The University of Pennsylvania Law School, where one of us (Bibas) teaches, is blessed with one of the largest law libraries in America and a world-class staff of researchers. We asked the librarians a pretty simple question: Find us examples of criminal courts that are using technology to innovate and streamline criminal proceedings, making them cheaper and more accessible. Despite repeated requests, we could not find a single example. Sure, there are some courts (though not enough) that are using technology to provide judges and probation officers with more accurate information more quickly, or to track defendants’ histories and case outcomes or train lawyers and court personnel. But in Chapter 8’s terminology, these are modest automations, not innovations. Unlike eBay, Modria, or even small-claims courts or administrative tribunals, these criminal-court experiments do not disrupt the lawyer-driven, adversarial model of resolving disputes one case at a time by bringing all the parties, lawyers, and judge together, almost always in the same physical location. It is possible that there are innovators who are hiding very well; more likely, this void illuminates the power of inertia. Technology has revolutionized the private sector and opened up new ways of resolving disputes that were unimaginable half a century ago. But courts are technological backwaters and have neither the incentives nor the expertise to try out new ways of resolving criminal cases. Even if they did, the Supreme Court’s constitutional dictates would limit courts’ freedom to experiment with different ways of providing justice. The contrast between civil innovation and criminal stagnation is one of the biggest downsides of Gideon’s approach.
The American Bill of Rights is an unusual document in many ways. When it was written, it included the most comprehensive list of rights for criminal defendants ever assembled. Colonial Americans, like modern Americans, were not particularly enamored of criminals. If you doubt this statement, browse a list of the severe criminal punishments of the time. Nevertheless, the Framers of the Bill of Rights were very concerned about government overreaching. The Bill of Rights starts from the premise that every criminal defendant is also a citizen facing off against a very powerful government, and thus deserves substantial protections.
The United States was founded as an idealistic project of a government of limited powers, hemmed in by rights guaranteed to every citizen. Every citizen, from the poorest to the richest, should get a fair shake when facing off against the State in a criminal court. Equal justice under law is promised to all; not just the wealthy, not just the powerful, and not just the innocent.
Gideon v. Wainwright is a powerful restatement of that ideal. But to suggest any solution that trims back the guaranteed right to a lawyer has been seen as a heretical rejection of the fundamental right to equal justice under law. The ideal of Gideon has blinded us to the reality of today’s criminal courts. Equal justice under law is almost as distant today as it was in the 1960s, and there is almost no chance of infusing enough money to fix the broken system.
We suggest a more realistic strategy of triage and a grand bargain that would make Gideon narrower but deeper, concentrating funding at its core. Felonies, particularly the most serious ones with plausible claims of innocence, would get more time, money, and attention. In return, misdemeanors that carry no serious collateral consequences would be handled without lawyers on either side. Misdemeanor courts would greatly simplify their procedures and evidentiary rules; assist pro se litigants; let paraprofessionals help; and even use e-adjudication to streamline dispute resolution. Specialized non-lawyers, or occasionally appointed lawyers, would help youths, mentally retarded, mentally ill, and non-English-speaking defendants. Done right, these reforms could reduce pretrial detention and delay and promote alternatives to prison. They could also give prosecutors incentives to push for felonies and substantial jail time only in the fraction of cases that truly require them.
People instinctively dislike triage, especially when it comes to critically important items like medical care or justice. Nevertheless, we live in a world of finite resources, so some level of triage is not only likely, but inevitable. The question is whether we want to handle triage rationally and openly, or to back into a system that spreads out resources without any plan or purpose. Our current system of indigent defense exemplifies such a thoughtless division of resources. We have a system that claims to treat every case the same and to eschew triage, but actually underdelivers to everyone in the system.
Principles for Triage
Triage requires principles for rationing services. During battle or natural disasters, medics must identify and treat the gravely wounded before attending to patients with modest injuries. In doing so, medics must weigh both the severity of the patient’s injuries and the likelihood of improving the patient’s health. And they must make these judgments quickly and imperfectly, based on rules of thumb, past experience, and preliminary observations of the patient’s wounds and vital signs.
