewing the Behavior of Lawyers and Professional Witnesses 2. Skewing Judicial Behavior 3. Minimizing the Significance of Appellate Opinions B. Gideon-Agency and Strickland Review Produce Perverse Outcomes conclusion the yale law journal
In 2019, police across Dallas County asked the District Attorney to prosecute fewer marijuana cas... more In 2019, police across Dallas County asked the District Attorney to prosecute fewer marijuana cases than the year before. This report examines whether the racial disparity in those cases improved at the same time. Fewer, Not Fairer shows that while the number of referrals declined, police were still more likely to refer a Black person for marijuana prosecution than a non-Black person. However, some cities achieved more fairness when their police departments almost entirely stopped requesting marijuana prosecutions altogether.
The United States Constitution guarantees every accused person a fair and speedy criminal process... more The United States Constitution guarantees every accused person a fair and speedy criminal process with the assistance of counsel. Yet, people across the country are arrested and held behind bars for days, weeks, and even months before they go to court or meet a lawyer. These injustices reflect an initial appearance crisis in our criminal legal system. What is an initial appearance? An initial appearance is the first time an arrested person sees a judicial officer about their case. At an initial appearance, the judicial officer should inform a person of the charges against them and assess whether, and under what conditions, the person may be released from jail pending trial. 1 Legal representation is vital at initial appearance. A lawyer can ensure that a person understands the proceedings. They can also present evidence and arguments in support of pretrial release. Studies show that having counsel at initial appearance significantly reduces a person's likelihood of being detained. 2 A prompt initial court appearance, with the assistance of counsel, is essential to fulfilling the Constitution's promises because it: Charles Koch Foundation for their generous support of this project.
Across the United States, hundreds of thousands of uncharged defendants sit behind bars without f... more Across the United States, hundreds of thousands of uncharged defendants sit behind bars without formal charges having been filed against them. This wholesale detention of uncharged criminal suspects is a “recurring part of the state sanctioned prosecutorial system.” This pre-charge detention is based solely the unchallenged allegations of a law enforcement officer. Only when a prosecutor “screens” the case formalizing or dismissing the charges, can the accused begin to defend himself or return to his pre-incarceration life.How are these lengthy uncharged detentions possible? The answer lies in the Supreme Court’s wholesale failure to regulate pre-charge criminal process. The United States Supreme Court provides more procedural protection against the wrongful “custody of a refrigerator, . . . temporary suspension of a public school student, or . . . suspension of a driver’s license,” than it does against the incarceration of an uncharged, presumptively innocent person. Uncharged pretrial defendants have no constitutional right to a prompt decision about whether the prosecution will charge them; no constitutional right to the assistance of counsel at bail proceedings; no constitutional right to investigation, discovery, or Brady material; and no constitutional right to an adversarial judicial review of the evidence used to restrain their liberty. Uncharged detainees have little, if any, due process, recourse against their Kafkaesque plight. In other contexts, the United States Supreme Court relies on the Due Process Clause to forbid, or to closely regulate, the state’s ability to incarcerate innocent people. Yet, the Supreme Court has adopted a restrictive approach to criminal due process; that approach deprives uncharged defendants of any meaningful protection against their long detention. Because the Supreme Court has applied radically different Due Process standards to criminal and civil proceedings, uncharged – and often unrepresented detainees – must rely upon the ineffectual Speedy Trial Clause, the under-enforced Eighth Amendment, and the dubious good graces of state prosecutors, to prevent their prolonged incarceration without prosecution. This reliance has proved a dismal failure.This Article explores and critiques this appalling state of affairs. Part I describes the plight of uncharged, incarcerated, criminal detainees. Part II makes the Article’s central claim: that unregulated detention-without-charges violates substantive and procedural due process. Part III makes the case for a unified approach to substantive and procedural due process. The Article concludes with some observations about the systemic impacts of a due process approach to pre-charge criminal process.
