Criminal Defense Profession Research Paper

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A defendant’s right to legal counsel in a criminal prosecution is one of the most familiar of the Constitution’s due process protections. In 1963, the Supreme Court declared in Gideon v. Wainwright that

There are few defendants charged with crime, few indeed, who fail to hire the best lawyers they can get to prepare and present their defenses. That government hires lawyers to prosecute and defendants who have the money hire lawyers to defend are the strongest indications of the widespread belief that lawyers in criminal courts are necessities, not luxuries.

This research paper reviews the criminal defense profession. The first section reviews the historical origins of counsel in the English legal system, tracing its evolution into colonial courts. The history of the American legal profession is marked by the rapid changes of a nation that adjusted, over the course of a few generations, to political independence, frontier expansion, abolition of slavery, immigration, and the Industrial Revolution. The tiny legal profession of the 1700s grew rapidly during the 1800s and by 1900 had evolved into a stratified guild system that remains in place today. The second section describes the contemporary structures and characteristics of the criminal defense bar and examines how lawyers define their work and how they think about their clients. The third section considers means of measuring the quality of legal representation, comparing legal, occupational, performance-based, and client perspectives on effective (and ineffective) counsel. A substantial majority of criminal defendants are represented by publicly paid counsel, through a patchwork of state and local policies and programs; the fourth section describes the variety of these systems, maps the boundaries between public and privately retained representation, and reviews the empirical literature that compares the performance of lawyers working in these diverse settings. Two concluding sections explore the political context of criminal defense work and current and emergent challenges in defining the scope and appropriate roles for criminal lawyers in contemporary courts.

The Criminal Defense Profession In The United States

The Evolution Of Criminal Defense

Most of United States legal structure and doctrines were borrowed and adapted from the common law and practices of England. Medieval adjudication processes were governed by clergy (and attended largely to violations of religious laws), and the inquisitorial nature of those proceedings reflected faith in divine intervention to guide the hand of justice. But following the consolidation of English villages under William the Conqueror, law enforcement and prosecution increasingly targeted those who violated the King’s laws, not those of the church. A more secular and compartmentalized judicial system took root, staffed by appointed justices and eventually moderated by lay juries. While the origins of today’s adversarial and jury-based processes are not completely documented, it appears that the shift to formal adversarial procedures by the fifteenth century established the distinctive roles of prosecution (representing in either a private or public capacity the interests of the complainant) and defense lawyer (speaking on behalf of the accused).

However, lawyers’ access to the courts was more limited than their access to clients (Donahue 1964). English lawyers were formally recognized as practitioners at the Inns of Courts by the 1400s. But even when retained for a fee, their presence in the courtroom was limited and sometimes prohibited, in part due to fears that their participation would obscure, not reveal, the truth. In subsequent centuries, English custom wavered on the issue: common law tended to treat lawyers as important if not essential, but legislators and judges often did not. In 1789, the authors of the US Constitution rejected British ambivalence about the right to counsel when they drafted the 6th Amendment, establishing an unambiguous right to retain an attorney:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

Originally, the guarantee of assistance of counsel meant that counsel could, and should, be present at all stages in criminal proceedings in federal prosecutions. Later, this right was extended to state prosecutions, though many of the colonies had such a guarantee in place since the early 1700s. In principle, this history suggests the triumph of earlier English common law reasoning that counsel was an essential element of due process. Until the twentieth century, however, this principle coexisted uneasily with economic facts about American lawyers and defendants: the former were private businessmen, engaged in a for-profit profession, and the latter were often too poor to buy their services. There is scant historical evidence about the fates of defendants who went to court without paid counsel during the 1800s and early 1900s; one can only speculate that the legal services they received were perfunctory at best. Contemporary ideals about the right to counsel (regardless of ability to pay) did not take hold in the United States until the twentieth century (see, e.g., Smith 1919). A cascade of landmark cases established, at least in principle, the obligation of states to provide counsel in capital cases (Powell v. Alabama, 1932), felonies (Gideon v. Wainwright, 1963), many juvenile proceedings (In re Gault, 1967), and most misdemeanors (Argersinger v. Hamlin, 1972) (for a very useful review, see Drinan 2009).