Similar principles should operate in criminal defense. To some extent, criminal practitioners do some trading off already. For instance, they rarely ask for expert-witness funding in less serious cases, in part because courts are stingy about authorizing it. But most of this triage is covert, inconsistent, and incomplete. Criminal defense lawyers for the indigent often have very high caseloads. As such, they are forced to pick and choose which cases to focus on. Many defense lawyers will choose among their cases rationally, by prioritizing defendants they think are likelier to be innocent or focusing especially on cases that might change the law and affect a whole class of defendants. Others may work more on the squeaky-wheel cases, or just choose based on the luck of the draw. And some lawyers may make the economically rational decision to do as little work as possible on all of their cases.
More candid triage could eliminate some of the vagaries of the current system by explicitly separating those cases that need the most attention from those that do not. It would also allow for cheaper substitutes in many cases, rather than the façade of defense lawyers across the board.
The seriousness of the crime charged is the simplest and most obvious dividing line. Felony convictions, which typically carry prison terms of a year or more, are by definition serious. Lengthy terms of imprisonment are devastating for defendants and their families. Inmates lose not only years of freedom, but usually their jobs and their houses or apartments. Prison breaks up or strains family ties, particularly when inmates are shipped off to far-off state or federal prisons rather than the county jail.
Felony convictions also carry grave stigma. Being branded a felon is shameful, and it may make the convict unemployable not only because of social stigma, but also from laws specifying collateral consequences of convictions. Many states’ laws bar felons from working at dozens of jobs: not only as doctors, lawyers, and cops but as plumbers, beauticians, and undertakers as well. Felons may also lose student financial aid, not to mention the rights to vote, hold public office, serve on a jury, or carry a gun. And noncitizens who are convicted of felonies can generally be deported, even if they are green-card holders who have lived here for decades.
Misdemeanors are as a rule less serious than felonies. Though states’ definitions vary a bit, generally a felony is punishable by more than a year in the state prison. A misdemeanor, by contrast, is punishable by a year or less in the county jail.
Nevertheless, some misdemeanors are serious because they carry collateral consequences comparable to those of felonies. For instance, even misdemeanor sex crimes may require convicts to register as sex offenders and to live far away from any schools, day care centers, parks, churches, and the like. (Because cities and suburbs are full of schools and churches, in practice residency restrictions force some misdemeanants to move out of their homes and neighborhoods.) And even misdemeanor drug convictions may make noncitizens deportable. So not only felonies but also misdemeanors carrying these weighty collateral consequences need to be treated as serious cases.
Therefore, we propose preserving the right to appointed counsel in all cases that are felonies, misdemeanors punishable by six months’ imprisonment or more, or misdemeanors carrying major collateral consequences. The nice thing about this dividing line is that it clearly separates two different types of cases up front, with little room for misunderstanding or discretion. An entire category of cases would be removed from the highly complex system we have now and pushed into simpler courts designed to be operated pro se.
This dividing line roughly sorts between complex and simple cases. Complexity, it turns out, goes hand in hand with a case’s seriousness. As a rule, a defendant has no right to a jury trial unless he is charged with a felony or a misdemeanor punishable by more than six months’ imprisonment. So six months of imprisonment is the line for whether the Constitution requires a jury trial.
Jury trials bring with them myriad procedural complexities such as jury selection, jury instructions, sidebar conferences, and strict enforcement of evidentiary rules such as hearsay. Lawyers and judges developed these complicated rules of evidence and procedure, and unsurprisingly, a lawyer is often necessary to understand them. Many of these rules are aimed at shielding juries from prejudicial information or guiding them in their decision-making. If we select petty offenses, we have a natural group of cases to simplify: those cases where we do not have to worry about shepherding or protecting a jury. Without a jury, we should be able to strip away much of what makes the system impossible to operate without lawyers.
Of course, a jury trial is an imperfect proxy for a case’s complexity: Some felonies are cut and dried, while some misdemeanors involve tricky mental states, defenses, or constitutional challenges. And even most felony cases result in plea bargains rather than jury trials (though the trial rights can prove relevant as plea-bargaining chips). But in processing large volumes of cases, the legal system must rely on proxies and checklists just as emergency rooms and battlefield medics do. As discussed below, these rules of thumb for automatic appointment of counsel could be supplemented with discretion to appoint counsel in other exceptional cases. And volunteer lawyers could also bring occasional test cases challenging unconstitutional patterns or practices and the like.