NORTHWESTERN UNIVERSITY LAW REVIEW to the layperson's need for assistance of counsel in court pro... more NORTHWESTERN UNIVERSITY LAW REVIEW to the layperson's need for assistance of counsel in court proceedings.' Rather, during the mid to late 1700's, English law forbade the assistance of counsel in nearly all criminal cases.' The law required each defendant "to appear before the court in his own person and conduct his own cause in his own words." 6 Scholars and historians offer various explanations of this prohibition on counsel. 7 Some point out that criminal prosecutions were initiated by private parties, who represented themselves; accordingly, selfrepresentation by defendants was not thought to be unfair.' Others suggest that a 'level playing field' was enforced by a neutral judge who "viewed indictors, prosecutors, jury, and prisoner with impartial distrust." 9 Still others suggest that the English government banned counsel because the monarchy was too weak and too unstable to risk the possibility that defense counsel would achieve the acquittal of accused felons." In contrast, the colonists rejected the English "private party" prosecutions and adopted a strong public prosecutor system. In that system, a professional prosecutor confronted the private citizen. The colonial prosecutor knew the law, the jury system, and the judge more intimately than could any individual defendant. This gave the prosecutor an unfair advantage that colonial lawmakers could not justify." The American impulse to determine legal rights by reference to the "settled usages and modes of proceeding" of English law gave way to the realities of an American society that demanded different protections. 2 Although the early American counsel guarantee was 4 Powell v. Alabama, 287 U.S. 45, 60 (1932) (stating that "[i]f recognition of the right of a defendant.., to have the aid of counsel depended upon the existence of a similar right at common law as it existed in England when our Constitution was adopted," the right to counsel could not be justified as a necessary component of due process), 5 Faretta v. California, 422 U.S. 806, 823 (1974). 6 Id. (quoting 1 POLLACK & MAITLAND, THE HISTORY OF ENGLISH LAW 211 (2d ed. 1909)). The sole exceptions were at the outer edges of criminal procedure-counsel was permitted both in misdomeanor and treason cases. Scholars have posited that this distinction arose precisely because those accused of misdemeanors and treason were prosecuted by England's only public prosecutor-the Crown. This ban on counsel in felony cases persisted until 1836 when Parliament gave criminal defendants the right to appear through counsel.
This policy brief de nes a county as "rural" if it has a classi cation of 5-9 under the U.S. Depa... more This policy brief de nes a county as "rural" if it has a classi cation of 5-9 under the U.S. Department of Agriculture's Rural-Urban Continuum Codes (RUCC). 14 Similarly, this policy brief characterizes an attorney as "rural" if they list a primary practice address in a rural county. 15 Of course, county populations alone cannot fully capture what makes a legal system "rural." A more precise de nition of rural criminal practice would consider such factors as case density, geographic isolation, and attorney scarcity. Rural-Urban Continuum Codes (RUCC) More Rural
Across the United States, thousands of newly arrested people disappear. They languish behind bars... more Across the United States, thousands of newly arrested people disappear. They languish behind bars for days, weeks, or even months without ever seeing a judge or an attorney. Yet, the Supreme Court requires more constitutional process for the seizure "of a refrigerator, the temporary suspension of a public school student, or the suspension of a driver's license," than it does for a person who has just been arrested. 1 A new arrestee has no clearly established constitutional right to a prompt initial appearance procedure. As a result, there is no constitutional doctrine that guarantees her the right to appear promptly before a judge, to challenge the evidence that supports her arrest, to receive the prompt assistance of counsel, or to participate in an adversarial bail hearing. Amidst our national conversation about the need for criminal justice reform, this Article is the first scholarly work to address the initial appearance crisis. Part I of the Article describes the epidemic of detention-without-process that plagues our criminal justice system. Part II explores the legal landscape that produced this crisis. It describes the Supreme Court's commitment to a narrow Fourth Amendment jurisprudence and critiques the Court's rejection of early-stage criminal due process rights. Part III marshals substantive and procedural due process doctrines that can vindicate the constitutional right to a prompt and thorough initial appearance procedure. Part IV proposes an agenda for research and reform of early-stage criminal proceedings.