When the Constitution was ratified, the American legal profession was small, and its practitioners were known more for scholarship than for their legal practice. This changed quickly, as populations grew, moved westward, and established settlements that were swiftly incorporated into new states. The need for legal advice and advocacy exploded during this era of rapid social change: lawyers were needed to settle property disputes, manage business deals, and of course defend miscreants and troublemakers. New villages and new statehouses also bred new opportunities for aspiring politicians, and quickly lawyering became not only a profitable profession for adventurous young men but also a path to public office, insofar as it provided courtroom opportunities for showcasing oratorical skills (Friedman 2007).

The barriers to entering the profession were low in the nineteenth century. In most states, after studying law with a local judge, a young man had only to earn the approval and certification of that judge to join the bar. This apprenticeship system began to fade in the mid-1800s, when attorneys began to recognize the value of more restrictive standards for admission to the bar. Within a generation, enterprising educators established law schools, advertising for students and institutionalizing the notion that formal education was requisite for practice. This development took a momentous turn in 1876 when Harvard reconstructed its law school curriculum, under the leadership of Christopher Columbus Langdell, to focus less on the practical issues of practice and common law understandings in favor of the “science” of precedent, jurisprudence, and legal logic. This educational model – still known as the Langdell method – quickly caught on in the curricula of new law schools. With a few adjustments, this model guides the standard 3-year degree program of today. This method did rather little to prepare lawyers for the reality of courthouse negotiations and client management, and even today most law graduates endure grueling post-graduation study programs to actually pass state bar exams. But Langdell left an important legacy: lawyers were thereafter honored with the academic status of Juris Doctor.

During the three decades following Langdell’s revolution, state bars began to establish educational requirements for admission to the bar. This move paralleled those of other professions (such as medicine) that sought to increase legitimacy and prestige by establishing higher standards for professional certification. By the 1920s, most states required passing a standardized exam to practice law (Friedman 2007).

By the early 1900s, the legal profession experienced another significant change that had implications for criminal defense practice: the field began to specialize and stratify in alignment with the social and economic status of clients. The solo general practitioner was gradually supplanted by firms that marketed their services to corporations, local businesses, and upper-middle-class families; their work involved handling contracts, taxes, probate, and other work organized around financial acquisition and planning. At the lower end of the status continuum stood clients whose legal problems tended to be immediate, unexpected, and problematic: family crises, injuries and accidents, and, of course, arrests and criminal charges (Heinz and Laumann 1994; Heinz et al. 2005). This trend has continued into the twenty-first century: research suggests that, with some important exceptions, lawyers who take on criminal clients occupy low rungs on the professional ladder, are less likely than others to practice in large firms, and are most likely to combine criminal work with other “personal plight” areas of law, such as personal injury.

Characteristics Of Contemporary Criminal Defense Lawyers

Americans are ambivalent about lawyers generally and criminal defense lawyers in particular. Shakespeare (Henry VI, Part 2) and, reportedly, Jesus had few kind words for lawyers (Book of Luke 11:46). One of the most prominent scholars in the field of legal studies recently published an academic treatise on the history of lawyer jokes (Galanter 2005). But Americans also idealize lawyers. Abraham Lincoln’s homespun oratorical skills were crafted in village courthouses and bought him enough political capital to become a presidential contender. In the twentieth century, fictional defense lawyers such as Atticus Finch and Perry Mason were heroic figures who resolutely confronted skeptical jurors and riled communities to represent clients who, though innocent, faced long odds. Today, law school has become increasingly expensive and entry-level positions more scarce, and yet law school applications and enrollment have inclined steadily over the past 50 years.

The most recent census data on employment reports that the nation has over one million practicing lawyers (excluding those who may hold law degrees but do not represent clients; Bureau of Labor Statistics 2011), a number that has doubled in three decades. But a contemporary census of the legal profession would provide only a partial picture of the criminal defense bar. This is in part because specializations are not uniformly recorded, in part because the mix of cases that lawyers accept varies greatly, and in part because there are few sharp lines between public defenders – full-time salaried attorneys representing the poor on behalf of the state – and attorneys who represent criminal defendants under less-structured programs, in combinations of publicly paid and privately retained arrangements.