Another possible criterion for appointing defense lawyers is innocence. The worst thing our criminal justice system can do is to convict an innocent man, and we should focus our efforts on preventing these injustices. But it is hard to define ahead of time a category of innocent defendants. Police and prosecutors do not charge defendants who are obviously innocent; they have better things to do with their time than to pursue losing cases. And courts, knowing little about the evidence up front, can hardly discern innocence at the time of arraignment. Innocence does not amount to a judicially manageable rule for appointing counsel in the first place.
Innocence can, however, guide defense lawyers, courts, and legislatures in allocating extra resources among cases that already qualify for appointed counsel. In recent years, DNA testing has exonerated many hundreds of defendants, in the process exposing recurring sources of error: Eyewitnesses are often mistaken, particularly when identifying suspects of different races or when tainted by suggestive lineup procedures. Jailhouse snitches and informants frequently concoct incriminating stories in the hopes of monetary rewards or leniency in their own criminal cases. There has been a spate of recent cellphone tower cases where police and prosecutors have misused cellphone data to “prove” a defendant’s location at the scene of the crime. Forensic testing is sometimes misunderstood, tainted, or even occasionally fabricated. And suggestive interrogation techniques induce even innocent defendants to confess falsely, particularly if they are young, mentally retarded, or mentally ill.
These recurring sources of error should guide discretionary funding decisions: Public defenders can steer more of their limited funds towards these cases. Courts can be more generous in funding expert witnesses in such cases. And legislatures, prodded by innocence commissions, can earmark extra funds for investigating the factors that contribute to wrongful convictions, which is more politically appealing than funding indigent defense generally.
A last relevant criterion is whether the defendant cannot speak for himself. Youths are, as a rule, less able to explain their plight in court. The same is true of mentally retarded and mentally ill defendants. Non-English speakers cannot make their cases alone. While these kinds of defendants need some help, they may not need a lawyer (depending on the complexity and seriousness of their cases) as much as they need a guardian, social worker, or translator. The legal system needs to assist these defendants, but as we discuss below there are often other ways to do so.
Our bottom line, then, is that Gideon’s original scope was about right. Felony defendants need the guiding hand of counsel at every step to navigate complex criminal procedures and to check long sentences, stigma, and collateral consequences. The most serious misdemeanors, punishable by more than six months in jail, belong in the same basket, as do those that trigger deportation, loss of a job, residency restrictions, or sex-offender registration. Conversely, misdemeanors should not qualify if they carry only short jail sentences, suspended sentences, or fines.
Our proposal would slash the number of criminal cases that require lawyers across the board. There are just over a million felony convictions per year, but nearly ten times as many misdemeanors. Criminal justice resembles a pyramid, and serious misdemeanors appear to be dwarfed by those below the six-month threshold (though good misdemeanor statistics are hard to come by). In those states that have struggled to provide lawyers for misdemeanors, this six-month line would bow to reality. And states that have been appointing counsel for many misdemeanants would gain the freedom to concentrate their limited funds on cases that need them most.
Making the Cut: Beefing Up Felony Defense
Serious cases—those that would still require appointed counsel across the board—need many more resources. The savings from restricting Gideon’s breadth must go part of the way towards increasing its depth. Our adversarial criminal justice system depends on a zealous defense lawyer with the strength, time, and money to probe the other side’s case and build his own. To be effective, defense lawyers need more support.
First and foremost, they need manageable caseloads. A lawyer cannot represent his client vigorously and well without getting to know him, getting or figuring out the other side’s likely evidence, and collecting his own. That requires caseloads in the dozens, not hundreds, at a time. Lower caseloads remove the pressure to meet ’em and plead ’em, allowing professionals to gauge each case instead of presuming guilt. They also give lawyers time to elicit their clients’ stories and build their trust. Some defendants will admit guilt immediately and want to plead right away, but defense lawyers should not have to pressure them from the moment they first meet.
