Talking Back in Court

People charged with crimes often speak directly to the judge presiding over their case. Yet, what can be seen in courtrooms across the U.S. is that defendants rarely “talk back” in court, meaning that they rarely challenge authority’s view of the law, the crime, the defendant, the court’s procedure, or the fairness of the proposed sentence. With few exceptions, legal scholars have treated the occasions when defendants speak directly to the court as a problem to be solved by appointing more lawyers and better lawyers. While effective representation is crucial, this Article starts from the premise that defendants have important things to say that currently go unsaid in court. In individual cases, talking back could result in fairer outcomes. On a systemic level, talking back could bring much-needed realism to the criminal legal system’s assumptions about crime and punishment that produce injustice. This Article analyzes three types of power that prevent defendants from talking back in court: sovereign, disciplinary, and social-emotional power. While sovereign power silences defendants through fear, disciplinary power silences defendants by imposing a system of order within which talking back seems disorderly. Finally, social-emotional power silences defendants by imposing an emotional regime in which self-advocacy is both a breach of decorum and an affront to the court’s perception of itself as a source of orderliness and justice. The dynamics of social-emotional power are particularly critical to evaluating court reform efforts focused on improving courtroom culture. Paradoxically, the more solicitous the judge, the less the defendant may feel comfortable raising concerns that challenge the court’s narrative of justice

Public Defender Workload and the Promise of Gideon

Gideon v. Wainwright, which was decided in 1963, held that the Sixth Amendment guarantees the right to counsel for poor people charged with crimes in state court.1 Over the six decades since Gideon was decided, states have grappled with how to provide public defense services

Terror and Tenderness in Criminal Law

Sentencing reductions, executive pardons, prison release programs, and progressive prosecutors have something in common. In word choice and design, they suggest tempering the violence of criminal law in a limited number of cases. The prisoner may be released early based on a record of good behavior. The President may grant clemency to those sentenced in an earlier era to decades in prison for a drug crime. The prosecutor may recommend drug court rather than a jail sentence to a defendant addicted to illegal substances. In the era of “smart on crime,” reform often comes through expanding these mechanisms of relief that rely on individualized discretionary decisions to reduce the number of people prosecuted, convicted, and punished for crimes. Although the tagline “smart on crime” generally refers to interventions that meet measurable objectives at acceptable costs, these reforms often are accompanied by an endorsement of the power of discretionary actors to act in a caring manner toward the targets of prosecution and punishment. Empowered to unleash the violence of criminal systems upon the targets of criminal prosecution and punishment, prosecutors and judges can often exercise their discretion along the lines of conceptually fuzzy gestures of leniency, mercy, or compassion

Invisible Prisons

Modern punishment theory is based on an inadequate conceptualization of the severity of incarceration. While the severity of a prison sentence is measured solely in terms of the length of time, the actual experience of imprisonment is often more punishing and more destructive than a simple loss of liberty. Yet, lawmakers and judges evince a surprising lack of institutional interest in understanding the experience of imprisonment and applying this knowledge to sentencing. This lack of official attention to how prison is experienced by incarcerated people is one of the drivers of mass incarceration. This Article is the first scholarly work to analyze the weaknesses of punishment theory using a new and flourishing branch of political philosophy: epistemic injustice theory. The theory posits that disfavored social groups are excluded from contributing information about their experience that should be relevant to policy decisions. Epistemic injustice theory can be applied to analyze why incarcerated people’s accounts of prison’s cruelties are ignored or discounted in punishment decisions. As a disfavored group, prisoner accounts of prison’s harshness are discredited. As a result, sentencing decisions are made with only the thinnest understanding of the punishment being imposed — number of years of lost liberty — and with no accounting for the actual impact of incarceration on the person sentenced. Applying the framework of epistemic injustice to explore the thinness of punishment theory serves more than a descriptive function. It also forms the basis for concrete recommendations to improve sentencing policy and practice. To this end, the Article suggests (1) how sentencing authorities can exercise epistemic responsibility in punishment decisions; (2) how incarcerated people can participate in knowledge-creation; and (3) how the problem of variability of prison conditions can be accounted for in sentencing

Decriminalizing Violence: A Critique of Restorative Justice and Proposal for Diversionary Mediation

In this article, Professor Hanan explores the issues surrounding reforms to the criminal justice system, juveniles, and conflict resolution. She asserts that enthusiasm for restorative justice as the best method of out-of-court dispute resolution in criminal cases should be tempered in favor of mediation, which is neutral because it does not assume that the accused is guilty and that healing or repair is warranted. Because decriminalization is not complete and the state retains jurisdiction, Professor Hanan argues for a neutral mediation program, which should (1) function to reduce overall contact with the criminal courts and (2) include procedural safeguards in acknowledgment of the coercive effect of the threat of prosecution. This article is divided into three parts. Part I explores the feasibility and desirability of resolving crimes of violence outside of the criminal justice system. Part II examines two strands of restorative justice that undermine its ability to provide an alternative to criminal court-first, its therapeutic agenda and second, its claim that it functions separately from the criminal justice system. Part III lays out the elements of an alternative to restorative justice, a neutral form of mediation that could serve as a diversion from criminal court and as an alternative to restorative justice. By providing procedural protections, neutral mediation could offer both a meaningful form of dispute resolution and serve as a form of quasi-decriminalization for many criminal charges. Recommendations include the involvement of due process professionals in the design and implementation of criminal mediation programs to meet the goals of (1) reducing overall contact with the criminal courts and (2) providing procedural safeguards in acknowledgment of the coercive effect of the threat of prosecution. Part IV concludes with a discussion of potential objections to a system of mediation as an alternative to prosecution for instances of violent crime, including objections that might be brought by critics of informalism regarding both the rights of the accused and the safety and support of victim