Who are these lawyers, where do they work, and how do they view their clients? Private criminal defense work remains concentrated in small local firms. Over the past 50 years, the expansion of indigents’ right to counsel has meant that a large share of criminal defense cases that once went unrepresented or nominally represented by private practitioners is now in the hands of publicly paid attorneys. National data on practice settings indicate that lawyers who self-identify as legal aid or public defender attorneys constitute only 1 % of practicing attorneys, a small subgroup of the 6 % who begin their careers practicing any sort of public interest law (National Association for Legal Professionals 2006). Between 1980 and 2000, the percentage of all lawyers who worked in small private firms (of fewer than ten practitioners), where one might expect to find most private criminal defense work, has remained around 50 % (American Bar Association 2010).

The profession remains predominantly white: today only 5 % of practicing lawyers are African American, and 4 % are Asian; independent of racial identity, 3 % identify as Latino. In 2010, women comprised 32 % of the licensed bar (Bureau of Labor Statistics 2011), a percentage that has risen steadily since the 1970s as law school cohorts have become nearly 50 % female. Some have argued that a largely white, middleclass profession lacks the perspective to effectively represent defendants who are disproportionately low-income people of color, and a small body of empirical research suggests that lawyers in general, but particularly white lawyers, have lower expectations about the outcomes of cases of hypothetical black clients (see, e.g., Eisenberg and Johnson 2003).

Research also suggests that women and men differ slightly in their perspectives on the criminal defense work: men more fully embrace a strong due process orientation, and women are more likely to perceive moral dilemmas working with criminal clients (Siemsen 2004). But generally, interviews with criminal lawyers reveal higher levels of commitment to due process and opposition to punitive sentencing policies (Worden 1998; Ehrhard 2008). Contradicting stereotypes of co-opted public defenders, empirical studies report zealous advocacy orientations in this group (McIntyre 1987; Emmelman 1996).

Defining Effective Counsel And Performance

The Supreme Court of the United States has held that the Sixth Amendment requires not only that counsel be present but also that it be “effective.” In the words of Justice O’Connor in Strickland v. Washington (1984), it is not enough that “a person who happens to be a lawyer is present at trial alongside the accused.” This question has been addressed not only by the courts but also by professional associations who have developed standards and guidelines on what it means to provide counsel effectively. Empirical work, meanwhile, has examined some of the assumptions which underlie these standards – in particular that effective representation will result in more favorable outcomes for the accused.

Constitutional/Appellate Court Definitions

Writing for the majority in Strickland v. Washington, Justice O’Connor specified a two-pronged test to determine whether the assistance of counsel the defendant received had been ineffective.

First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.

The holding in Strickland was intended to set a high standard for claims of ineffectiveness. It stifled defendant claims by stipulating that courts should generally defer to the judgment of trial attorneys’ strategic reasons for presenting (or not) certain defenses. In Washington’s case, the trial attorney had chosen not to enter mitigating evidence because of the danger that other prejudicial facts would be brought to light, and the Court held that this constituted a “strategic” exception. Moreover, the facts omitted were, in the opinion of the Court, insufficiently likely to have changed the verdict in the case. Accordingly, the appellant was held not to have met either prong of the test.

The court returned to the question of when a decision might reasonably be considered “strategic” in Wiggins v. Smith (2003). The defense attorney was held to have erred by ceasing his search for mitigation evidence on the basis of a “strategic” focus on proving the client’s innocence. The court cited the capital defender standards promulgated by the American Bar Association, assessing the attorney’s conduct against the standard of “prevailing professional norms,” and ultimately concluded that his failure to investigate represented “inattention” rather than “strategy.” Strategic decisions to cease to pursue mitigation avenues must not precede, but should only follow full investigation.

Professional Definitions

Professional groups such as the American Bar Association and many state bars have compiled lists of standards and performance guidelines that define effective representation. The National Study Commission on Defense Services, commissioned by the US Department of Justice, composed its Guidelines for Legal Defense Systems in the United States in 1978. These have since been followed by a range of other sets of standards and guidelines, some of which were compiled in 2000 as the Compendium of Standards for Indigent Defense Systems. Both the ABA and the NLADA now maintain online libraries of professional standards devoted not only to defender practice and system design but also to specific practice areas (such as juvenile or capital representation) and specific practice elements (such as the need to advise clients of collateral consequences of conviction such as employment restrictions and placement on offender registries, and the need to sustain a healthy attorney-client relationship).