ABSTRACT It is black letter constitutional law: To prove a criminal offense, the prosecution must... more ABSTRACT It is black letter constitutional law: To prove a criminal offense, the prosecution must prove every element of the offense, by proof beyond a reasonable doubt, and the constitution entitles a defendant to confront and cross-examine all witnesses against him. Yet, for the past thirty years, state legislatures have quietly approved laws that cheat the constitution. By that, I mean that these laws fly, undetected, beneath the constitutional radar while violating fundamental constitutional rights. Although other constitutional cheats abound, in this article I consider one archetypical cheat: statutes that permit state prosecutors to use hearsay state crime laboratory reports, in lieu of live witness testimony, to prove essential elements of a criminal case. These statutes convert the allegations of an uncross-examined state witness into proof beyond a reasonable doubt. I call these forensic proof statutes forensic ipse dixit statutes, because "a bare assertion resting on the authority of an individual" becomes, ipse dixit, an adjudicated fact. The forensic ipse dixit statutes deprive defendants of the right to confrontation and relieve the government of its burden of proof. Along the way, these statutes discourage vigorous defense advocacy, promote carelessness and fraud in crime laboratories, and increase the likelihood of wrongful convictions and sentences. In Section I of this article, I provide an overview of the nationwide forensic ipse dixit phenomenon. In Section II, I address the unwarranted presumption of reliability that legislatures and courts often accord to forensic reports. In Sections III and IV, respectively, I discuss how the forensic ipse dixit statutes violate the Confrontation and Due Process clauses of the United States Constitution. In Section V, I offer observations about what constitutional cheating reveals about our criminal justice system.
Public defender offices serve a crucial public interest, but they are uniquely prone to a number ... more Public defender offices serve a crucial public interest, but they are uniquely prone to a number of conflicts of interest. Clients indicted together may have adverse interests but few other options for defense counsel. Every state structures its public defender offices differently; in some states, public funding regulations may incentivize high client volume over quality counsel. The panelists have extensive experience in state and federal public defender offices and are also leading scholars on the unique conflicts those offices face
William and Mary Bill of Rights Journal, May 1, 2016
Massachusetts, 3 the Court retreated, offering courts, legislatures, and prosecutors an easy way ... more Massachusetts, 3 the Court retreated, offering courts, legislatures, and prosecutors an easy way to avoid confrontation-laden trials. On the one hand, the Court warned that legislatures and courts could not "suspend the Confrontation Clause," even if there were "other ways-and in some cases better ways-to challenge or verify" the prosecution's evidence. 4 On the other hand, the Court declared that states were "free to adopt procedural rules" that require a defendant to demand, or forfeit by inaction, the protections of the Confrontation Clause. 5 As a result, despite Crawford's promise, legislatures continue to minimize, or eliminate, the prosecution's burden of producing its testimonial witnesses. This Article explores and critiques the Supreme Court's puzzling productionminimizing approach to the Confrontation Clause. It does so, in part, by analyzing the Court's ambivalence about the value of production as an ongoing battle over constitutional costs. This battle pits the enforcement of constitutional structure against the management of criminal justice costs. Of course, positing a conflict between constitutional structure and constitutional cost is itself a false dichotomy, one that fundamentally misunderstands the architecture of adversarial criminal procedure. Nevertheless, between 1965 and 2004, the Supreme Court embraced that dichotomy and a resultant jurisprudence of costs drove the Court's confrontation jurisprudence. Under this pre-Crawford jurisprudence, the Supreme Court held that the Confrontation Clause did not bar the admission of an out-of-court statement if it fell within a firmly rooted exception to the hearsay rule. 6 Since 2004, the Court claims to have rejected a cost-centric jurisprudence. Crawford held that "[t]estimonial statements of witnesses absent from trial [can be] admitted only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine." 7 Crawford claimed to have restored confrontation as a rule of production: the Confrontation Clause "commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination." 8 Confrontation's costs, however, still preoccupy the Court; the Court simply sells that old, cost-conscious wine in new, Crawford-approved bottles. The result has been a withered confrontation jurisprudence that undermines the Confrontation Clause and the core structural premises of constitutional criminal procedure. Because the Confrontation Clause's production mandate has been all but forgotten by the Court and most scholars, Part I describes the Confrontation Clause's burden of production. Critically, before the Confrontation Clause bestows any rights upon the accused, it burdens the prosecution by requiring it to produce its witnesses
Most Americans expect that if they are arrested, they will quickly appear before a judge, learn a... more Most Americans expect that if they are arrested, they will quickly appear before a judge, learn about the charges, and have an attorney assigned to defend them. The reality is vastly different. After arrest, a person can wait in jail for days, weeks, or even months before seeing a judge or meeting an attorney. This report chronicles the resulting initial appearance crisis and highlights its devastating consequences. More importantly, it provides policymakers and advocates with actionable recommendations.
