Why Gideon Failed: Politics and Feedback Loops in the Reform of Criminal Justice

Table of ContentsI. Introduction 884II. Gideon's Failure 894A. The Impact of Gideon 894B. The Current State of Indigent Defense 900III. Leading Academic Critiques of the Court's Right-to-Counsel Jurisprudence 902A. The Liberal Narrative 902B. The Agency-Costs Narrative 903IV. Two Thought Experiments 907A. The First Experiment: Suppose the Supreme Court Compelled Allocation of AdequateResources for Indigent Defense 907B. Suppose We Curtailed Sentencing Severity and Prosecutorial Discretion 913V. Three Reform Agendas 915A. A Liberal Agenda: Planning for a Second Revolution 916?. A Conservative Agenda 919C. A Pragmatic Agenda 924VI. Conclusion 925I. IntroductionThe central topic of scholarship on criminal procedure in the United States is the Warren Court's "criminal procedure revolution" of the early 1960s.1 The literature now includes at least seven important narratives about the Warren Court criminal cases. First, a conservative narrative denounces the Warren Court for imposing judge-made law without due regard for the cost to social control of the new rules.2 Second, a liberal narrative abetted and then celebrated the Warren Court.3 As the Court became more sympathetic to law enforcement during the 1970s and since, liberals criticized the post-Warren justices for failing to give the Warren Court landmarks a principled defense.4In the liberal narrative, perverse legislative incentives call on grounds of process theory for an active judicial role on behalf of suspects, defendants, and prisoners drawn disproportionately from disempowered groups, especially African-Americans.5 The liberal narrative points to the long legislative record of indifference or even hostility to the rights of suspects and defendants, the persistent and extreme neglect of indigent defense being a prominent example.6 Drawing bleaker conclusions from similar premises, a third, more radical narrative read the Warren Court canon not as revolution, but as legitimation and entrenchment.7The clash of traditional liberal and conservative narratives has never entirely abated.8 That clash, however, lost much of its currency after the "punitive turn" in American criminal justice policy. During the second half of the 1980s and ever since, sentencing policy throughout most of the country became both more severe and, with respect to the judiciary, less discretionary.9 Public prosecutors with plenary discretion to select the charges that trigger fixed-sentencing consequences became the most important actors in the system.10 Guilty pleas, which accounted for about four out of five convictions through the 1970s, accounted for more than nine of ten by the end of the twentieth century.11The punitive turn coincided with another dramatic development in criminal justice-DNA exonerations. The prevailing wisdom, often assumed in liberal as well as conservative narratives, held that (virtually) all criminal defendants are in fact guilty.12 The DNA technique shook that confidence. In 1996, a review of tens of thousands of DNA tests requested by law enforcement found that about a quarter of the conclusive tests exonerated the suspect.13The punitive turn and the innocence movement supported different, if not entirely new, narratives about the Warren Court's revolution. The innocence movement informed and reinforced a fourth narrative concerned with factual accuracy. The accuracy narrative faulted the Warren Court for neglecting due process in favor of Fourth, Fifth, and Sixth Amendment rights that often have no (or a perverse) relationship to guilt and innocence. …