Second, defense lawyers need salaries commensurate with those of prosecutors. Leveling the playing field promotes fairness. And comparable salaries and caseloads help public defender offices to recruit and retain talented, experienced defense lawyers. We should favor public defender offices and move away from relying on low-bid, flat-fee contract attorneys. Courts can help to ensure that defense lawyers’ salaries, caseloads, and other resources are pegged to those of prosecutors. This gives defendants no unfair advantage, but simply treats them equally.
Third, defense lawyers need funding for paraprofessional support. Paralegals help with everything from client interviews to research to filing. Private investigators do much of the legwork, locating and interviewing witnesses, verifying alibis, and pursuing alternative suspects. Forensic, medical, and psychiatric experts probe weaknesses in the state’s case and can prevent wrongful convictions. All of these kinds of support mirror those already enjoyed by prosecutors, who can call on police, coroners, ballistics experts, and their own paralegals for the same support. Guaranteeing the same resources to defense counsel simply levels the playing field.
Fourth, defense lawyers need time. It takes time to understand the defendant’s story and the witnesses or other evidence that could corroborate it or challenge the prosecution’s version. That means time to locate and interview witnesses, pursue discovery from the prosecution, negotiate plea bargains, file motions, and prepare for trial. Defense lawyers who are overburdened and underpaid can hardly dig up evidence and challenge the prosecution’s version of events, so they have little negotiating leverage.
More vigorous defense lawyering can make a big difference at various stages. In discovery, defense lawyers can negotiate with prosecutors to turn over more information and can counteract prosecutors’ tunnel vision and jumping to conclusions. At bail hearings, defense lawyers can work out alternatives to pretrial detention and show how defendants’ strong community ties make them unlikely to flee. In plea bargaining, defense lawyers can ensure that clients understand the various collateral consequences of convictions and persuade prosecutors to offer plea bargains that spare defendants deportation, loss of a job, or exile from the family home. In pretrial motions, defense lawyers can test the legal sufficiency of the police investigation and the prosecution’s case. And before and at trial, defense counsel can highlight alternative culprits and weaknesses in the prosecution’s case.
All of these stages are sufficiently complicated and fraught to ensure that defense lawyers can make a real difference in a substantial fraction of serious cases. That sometimes means getting a dismissal or acquittal for a client who may be innocent; more commonly, it means ensuring that a defendant’s punishment is commensurate with what he deserves and what similar defendants generally receive.
Simplifying Misdemeanors and Violations
There is room to debate how many months of actual imprisonment should trigger an automatic right to appointed counsel. A weekend in jail by itself is unlikely to disrupt someone’s whole life, so the current rules requiring appointed counsel for any actual imprisonment and even suspended sentences are overbroad. But a week or two in jail can cost someone his job; a month or two can cost someone his apartment and strain his family; three or six months may cost someone his house. Wherever one draws the triage line, whether at two weeks, one month, or six months’ imprisonment, some cases will not make the cut. Appointing lawyers is one way to promote access to justice, but there are other, cheaper ways to do so. We should apply some of the ideas already explored for civil justice to minor criminal cases as well.
Legislatures should create lawyer-free courts for cases below the seriousness threshold. In many traffic courts, police officers handle cases rather than prosecutors. In some small-claims courts, both sides must represent themselves without lawyers so as to ensure a level playing field. Just as the increase in criminal lawyers over the nineteenth century bred complexity and made defense lawyers essential, so excluding lawyers or greatly restricting their role would help to simplify matters and reduce the need to appoint them. For some kinds of cases, the victim could appear, giving him the added benefit of having his day in court.
These courts could abolish or greatly simplify their rules of procedure and evidence. Because there is no right to a jury trial in these cases, there is much less need for rules of evidence and procedure to keep hearsay and the like out of the jury’s hearing. As it is, very few minor cases currently involve motions, legal research, or fine points of law. For the most part, the issues are who did what, who saw what, and who deserves what punishment. These issues of historical fact and blameworthiness involve storytelling that does not require legal training.
When litigants struggle to address the salient issues, the judge can take the lead by asking questions to establish defenses or the elements of the crime. In every criminal court in America, there is already a licensed lawyer who is an expert in the applicable law and well versed in the elements of crimes and defenses. That person is called the judge. Instead of proceeding as a neutral arbiter between two represented parties, the judges in these new misdemeanor courts should imitate their colleagues in traffic or small-claims courts: They should explain the process briefly to the litigants, shepherd the cases to completion, and question all of the witnesses to establish guilt or innocence or applicable defenses.