Massachusetts, 3 the Court retreated, offering courts, legislatures, and prosecutors an easy way ... more Massachusetts, 3 the Court retreated, offering courts, legislatures, and prosecutors an easy way to avoid confrontation-laden trials. On the one hand, the Court warned that legislatures and courts could not "suspend the Confrontation Clause," even if there were "other ways-and in some cases better ways-to challenge or verify" the prosecution's evidence. 4 On the other hand, the Court declared that states were "free to adopt procedural rules" that require a defendant to demand, or forfeit by inaction, the protections of the Confrontation Clause. 5 As a result, despite Crawford's promise, legislatures continue to minimize, or eliminate, the prosecution's burden of producing its testimonial witnesses. This Article explores and critiques the Supreme Court's puzzling productionminimizing approach to the Confrontation Clause. It does so, in part, by analyzing the Court's ambivalence about the value of production as an ongoing battle over constitutional costs. This battle pits the enforcement of constitutional structure against the management of criminal justice costs. Of course, positing a conflict between constitutional structure and constitutional cost is itself a false dichotomy, one that fundamentally misunderstands the architecture of adversarial criminal procedure. Nevertheless, between 1965 and 2004, the Supreme Court embraced that dichotomy and a resultant jurisprudence of costs drove the Court's confrontation jurisprudence. Under this pre-Crawford jurisprudence, the Supreme Court held that the Confrontation Clause did not bar the admission of an out-of-court statement if it fell within a firmly rooted exception to the hearsay rule. 6 Since 2004, the Court claims to have rejected a cost-centric jurisprudence. Crawford held that "[t]estimonial statements of witnesses absent from trial [can be] admitted only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine." 7 Crawford claimed to have restored confrontation as a rule of production: the Confrontation Clause "commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination." 8 Confrontation's costs, however, still preoccupy the Court; the Court simply sells that old, cost-conscious wine in new, Crawford-approved bottles. The result has been a withered confrontation jurisprudence that undermines the Confrontation Clause and the core structural premises of constitutional criminal procedure. Because the Confrontation Clause's production mandate has been all but forgotten by the Court and most scholars, Part I describes the Confrontation Clause's burden of production. Critically, before the Confrontation Clause bestows any rights upon the accused, it burdens the prosecution by requiring it to produce its witnesses
Fifty years ago Gideon promised that an attorney would vindicate the constitutional rights of any... more Fifty years ago Gideon promised that an attorney would vindicate the constitutional rights of any accused too poor to afford an attorney. But Gideon also promised more. Writ small, Gideon promised to protect individual defendants; writ large, Gideon promised to protect our system of constitutional criminal procedure. Much has been written about Gideon's broken promise to our poor; this Essay is about Gideon's broken promise to our system. With its army of zealous public defenders, Gideon should have produced litigation that vigorously protected the core structures of our adversary trial system. Instead, courts have converted Gideon representation into a Gideon defendant's de facto relinquishment of important Sixth Amendment rights. As a result, counsel-not client-controls the invocation and exercise of the adversary procedures. And, even