Professional standards stipulate a variety of practice characteristics ranging from attorney qualifications, client interactions, case preparation methods, and contact with other court professionals. In addition, standards have been developed concerning the organization of defender systems themselves. These have focused less upon the work defenders do and more upon the systemic burdens under which they practice: standards of supervision and training, resources available for the investigation and preparation of cases, and, most prominently of all, caseloads.

Performance-Based Definitions

Empirical studies of the quality of indigent defense tend to focus on the observable characteristics of cases which are understood to represent quality in defender services, as defined by the legal and professional standards aforementioned. Examples include the extent of motion practice, early intervention by counsel, the time spent by attorneys preparing cases, investigative work, client-attorney interactions (their number, duration, and quality), and the provision of ancillary services, such as assistance with civil legal matters or access to social work services (e.g., Flemming 1986).

Researchers have also gone beyond the question of whether attorneys adhere to the procedures stipulated by professional standards and have attempted to find out if these better practices produce better case outcomes for clients. These outcomes are related directly to defendants’ fates: convictions, sentences, bail decisions, time to adjudication, days spent incarcerated, diversion into alternative programs, and success following reentry.

Research findings on this question are inconsistent, likely reflecting the problems of sampling and measurement in court data. Nationally representative samples of defendants are hard to come by, and studies of indigent defense case outcomes are typically conducted on samples compromised by selection bias (such as incarcerated populations) or limited to the operations of specific parts of the courts system (such as federal courts) or types of cases (such as homicides). With these caveats in mind, researchers have repeatedly investigated two questions which tap common assumptions about publicly funded defenders: first, whether defendants retaining attorneys privately do better in court than those represented by publicly funded lawyers and second, whether institutional providers employing salaried attorneys (such as public defender offices) obtain better outcomes than those that make ad hoc assignments of private attorneys paid in some other way.

In contradiction to the stereotype that publicly funded defenders provide inferior services to privately retained ones, most studies have found little or no support for this thesis after differences between clients and their cases are controlled (Hartley et al. 2010). Publicly funded attorneys may obtain improved outcomes for clients in certain contexts, particularly when considering intermediate case outcomes such as pretrial release or charge bargaining in isolation from sentencing itself (Hartley et al. 2010). Hanson et al. (1992) found a lower likelihood of incarceration for defendants retaining private attorneys, but no difference in other outcomes. Nevertheless, the presumption that private attorneys, who may spend significantly more time on cases than publicly funded ones, obtain better outcomes for their clients has little basis in empirical evidence.

The absence of findings of differences in the quality and effectiveness of defense attorneys has prompted speculation regarding other possible differences in the working environment or methods of publicly funded counsel in comparison with privately retained attorneys. It may be the case that publicly funded attorneys, because of their frequent appearance in court, develop working relationships with other court actors which allow them to work to their client’s advantage through informal means where traditional adversarial ones fail them. Flemming et al. (1992) observed the ways in which defenders necessarily formed and maintained working relationships with judges and even prosecutors. If this is the case, “repeat players” in the private bar would demonstrate similar collegial behavior and positive results for their clients.

Within public defense systems, comparisons of public defender offices with systems that rely on the private bar have also found few differences in case outcomes (Houlden and Balkin 1985). Some exceptions exist for specific demographic groups (Hartley et al. 2010), and several recent, well-designed analyses have established significant evidence of the detrimental effects for defendants of representation by assigned counsel in comparison to institutionalized providers in the context of the federal courts (Iyengar 2005) and among felony defendants in urban counties (Cohen 2011). The sources of such differences remain a point of controversy, though aside from the infrastructural advantages that public defender offices may provide, authors such as Iyengar (2005) also point to differences in the attorneys that each system attracts, and differences in the ways the operation of market forces change the composition of each. Though incipient, this research suggests that different systems may attract different defenders, who in turn obtain different outcomes for their clients.

Clients’ Perceptions

Beyond examining case outcomes, other scholars, beginning with Casper (1971), began asking defendants themselves what they thought of their lawyers. These studies revealed that client perceptions are molded not only by the favorability of sentencing decisions but also by the interactions clients had with their attorneys. Predictably, defendants’ skepticism – their common assumption that appointed lawyers are at best incompetent and at worst indifferent state lackeys – presents particular obstacles in building the trusting relationship presumed to be required for effective defense ( Flemming 1986). Notwithstanding the well-intentioned nature of the advice defenders frequently offer their clients, the failure to couch that advice in a reassuring client-attorney relationship dulls the appreciation that defendants might otherwise be expected to feel for their attorneys.