To compensate for laymen’s lack of experience and learning, judges could have probation officers interview and investigate the backgrounds of key witnesses, as well as collect documents and other evidence. Probation officers already do much of this before sentencing (and special masters may do something similar in civil cases); they would just have to do it sooner and more proactively. Judges could also prompt each side to think about possible witnesses and sources of evidence, such as nearby residents, security guards, surveillance cameras, and cellphone records, not to mention alibi witnesses such as defendants’ bosses and coworkers. They could actively oversee plea bargaining, much as mediators do in civil cases. Judges could appoint scientific and forensic experts in the sliver of cases that call for them. And they themselves could handle much of the questioning of witnesses.
These courts should also offer extensive pro se assistance. Dedicated court clerks could explain how cases proceed and answer questions, instead of turning defendants or victims away. They could offer written guidance, training sessions, and webinars. Fill-in-the-blank forms and software could help litigants to tell their own stories and focus in on any key disputed facts.
In addition, these courts could abolish or greatly loosen the unauthorized-practice-of-law rules applicable in them. Defendants could bring a friend or relative to help explain their stories. Translators would be available to help defendants with limited proficiency in English. Guardians could speak for youths, and social workers or therapists could assist mentally retarded and mentally ill defendants.
Note also that one could constrict the across-the-board right to appointed counsel while leaving judges discretion to appoint counsel for exceptionally complex cases. But only a fraction of misdemeanors are likely to qualify or benefit much. Run-of-the-mill cases often have little for lawyers to do. That is why criminal justice professionals may refer to low-level violations as “disposables” and give them cookie-cutter treatment. Insisting on lawyering for every one of these cases is a mirage.
Finally, one can even envision forms of e-adjudication. One of the simplest advantages of current technology is the ability to shift information gathering across time and space. Right now, criminal courts require all the players (defendant, witnesses, police officers, prosecutors, defense lawyers, etc.) to appear at the same time and place for hearings or trials. Typically, there is more than one case per day set at that same time (and often as many as a hundred or so in a first-instance court), so all of the players in all of the cases for that day traditionally appear at the same time and then wait while the cases are handled in some order. Because everyone needs to be there at the same time, continuances are regular occurrences and witness/victim fatigue is the rule and not the exception.
In these less formal courts, we could use asynchronous eBay-style dispute resolution to work out the facts and plea bargains in most cases within a few days. Witnesses and defendants could upload statements or documents, and then a time could be set for a videoconference allowing for cross-examination. Rather than requiring misdemeanants, witnesses, victims, and the police to miss work for repeated court appearances, the players could submit evidence as they went on their own schedules. Misdemeanants could also avoid languishing in holding cells for months, awaiting appointment of lawyers or for the appearance of all the relevant parties.
FAQ pages could correct common misconceptions about supposed defenses that are legally invalid, narrowing issues down to factual ones. Results could be posted on public websites. For the fraction of cases that remain hotly disputed even after mediation, Skype video-conferencing, published on the Internet to allow public access, could further streamline matters, particularly for fine-only misdemeanors. Doing so would bring down the hassle, cost, and wasted time to the benefit of all involved.
E-adjudication carries definite tradeoffs and costs. One must be careful not to exclude the public from e-proceedings. Public oversight, through the right to a public trial, plays an important role in overseeing and checking courts and abusive police work. Proceedings need to be serious and dignified enough to give litigants their day in court. But misdemeanor courts are currently so hurried that these innovations might actually provide more of a hearing than many litigants get now. And a threshold of jail time for a live appearance in court could triage out the most minor cases, as we effectively do for traffic tickets.
Long-Term Effects
Changing the right to counsel would have static effects right now: It would immediately save money on low-level cases. But, over time, changing the rules would also have dynamic effects on the way other parts of criminal justice operate. The system’s many forces interact, and caseload pressures in one place hydraulically influence how prosecutors, defense lawyers, and judges do their jobs at other stages.