as to those Sixth Amendment rights still within a defendant's exclusive control, Strickland eviscerates a defendant's capacity to seek redress when counsel precludes the exercise of a fundamental right. As a result, Gideon has increasingly become an enforcer of the status quo-a cog in the systemic machine that grinds continually toward under-enforcement of Sixth Amendment adversary rights. author. Associate Professor of Law, Tulane University Law School. The author gratefully acknowledges the research support of Tulane Law School. The author also wishes to thank Professors Jancy Hoeffel, Joe Thorp, and Keith Werhan for their extraordinary assistance. fear of adversariness 2551 essay contents introduction i. the regulation of defendant-driven adversariness through gideon and strickland A. The Court's General Preference for Nonadversarial Case Resolution B. The Court's Efforts To Regulate Defendant-Driven Adversariness at Trial ii. direct regulation of defendant adversariness over the sixth amendment A. Direct Regulation: Relying on Counsel To Constrain the Invocation of "Tactical" Sixth Amendment Rights B. The Judicial Reliance on Gideon To Justify Direct Regulation of Defendants' Control over "Tactical" Sixth Amendment Rights iii. indirectly regulating defendant-driven adversariness by applying strickland to deprivations of fundamental rights iv. some observations about the consequences of regulating defendant-driven adversariness A. Gideon-Agency and Strickland Analysis Skew Behavior by Institutional Participants in the Criminal Justice System 1. Skewing the Behavior of Lawyers and Professional Witnesses 2. Skewing Judicial Behavior 3. Minimizing the Significance of Appellate Opinions B. Gideon-Agency and Strickland Review Produce Perverse Outcomes conclusion the yale law journal
In 2019, police across Dallas County asked the District Attorney to prosecute fewer marijuana cas... more In 2019, police across Dallas County asked the District Attorney to prosecute fewer marijuana cases than the year before. This report examines whether the racial disparity in those cases improved at the same time. Fewer, Not Fairer shows that while the number of referrals declined, police were still more likely to refer a Black person for marijuana prosecution than a non-Black person. However, some cities achieved more fairness when their police departments almost entirely stopped requesting marijuana prosecutions altogether.
The United States Constitution guarantees every accused person a fair and speedy criminal process... more The United States Constitution guarantees every accused person a fair and speedy criminal process with the assistance of counsel. Yet, people across the country are arrested and held behind bars for days, weeks, and even months before they go to court or meet a lawyer. These injustices reflect an initial appearance crisis in our criminal legal system. What is an initial appearance? An initial appearance is the first time an arrested person sees a judicial officer about their case. At an initial appearance, the judicial officer should inform a person of the charges against them and assess whether, and under what conditions, the person may be released from jail pending trial. 1 Legal representation is vital at initial appearance. A lawyer can ensure that a person understands the proceedings. They can also present evidence and arguments in support of pretrial release. Studies show that having counsel at initial appearance significantly reduces a person's likelihood of being detained. 2 A prompt initial court appearance, with the assistance of counsel, is essential to fulfilling the Constitution's promises because it: Charles Koch Foundation for their generous support of this project.