Big Law, Public Defender-Style: Aggregating Resources to Ensure Uniform Quality of Representation

Stories abound of public defenders who, overwhelmed with high caseloads, allow defendants to languish in pre-trial detention and guilty pleas to be entered without examining the merits of the case. Most defendants cannot afford to hire an attorney, and, thus, have no choice other than to accept the public counsel appointed by the court. In this Essay, I consider whether Professor Benjamin Edwards\u27 central argument in The Professional Prospectus: A Call for Effective Professional Disclosure \u27-that attorneys should provide potential clients with a prospectus disclosing their performance history-applies to criminal defense. I reject the proposition that most people charged with crimes would have better representation if they could choose their attorneys and, to that end, had adequate information about their attorney\u27s past performance. I conclude, instead, that the problem of inadequate criminal defense representation can be better remedied by improving the infrastructure for public defense. Others have argued that large, state-wide public defender offices provide better representation than smaller public defender offices or systems in which private attorneys accept public appointments from the court because large offices can aggregate resources. This essay adds to the discussion of the benefits of large public defender offices in two ways. First, it argues that statewide public defender offices can be evaluated for effectiveness, allowing potential clients and the general public to assess the quality of representation they provide. Adequate information about the effectiveness of the large public defender offices can overcome a common mistake that potential clients make regarding criminal defense-that a private attorney is always more effective than a public defender. Second, statewide public defender offices can use performance data and institutional processes to implement uniform structural and attitudinal changes that insure consistently excellent representation from all attorneys working in the office. The question of access to information about attorney performance is still relevant but should be refrained. It is not a question of how individual clients can evaluate individual attorneys, but of how the public sphere can use the information available to institutionalize excellence in public defense

Incapacitating Errors: Sentencing and the Science of Change

Despite widespread support for shifting sentencing policy from “tough on crime” to “smart on crime,” reflected in legislation like the federal First Step Act, the scope of criminal justice reform has been limited. We continue to engage in practices that permanently incapacitate people while carving out only limited niches of sentencing reform for special groups like first-time nonviolent offenders and adolescents. We cannot, however, be “smart on crime” without a theory of punishment that supports second chances for the broadest range of people convicted of crimes.This Article posits that the cultural belief that adults do not change poses a major impediment to “smart on crime” policies. Current sentencing policies focus on long-term incapacitation of adults with criminal records because of our folk belief that adult personality traits are immutable. Whereas adolescents are expected to mature over time, and thus can rarely be determined to require permanent incapacitation, adults lack the benefit of the presumption of change.Standing in contrast to our folk belief that adults do not change is a growing body of neuroscientific and psychological literature that this Article refers to as, “the science of adult change,” which demonstrates that adult brains change in response to environmental prompts and experience.The science of adult change has powerful implications for punishment theory and practice. In its broadest sense, the science of adult change supports an empirically grounded, normative claim that sentencing should not attempt to identify the true criminal to permanently exclude. Rather, sentencing policy should engage in only modest predictions about future behavior. The presumption of reintegration as a full member of society should be the norm. Moreover, because adult change occurs in response to environmental stimuli, the science of adult change supports both public accountability for the conditions of confinement and, ultimately, a challenge to incarceration as our primary means of responding to social harm

Remorse Bias

In this article, Professor M. Eve Hanan addresses how implicit cognitive biases may affect judges when they decide whether to credit defendants\u27 displays of remorse and how we can lessen the effects of that bias. Part I of this article introduces the main ideas to be discussed. Part II establishes the salience of remorse to punishment decisions and then demonstrates the ambiguity involved in assessing the sincerity of remorse. Part III examines existing research on implicit biases associating African Americans with criminality to consider whether judges are likely to view African American defendants\u27 expressions of remorse as insincere and, thus, unworthy of leniency. Part IV critiques and rejects two strategies for addressing implicit bias in punishment decisions - cabining discretion and sanitizing racial content from consideration. Part V offers recommendations to reduce the impact of racial bias on remorse assessments in punishment decisions

Incarcerated Activism During COVID-19

Incarcerated people have a notoriously difficult time advocating for themselves. Like other authoritarian institutions, prisons severely curtail and often punish speech, organizing, and self-advocacy. Also, like other authoritarian institutions, prison administrators are inclined to suppress protest rather than respond to the grounds for protest. Yet, despite impediments to their participation, incarcerated people have organized during the pandemic, advocating for themselves through media channels, public forums, and the courts. Indeed, a dramatic increase in incarcerated activism correlates with the onset of the COVID-19 pandemic. Just as the COVID-19 pandemic highlights injustice in other areas of criminal legal practices, it reveals both the dangers of silencing incarcerated speech and the potential for prisoner self-advocacy. This essay discusses silencing and speech in carceral spaces during the COVID-19 pandemic, using a theory of political philosophy called epistemic injustice. The theory of epistemic injustice addresses how disfavored social groups are excluded from sharing knowledge in public conversations. The stifling of prisoner speech occurs in part because incarcerated people are deliberately separated from the outside world. But it also reflects their status as a stigmatized-and thus discredited group. Even when their speech is heard, it is discounted as manipulative and untrustworthy. Second, this essay argues that the self-advocacy efforts made by incarcerated people during the pandemic demonstrate the democratic value of their participation. Among the necessary predicates to meaningful change in criminal legal practices is the democratic participation of the targets of those practices, including suspects, criminal defendants, and prisoners. Their participation in the political sphere serves a vital democratic function the absence of which is felt not only in the authoritarians structure of prisons, but in the failure to enact widespread change to criminal legal practices