Washington and Lee law professor J.D. King has published a new article titled Beyond ‘Life and Liberty’: The Evolving Right to Counsel. The article appears in the Harvard Civil Rights-Civil Liberties Law Review, Vol. 48, 2013. Here is the abstract:
The majority of Americans, if they have contact with the criminal justice system at all, will experience it through misdemeanor courtrooms. More than ever before, the criminal justice system is used to sort, justify, and reify a separate underclass. And as the system of misdemeanor adjudication continues to be flooded with new cases, the value that is exalted over all others is efficiency. The result is a system that can make it virtually painless to plead guilty (which has always been true for low-level offenses), but that is now overlaid with a new system of increasingly harsh collateral consequences. The hidden consequences of a conviction may never be explained to the person choosing to plead guilty, leading to unjust results that happen more regularly and with more severe consequences than ever before.
This Article argues that current Sixth Amendment jurisprudence on the right to counsel has not adequately adapted to the changed realities within which misdemeanor prosecutions take place today. Because of the dramatic changes in the cultural meaning and real-life consequences of low-level convictions, there is no longer a useful or constitutionally significant line between those cases resulting in actual imprisonment and those cases not resulting in imprisonment. Two years ago in Padilla v. Kentucky, the Supreme Court recognized that the line between the direct and collateral consequences of a conviction has no constitutional significance in defining the effective assistance of counsel. Recognizing that the Sixth Amendment right to counsel has evolved throughout its history to accommodate the changing cultural context of criminal prosecutions, this Article calls for a robust expansion of the right to counsel in all criminal cases.
The article is available for download from SSRN.
We’ve just wrapped up the Law Review Symposium on Gideon at 50 here at W&L School of Law. Each of the speakers and panels were very informative and thought provoking. Moving beyond an idealistic nostalgia for Gideon, the panelists took on the meaning and value of Gideon today and the future of the right to counsel.
Does access to justice demand an expansion of Gideon or funding for indigent defense? Or do we need to be smart on Gideon, doing triage to figure out which cases really warrant an attorney versus some other type of non-attorney advocate. In a world of plea-bargaining, hyper-incarceration, and collateral consequences for criminal convictions, what is the proper way to deploy and support a right to indigent defense counsel? These questions and more were explored during the past two days and will be discussed in greater detail in works to be published in the Washington & Lee Law Review this spring in its Symposium Issue. Video of the symposium will be available at a later date.
Congratulations and appreciation are due to the organizers of the symposium, Professor J.D. King and Law Review Symposium Editor Carney Simpson, as well as Editor-in-Chief Alex Sugzda.
Fifty years ago the landmark case Gideon v. Wainwright established the right to counsel for criminal defendants. An upcoming symposium at Washington and Lee School of Law will explore the legacy of this case, its impact on the criminal justice system, and the future of the right to counsel.
The symposium is scheduled for Nov. 8-9 in the Millhiser Moot Court Room, Sydney Lewis Hall on the grounds of Washington and Lee University. The event is free and open to the public.
W&L professor and symposium co-organizer J.D. King, who directs the school’s Criminal Justice Clinic, notes that this is not a celebration of the case, but rather a cold, hard assessment of what has gone right and what has gone wrong since Gideon became law.
“One of the failings of the criminal justice system is that while we do provide lawyers to people who can’t afford their own, there is no meaningful check on how good those lawyers are,” says King. “The reality of indigent defense is that in many cases defendants get a lawyer in physical presence only.”
Another problem, says King, is how Gideon and the right to counsel has been limited to apply only to so-called “serious” cases, that is, cases that could result in incarceration. However, there are more serious consequences that can result from a misdemeanor conviction now than there were when Gideon was decided.
“You can get deported, kicked out of your housing, lose student aid, not a get a job because of a background check, or wind up on the sex offender registry, all for misdemeanors for which you were not entitled to counsel,” says King.
The symposium is especially timely, adds King, as the fiscal crisis of the last several years has put increased strain on funding for public defender systems. Indeed, in many states, including Virginia, defendants eventually bear the burden of the cost of their attorney, which can force them to waive their right to counsel from the outset.
The symposium will bring together scholars and practitioners representing a range of views on the issues. Symposium attendees include Norman Reimer, executive director of the National Association of Criminal Defense Lawyers and Robin Steinberg, founder of the visionary defense support service The Bronx Defenders, as well as leading academics from law schools around the country.
The symposium is sponsored by the W&L Law Review, the Frances Lewis Law Center, the National Association of Criminal Defense Lawyers and the Foundation for Criminal Justice. A complete list of panelists, symposium schedule and registration information is available online at law.wlu.edu/gideon.
Several Washington and Lee Law School faculty members presented last week at the annual meeting of the Southeastern Association of Law Schools (SEALS). In addition, David Millon, J. B. Stombock Professor of Law at Washington and Lee University School of Law, took the helm as President of SEALS for the 2012-13 term.
In addition to his duties with the organization during the conference, Millon also served as a panelist in a session on how recent Supreme Court decisions and congressional legislation are affecting business and regulatory issues and in a discussion group focused on teaching business law in a new economic environment. Other presentations by W&L faculty included:
- Johanna Bond, who participated in a discussion group on contemporary issues in gender and the law.
- Christopher Bruner, who presented a paper during a panel on recent developments in corporate governance.
- Mark Drumbl, who participated in a discussion group on the growing importance of international matters to legal education.
- Jill Fraley, who presented her research on maps as legal arguments in a new scholars panel.
