Academic journal article The Yale Law Journal

Federal Public Defense in an Age of Inquisition

Academic journal article The Yale Law Journal

Federal Public Defense in an Age of Inquisition

Article excerpt

ESSAY CONTENTS

INTRODUCTION

I. GIDEON AND THE ALLEN REPORT

II. THE SYSTEM NOW
    A. The Big Picture
    B. The Federal Defenders of New York

III. FAIRER PROCESS: THEN OR NOW?
CONCLUSION

INTRODUCTION

There seem to be two bad options when writing about my work as a federal public defender: describe it as it is and sound like a lunatic preaching the end of days, or engage in a more nuanced discussion and risk minimizing the injustices that exist. And when commemorating the fiftieth anniversary of Gideon v. Wainwright, (1) there is yet another balancing act: recognizing its considerable achievement while avoiding claims of progress where none exists. In this Essay I try to navigate those dangers by posing and attempting to answer the following question: would an indigent federal defendant prefer to be prosecuted in the system as it existed in 2963 with an ill-equipped, unpaid lawyer (or none at all), or would he prefer today's system? Although the answer surely depends on many factors, I conclude that in far too many scenarios, the rational defendant would choose 1963.

In answering the question, I examine who the defendants in the federal criminal justice system are and what opportunities they have for meaningful advocacy. I try not to rely on substantive law except to the extent that substance affects process. If the choice between 1963 and today was put to a defendant purely as a matter of substantive law, the answer would be far too easy. Federal criminal law has expanded so much, (2) and grown so much more punitive, (3) that 1963 would win in a landslide. But the process question is a closer call and directly implicates the holding of Gideon. On the one hand, the provision of funded and better-trained lawyers is an improvement that speaks for itself. On the other hand, even as lawyers have become better funded and trained, extraordinary damage has been done to the aspect of the criminal justice system that makes lawyers so necessary and valuable: the adversarial process. Extreme severity, the control of that severity by prosecutors, and high rates of pretrial detention have so curtailed defense lawyers' ability to do those things that Gideon considered vital-testing evidence, pressing arguments, and challenging the government's allegations before a neutral arbiter--that many defendants today would be better off in the system as it existed in 1963, with no lawyer or an incompetent one.

It may seem strange to discuss federally appointed counsel in a symposium about Gideon. After all, federal defendants obtained the right to counsel twenty-five years earlier in Johnson v. Zerbst, (4) and Gideon was a decision about incorporating the right and applying it to the states. Nonetheless, Gideon profoundly affected the federal system. Before 1964 and the passage of the Criminal Justice Act (CJA), (5) appointed attorneys were not paid to represent indigent federal defendants. (6) Nor was there any funding for case-related expenses, much less investigators or experts. (7) Gideon, along with the highly influential report of Professor Francis Allen to then-Attorney General Robert F. Kennedy (the Allen Report), (8) was a significant reason for passage of the CJA and for the creation of a funded federal defense system.

Part of why Gideon was so powerful was the simple logic and appeal of its reasoning. We operate in an adversarial system, governed by complex rules, and it works best when both sides engage on equal footing before a neutral arbiter--judge or jury. We have lawyers for the prosecution; therefore, we should have lawyers for the defense. "Governments, both state and federal, quite properly spend vast sums of money to establish machinery to try defendants accused of crime," the Court found, and "reason and reflection require us to recognize that in our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him. …

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