For instance, many crimes can be charged either as felonies or as misdemeanors: Think of charging a moderate theft as petty larceny versus grand larceny, or a bar fight as simple assault versus aggravated assault. Even the same charge can sometimes be a misdemeanor or a felony at the prosecutor’s or judge’s discretion. California lawyers call such crimes “wobblers.” In such borderline cases, prosecutors would have much say in whether to proceed in a traditional, adversarial criminal court or to let police officers handle them as misdemeanors in streamlined misdemeanor courts. They would thus have strong incentives to sort cases by their severity and need for additional resources. For those cases that involve little or no imprisonment or collateral consequences, prosecutors would have strong incentives to strike quick plea bargains to lower charges. For those involving repeat criminals or aggravated harm, both sides would have lawyers and resources to prepare more carefully, to ensure that tougher penalties are warranted. That would encourage prosecutors to engage in more thoughtful triage and sorting of which wrongdoers really need substantial jail time and collateral consequences.
There would also be a whole class of offenses that prosecutors and defense lawyers never see. Like traffic courts, a whole class of low-level criminal activity would be removed from our complicated and burdensome criminal procedures. These courts would also be natural places for experimentation, like the current trend towards drug courts or courts that emphasize alternatives to incarceration.
Another benefit of these reforms would be to alleviate the high costs that our overburdened system imposes on minor cases, particularly pretrial detention. It is shocking that many misdemeanants are detained without bail for several months while awaiting appointment of a lawyer or a court date. The pretrial detention often exceeds the likely sentence, pressuring most to plead guilty in exchange for time served regardless of whether they are guilty. That detention also costs many defendants their jobs and apartments. Streamlined misdemeanor courts could adjudicate cases more quickly, often shortly after arrest, without waiting for lawyers and the delays they commonly introduce. Thus, a simpler and swifter justice system would be a fairer one too: As the venerable legal maxim puts it, justice delayed is justice denied.
Lastly, as state funds grow tighter and the public becomes more aware of America’s extraordinarily high incarceration rate, particularly for young black men, there is increased public pressure to rethink American over-criminalization. There is a growing sense that prosecutors and police have too much discretion and that our laws make almost everyone a potential felon.1 The public’s revulsion at the militarization of the police also suggests that the time is ripe to rethink our approach to law and order. Our criminal system is one of those odd political areas where libertarians on the right and liberals on the left have a remarkable amount in common. The reforms suggested in this chapter could be part of a broader structural reform.
The Grand Bargain
Some caveats are in order. In our sclerotic criminal justice system, no reform is simple. This is especially true of trying to rationalize criminal-defense funding with a grand bargain, requiring many different actors to compromise. Critics will accuse us of conjuring up a pipe dream, as legislatures will be tempted to snatch the savings from misdemeanor cases rather than reallocating them to felonies. Nevertheless, it is worth exploring and working towards some sort of compromise.
If the scope of the right to appointed counsel were narrower, hopefully appellate judges would be willing to put more teeth into that right. Much of the problem with the right to counsel has been one of breadth versus depth. In steadily broadening the right to counsel’s scope, we have unwittingly caused judges and legislatures to water it down so as to avert overwhelming costs. Reversing that dynamic will not be easy, but it is possible. If courts can focus on the effectiveness of felony counsel, they should be more willing to put teeth into requirements to investigate, negotiate, and litigate. They might reverse more often if their rulings did not risk disrupting as broad a swath of convictions.
Drawing a bright line between felonies and misdemeanors, and treating felonies so much more seriously and expensively, would also encourage more legislative thoughtfulness about exactly what criminal behavior should qualify as a felony. Likewise, requiring the police to carry the laboring oar in misdemeanor court would discourage overcharging, since the officers themselves would be stuck prosecuting their arrestees.
This grand bargain would, however, be substantially more feasible and appealing than the broader efforts of Gideon boosters. Its narrower breadth frees up the funding for its greater depth. And the grand bargain’s emphasis on parity with prosecutorial pay, caseloads, and resources frames it as a matter of leveling the playing field as opposed to giving criminal defendants a handout. Finally, it is far more realistic than hoping for more from Gideon, because it openly allows for different levels of expense and safeguards based on the seriousness of the crime, instead of continuing to pretend that we can give everyone a Cadillac defense on a Yugo budget.