Reassuring defendants that their attorneys are motivated, interested, and honorable is more than a matter of wanting to make clients happy, however. Researchers have also adduced evidence that the procedural fairness of court practices has other significant benefits. Defendants who are satisfied that their verdicts were arrived at via fair processes are more likely to accept their sentences, feel more confidence in criminal justice generally, and may be more likely to comply with its mandates (Casper et al. 1988). Attention to client satisfaction, therefore, is not merely a matter of pleasing consumers. It has been sustained by concern with assuring that defendants themselves – many of whom will eventually reenter society – regard the criminal justice system positively and are able to reintegrate successfully into society.

Attorney-client interactions and their consequences for defendants’ evaluations have come under considerable scrutiny, and research suggests that attorney and client expectations about what constitutes effective service are at odds. Quite apart from gaining clients’ confidence, an obstacle which state-appointed attorneys find difficult (Flemming 1986; Casper 1971), attorneys vary in the style and degree of attention paid to the client and their willingness to involve them in decision-making. More controversially, some scholarship has also sought to demonstrate the ways in which attorney decisions may be guided by factors other than client interests, such as the fee structure by which they are reimbursed (Tata 2007). Accordingly, the extent to which attorneys are able to foster positive client experiences and the possibility that structural factors such as the source of their reimbursement act as potential impediments to effective representation remain issues of concern.

Criminal Defense As Public(Ly Funded) Function

The immediate result of the 1963 Gideon decision was to create a massive demand for publicly provided representation. At times this demand has overwhelmed some states and communities. The retroactive nature of the decision meant that many inmates were retried or, when this proved impractical, simply released (Eichman 1966). Quickly, however, a nationwide patchwork of defender providers was created.

Though data on the immediate implementation of the Gideon mandate are scarce, the earliest national survey revealed that by 1972, 16 states had developed statewide programs with the remainder delegating the responsibility for defense provision to counties and localities (Benner and Lynch 1973). State financial support for these systems also varied, and in 1975, states funded just 41.5 % of defense costs, leaving the remainder for localities to supplement (Sourcebook of Criminal Justice Statistics 1977). In the decades since the 1970s, the general trend has been toward the centralization of both organizational and funding responsibility for defender services within states. Recent data show that these trajectories are far from complete, however, with a total of 22 states using statewide systems in 2007, funding an average of 66 % of system costs in 2008 (Langton and Farole 2010).

National estimates on uptake of publicly funded defender services are scarce. Eligibility criteria themselves were left to the discretion of providers, with Gideon and subsequent decisions stipulating only that the defendant be “too poor to hire a lawyer.” As a result, estimates of indigence among the population of defendants are bedeviled by a lack of standardization, as well as a more fundamental lack of systematically collected data. Moreover, states vary in their definitions of the right to counsel: in some, the right has exceeded that mandated by the Supreme Court through state statutory revisions and case law. Most estimates suggest, however, that the proportion of defendants using free legal services averages in the range from 65 % to over 80 %, depending on the type of case.

The freedom afforded states in determining the manner of delivery for defender services has resulted in a variety of structural approaches to service provision both among and within states. Historically, public defense was typically provided through informal ad hoc assignment of counsel, frequently – though not always – with little attention to attorney qualifications or compensation. These traditional “assigned counsel” systems made no meaningful distinction between private and publicly funded lawyers, since most defenders mingled publicly funded assignments with cases on private retainer. Indeed, the term “public defender” did not always connote payment from the public purse, but also applied to lawyers working pro bono to “defend” the “public.” The institutionalization of states’ obligation to compensate counsel led to the necessity of systematized billing processes for attorneys as well as new bureaucratic structures with new responsibilities: assigning attorneys to cases, assuring they provided representation, and paying them for their services. This formalization brought the opportunity for greater oversight and systematization in the provision of defender services through assigned lawyers, though the extent to which these systems have expanded beyond simple billing functions to oversee quality in service provision is highly variable.