Across the United States, hundreds of thousands of uncharged defendants sit behind bars without f... more Across the United States, hundreds of thousands of uncharged defendants sit behind bars without formal charges having been filed against them. This wholesale detention of uncharged criminal suspects is a “recurring part of the state sanctioned prosecutorial system.” This pre-charge detention is based solely the unchallenged allegations of a law enforcement officer. Only when a prosecutor “screens” the case formalizing or dismissing the charges, can the accused begin to defend himself or return to his pre-incarceration life.How are these lengthy uncharged detentions possible? The answer lies in the Supreme Court’s wholesale failure to regulate pre-charge criminal process. The United States Supreme Court provides more procedural protection against the wrongful “custody of a refrigerator, . . . temporary suspension of a public school student, or . . . suspension of a driver’s license,” than it does against the incarceration of an uncharged, presumptively innocent person. Uncharged pretrial defendants have no constitutional right to a prompt decision about whether the prosecution will charge them; no constitutional right to the assistance of counsel at bail proceedings; no constitutional right to investigation, discovery, or Brady material; and no constitutional right to an adversarial judicial review of the evidence used to restrain their liberty. Uncharged detainees have little, if any, due process, recourse against their Kafkaesque plight. In other contexts, the United States Supreme Court relies on the Due Process Clause to forbid, or to closely regulate, the state’s ability to incarcerate innocent people. Yet, the Supreme Court has adopted a restrictive approach to criminal due process; that approach deprives uncharged defendants of any meaningful protection against their long detention. Because the Supreme Court has applied radically different Due Process standards to criminal and civil proceedings, uncharged – and often unrepresented detainees – must rely upon the ineffectual Speedy Trial Clause, the under-enforced Eighth Amendment, and the dubious good graces of state prosecutors, to prevent their prolonged incarceration without prosecution. This reliance has proved a dismal failure.This Article explores and critiques this appalling state of affairs. Part I describes the plight of uncharged, incarcerated, criminal detainees. Part II makes the Article’s central claim: that unregulated detention-without-charges violates substantive and procedural due process. Part III makes the case for a unified approach to substantive and procedural due process. The Article concludes with some observations about the systemic impacts of a due process approach to pre-charge criminal process.
NORTHWESTERN UNIVERSITY LAW REVIEW to the layperson's need for assistance of counsel in court pro... more NORTHWESTERN UNIVERSITY LAW REVIEW to the layperson's need for assistance of counsel in court proceedings.' Rather, during the mid to late 1700's, English law forbade the assistance of counsel in nearly all criminal cases.' The law required each defendant "to appear before the court in his own person and conduct his own cause in his own words." 6 Scholars and historians offer various explanations of this prohibition on counsel. 7 Some point out that criminal prosecutions were initiated by private parties, who represented themselves; accordingly, selfrepresentation by defendants was not thought to be unfair.' Others suggest that a 'level playing field' was enforced by a neutral judge who "viewed indictors, prosecutors, jury, and prisoner with impartial distrust." 9 Still others suggest that the English government banned counsel because the monarchy was too weak and too unstable to risk the possibility that defense counsel would achieve the acquittal of accused felons." In contrast, the colonists rejected the English "private party" prosecutions and adopted a strong public prosecutor system. In that system, a professional prosecutor confronted the private citizen. The colonial prosecutor knew the law, the jury system, and the judge more intimately than could any individual defendant. This gave the prosecutor an unfair advantage that colonial lawmakers could not justify." The American impulse to determine legal rights by reference to the "settled usages and modes of proceeding" of English law gave way to the realities of an American society that demanded different protections. 2 Although the early American counsel guarantee was 4 Powell v. Alabama, 287 U.S. 45, 60 (1932) (stating that "[i]f recognition of the right of a defendant.., to have the aid of counsel depended upon the existence of a similar right at common law as it existed in England when our Constitution was adopted," the right to counsel could not be justified as a necessary component of due process), 5 Faretta v. California, 422 U.S. 806, 823 (1974). 6 Id. (quoting 1 POLLACK & MAITLAND, THE HISTORY OF ENGLISH LAW 211 (2d ed. 1909)). The sole exceptions were at the outer edges of criminal procedure-counsel was permitted both in misdomeanor and treason cases. Scholars have posited that this distinction arose precisely because those accused of misdemeanors and treason were prosecuted by England's only public prosecutor-the Crown. This ban on counsel in felony cases persisted until 1836 when Parliament gave criminal defendants the right to appear through counsel.