- Brant Hellwig, who participated in a discussion group on tax reform in 2012.
- John Keyser and Todd Peppers, who participated in a panel on social science and the law.
- J.D. King, who participated in a panel on implicit racial bias in the criminal justice system.
- Joan Shaughnessy, who served as a moderator of a new scholars panel.
- Robin Wilson, who participated in a panel on cutting edge issues in family law.
The rift between legal theory and the practice of law can be wide and deep. As the director of the Washington and Lee Criminal Justice Clinic and also through his own scholarship, Professor J.D. King has endeavored to bridge this chasm.
Professor King opened the doors of the W&L Criminal Justice Clinic in 2009. Clinic students serve as court-appointed attorneys for indigent criminal defendants facing misdemeanor charges in local criminal courts. Under Virginia’s third-year practice rule, Professor King supervises the work of 8-10 students each year. Together these students will represent approximately 75 clients per year. Most students will conduct at least one trial during their time in the clinic. The mission of the clinic is two-fold in Professor King’s view: “To provide a level of representation that is second to none, and to allow the students to truly take ownership of a case from start to finish.”
According to King, clinical education complements traditional courses in a number of ways. First, it teaches students how to develop facts. “Facts are messier in real life than they appear in first year case books,” King says. “Students in the clinic learn how to investigate, develop, and present the facts from an advocacy perspective that they don’t generally see in the classroom. Second, the clinical experience promotes “critical self-reflection. Not only do students learn how to think and act like lawyers, but they are explicitly trained to reflect on their practices with an eye towards improving their performance the next time around.” Finally, King hopes that “the clinic will impart some lessons about social justice. . . how the system can be structured in a way that makes it very difficult for people to achieve justice or fairness, and what lawyers can do to change that.”
After graduating from the University of Michigan Law School, King began his legal career knowing that he wanted to represent poor people charged with crimes. After a two-year federal clerkship, he landed a prestigious E. Barrett Prettyman Fellowship at Georgetown University Law Center, where he represented clients facing criminal charges in the D.C. courts, and supervised law students as part of Georgetown’s Criminal Justice Clinic. He then moved to the Public Defender Service for D.C., where he represented indigent clients on charges ranging from shoplifting to homicide and everything in between. During his time at the Public Defender Service, King also served as a Supervising Attorney in the Trial Division in addition to handling his own cases.
King’s scholarship has flowed directly from his professional experience with the issues involved in ethics and criminal defense. “There is a dearth of high-level scholarship that explains what one should actually do. . . when confronted with these situations, “ he explains. His first article Candor, Zeal, and the Substitution of Judgment: Ethics and the Mentally Ill Criminal Defendant, 58 Am. U. L. Rev. 207 (2008) examines the ethical dilemmas faced by a criminal defense attorney who represents a mentally impaired client. King argues that granting defense attorneys more leeway in fulfilling their role of zealous advocate would enhance the ultimate aim of dignity and due process in the criminal justice system.
Another article, forthcoming in the Harvard Civil Rights-Civil Liberties Law Review is entitled, Beyond “Life and Liberty”: The Evolving Right to Counsel. It takes a broad look at misdemeanor convictions in the United States and the traditional doctrine that holds there is no constitutional right to counsel unless incarceration is actually imposed. Recently, however, there has been an explosion in the numbers of these low-level prosecutions as well as an increase in the severity of collateral consequences, such as deportation or loss of public housing. Given these trends, King argues that this traditional view needs to be modified to allow for a broader right to court-appointed representation for misdemeanor defendants.
In his quest to marry theory and practice together, King has found a sweet spot of education and practice. “I love coming to work every day.”
Professor John D. King, Associate Clinical Professor, recently had his paper, “Procedural Justice, Collateral Consequences, and the Adjudication of Misdemeanors” published in The Prosecutor in Transnational Perspective, edited by Erik Luna and Marianne Wade (Oxford University Press 2011).
Scholarly analysis and popular perceptions of the American criminal justice system tend to focus on serious crimes. The majority of Americans, however, will interact with the criminal justice system (if at all) in a misdemeanor courtroom, in which dozens of defendants wait for hours to spend a few moments in front of a judge. Many of them will not be represented by a lawyer and very few of them will have a single piece of paper filed on their behalf. Individually, their cases might command the scrutiny of a police officer for a couple of hours, a prosecutor for a couple of minutes, and a judge for a couple of moments. With a few notable exceptions, the process by which we prosecute and adjudicate low-level cases in the American criminal justice system has gone largely unexplored and unexamined, despite its being the primary contact that most Americans have with the criminal justice system.
In his essay, Prof. King addresses some of the issues surrounding the prosecution and adjudication of low-level offenses in the United States, looking specifically at the changed context within which such prosecutions take place today. He explores the tension between the formal procedural safeguards and adversarial zeal that is supposed to characterize the American criminal justice system, and the practice of the processing of misdemeanor cases as it actually occurs in courtrooms across the country. Prof. King also examines the recent explosion of the scope and number of collateral consequences that attend a criminal conviction, including many misdemeanor convictions. He addresses the issue of wrongful convictions, an issue that has received great focus recently in the context of serious cases but much less so with regard to the low-level prosecutions that dominate the criminal justice system. Finally, Professor King argues that the dramatic increase in misdemeanor prosecutions as well as the sharp rise in the seriousness and scope of the resulting collateral consequences requires a change in how such cases are adjudicated.
The article can be found on SSRN here.