Four Reforms for the Twenty-First Century

By Scheck, Barry | Judicature, May/June 2013 | Go to article overview

Four Reforms for the Twenty-First Century


Scheck, Barry, Judicature


What follows are my top four suggestions for judicial action and advocacy that can result in urgently needed and readily achievable reforms. As the American Judicature Society and its members consider their agenda and mission for the coming years, each of these issues deserves their support.

It is a considerable challenge, a distinct privilege, and no doubt a fool's errand to survey the past one hundred years in the field of criminal justice with the purpose of identifying trends and key issues that will critically challenge jurists who are concerned with reforming the system. 1 cannot pretend to possess a legal historian's breadth of knowledge and remain a prisoner of my own professional and personal experience. That experience instructs, above all else, to be wary of observer bias. So it's best to make important aspects of that experience manifest from the beginning and warn that the views expressed here are entirely my own and should not be taken as the official position of any organization with which I am associated.

I began practicing criminal law in 1975 as a Legal Aid lawyer (public defender) in the South Bronx, inspired by the civil rights movement and the landmark criminal justice rulings of the Warren Court. At that time, New York City was experiencing a financial crisis: The Association of Legal Aid Attorneys had formed a union and was striking to assure that lawyers had access to telephones, office space, vertical representation (the right to represent clients from arrest to disposition), and that some limitations were put on caseloads, which were spiraling out of control. The process of "early case assessment" had just begun-screening by a bureau of district attorneys of the initial statements from officers and witnesses, case severity (breaking down nonviolent felonies to misdemeanors), and case strength. This was just the first salvo in a trend over the next three decades that shifted initial access to information and assessment of cases for purposes of early plea bargaining and setting of bail away from judges and into a domain more exclusively supervised by prosecutors. The crack cocaine epidemic was nascent and the movement towards determinant sentencing and mandatory minimums was taking hold, again signaling the coming shift in the power over sentencing away from judges to prosecutors. Charles E. Silberman's sweeping and insightful overview of the system in 1980, Criminal Violence, Criminal Justice,1 perfectly captured the era and holds up to this day.

By the time I began teaching law, practicing in federal courts, and helping construct in-house clinical programs that trained both prosecutors and defense attorneys (1979), I was inhabiting a world without federal sentencing guidelines, cell phones, personal computers, or the internet, much less DNA technology, sophisticated neuroimaging, or the crunching of "big data." 1 have been fortunate to have a diverse practice and participated in heavily publicized proceedings including civil rights suits against both police departments and prosecutors. I have defended clients, in state and federal court, at trials and on appeal, who were accused of a myriad of crimes.2 Perhaps most important of all, for the past 24 years, I have been lucky enough to be part of the "innocence movement" and to work intimately with a collection of lawyers (defense and prosecution), judges, scholars, and scientists who have litigated, adjudicated, and studied an unprecedented wave of "exonerations" based on DNA tests and other new evidence of innocence.

So having quickly summarized my experience and potential observational bias, what follows are my top four suggestions for judicial action and advocacy that can result in urgently needed and readily achievable reforms. As the American Judicature Society and its members consider its agenda and mission for the coming years, each of these issues deserves support.

Lead on Indigent Defense Reform

In this 50th anniversary year of the Gideon3 decision, there is no area of criminal justice reform that has made less progress over the last century or is more significant for improving the system than the right to counsel.

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