This policy brief de nes a county as "rural" if it has a classi cation of 5-9 under the U.S. Depa... more This policy brief de nes a county as "rural" if it has a classi cation of 5-9 under the U.S. Department of Agriculture's Rural-Urban Continuum Codes (RUCC). 14 Similarly, this policy brief characterizes an attorney as "rural" if they list a primary practice address in a rural county. 15 Of course, county populations alone cannot fully capture what makes a legal system "rural." A more precise de nition of rural criminal practice would consider such factors as case density, geographic isolation, and attorney scarcity. Rural-Urban Continuum Codes (RUCC) More Rural
Across the United States, thousands of newly arrested people disappear. They languish behind bars... more Across the United States, thousands of newly arrested people disappear. They languish behind bars for days, weeks, or even months without ever seeing a judge or an attorney. Yet, the Supreme Court requires more constitutional process for the seizure "of a refrigerator, the temporary suspension of a public school student, or the suspension of a driver's license," than it does for a person who has just been arrested. 1 A new arrestee has no clearly established constitutional right to a prompt initial appearance procedure. As a result, there is no constitutional doctrine that guarantees her the right to appear promptly before a judge, to challenge the evidence that supports her arrest, to receive the prompt assistance of counsel, or to participate in an adversarial bail hearing. Amidst our national conversation about the need for criminal justice reform, this Article is the first scholarly work to address the initial appearance crisis. Part I of the Article describes the epidemic of detention-without-process that plagues our criminal justice system. Part II explores the legal landscape that produced this crisis. It describes the Supreme Court's commitment to a narrow Fourth Amendment jurisprudence and critiques the Court's rejection of early-stage criminal due process rights. Part III marshals substantive and procedural due process doctrines that can vindicate the constitutional right to a prompt and thorough initial appearance procedure. Part IV proposes an agenda for research and reform of early-stage criminal proceedings.
ABSTRACT It is black letter constitutional law: To prove a criminal offense, the prosecution must... more ABSTRACT It is black letter constitutional law: To prove a criminal offense, the prosecution must prove every element of the offense, by proof beyond a reasonable doubt, and the constitution entitles a defendant to confront and cross-examine all witnesses against him. Yet, for the past thirty years, state legislatures have quietly approved laws that cheat the constitution. By that, I mean that these laws fly, undetected, beneath the constitutional radar while violating fundamental constitutional rights. Although other constitutional cheats abound, in this article I consider one archetypical cheat: statutes that permit state prosecutors to use hearsay state crime laboratory reports, in lieu of live witness testimony, to prove essential elements of a criminal case. These statutes convert the allegations of an uncross-examined state witness into proof beyond a reasonable doubt. I call these forensic proof statutes forensic ipse dixit statutes, because "a bare assertion resting on the authority of an individual" becomes, ipse dixit, an adjudicated fact. The forensic ipse dixit statutes deprive defendants of the right to confrontation and relieve the government of its burden of proof. Along the way, these statutes discourage vigorous defense advocacy, promote carelessness and fraud in crime laboratories, and increase the likelihood of wrongful convictions and sentences. In Section I of this article, I provide an overview of the nationwide forensic ipse dixit phenomenon. In Section II, I address the unwarranted presumption of reliability that legislatures and courts often accord to forensic reports. In Sections III and IV, respectively, I discuss how the forensic ipse dixit statutes violate the Confrontation and Due Process clauses of the United States Constitution. In Section V, I offer observations about what constitutional cheating reveals about our criminal justice system.
Public defender offices serve a crucial public interest, but they are uniquely prone to a number ... more Public defender offices serve a crucial public interest, but they are uniquely prone to a number of conflicts of interest. Clients indicted together may have adverse interests but few other options for defense counsel. Every state structures its public defender offices differently; in some states, public funding regulations may incentivize high client volume over quality counsel. The panelists have extensive experience in state and federal public defender offices and are also leading scholars on the unique conflicts those offices face
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