Among these evolving assigned counsel programs, a now-familiar approach gained popularity: the Public defender offices are permanent offices staffed by salaried attorneys who provide legal representation in all cases assigned to them. Public defender offices were not uncommon in large cities by the early part of the twentieth century. Public defender offices seem to promise economies of scale, which probably explains why they are concentrated in urbanized areas (Worden and Worden 1989). Staff in such offices may be full or part-time and may or may not be permitted to retain private practices in addition to their work as state or local employees.

Concern with efficiency has led to yet a third approach: contracts with attorneys or law firms to provide representation. The terms of such contracts may vary, but the approach is distinctive from the archetypal assigned counsel or public defender approaches because attorneys contract with local governments (typically counties) to handle all or a percentage of the jurisdiction’s caseload, during a set period of time. How they manage that caseload is up to them; how local governments choose a bidder is up to those governments. Contracting offers mixed benefits. A bidding process may reduce costs for localities, though the consequence of that process may be that quality is compromised, particularly if the contract offers a flat fee for services regardless of case complexities. In State vs. Smith (1984), a low-bid contract for the provision of defense services in Mojave County, Arizona, was struck down on the basis that selecting a provider on a pure cost basis was insufficient to guarantee effective assistance of counsel. Moreover, as Worden (1993) showed, many counties are too small to generate an effective bidding process for contracts, so contracting can actually increase rather than decrease costs. Nevertheless, contracting has become increasingly popular, resulting in considerable interest in the processes of bidding and contract composition which avert the harm to quality that might result.

A single provider of defender services is generally insufficient to provide all legal representation in a jurisdiction, however, because cases with multiple defendants present conflicts of interest. Except in the case of traditional assigned counsel systems (where each defendant can be assigned to a different lawyer from the pool), institutional defender systems need backup systems. Rules for the determination of conflicts differ, but in general a provider cannot provide representation to a defendant if it has previously represented either a codefendant or a witness in the case. Backup systems generally come either in the form of assigned counsel plans, additional institutionalized “conflict defender” offices, or firms or attorneys contracted for the purpose.

The Political Context Of Criminal Defense

Crime and justice policy is, by definition, the product of political processes, and the organized bar, legal advocacy groups, and individual attorneys have been at the center of many reform debates. The American Bar Association (and many state and local associations as well) has advocated for changes in legal processes (including, but not limited to, higher standards for criminal defense of the poor). In many states, public and nonprofit organizations provide assistance to defense attorneys, notably in capital cases and appeals. Organizations such as American Civil Liberties Union, The Innocence Project, the National Legal Aid & Defender Association, and the Death Penalty Information Center draw heavily on the contributions and experience of lawyers as well as legal scholars. Many such groups provide or support provision of legal representation in individual cases and also actively lobby for policy changes in substantive and procedural law.

Most landmark changes in criminal procedural law have resulted not from lobbying and legislation, however, but from litigation. The due process revolution was waged by criminal defense lawyers representing convicted clients in high-level appeals, and these lawyers were motivated by the opportunity to change policy, typically in the direction of greater due process protections or equality of treatment for defendants. Scholars and professionals refer to this sort of work as “cause lawyering” or “impact litigation.” Clearly some of these initiatives have made lasting changes in operational definitions of justice and fairness, and indeed, some experts argue that litigation is a more promising strategy for effecting legal reforms than efforts in legislatures. However, others caution that while legal rulings can dramatically redefine defendants’ rights, courts have very limited enforcement powers, and litigants (and their lawyers) have little incentive to ensure that sweeping rulings are, in fact, transformed into routine practices that change how police, prosecutors, judges, and juries do their work (Scheingold 1974; but see also Scheingold 2004).

More generally, the last four decades witnessed a sharp increase in adjudication and sentencing in the aftermath of a real increase in crime rates during the 1970s and 1980s and a much more prolonged increase in punishment into the current century. Scholarship on the causes of the latter (and on variability across states and communities as well) suggests not only increasing (and sometimes overheated) awareness of crime as a policy problem but also social, economic, and cultural differences in how political entities responded to crime and justice issues (Davies and Worden 2009). The work of criminal defense lawyers is shaped by the legal contexts in which they practice. But while researchers have investigated the consequences of changing sentencing codes and caseloads for law enforcement and corrections, they know little about how prosecutors and defense lawyers have adapted to these shifts.

Current Issues And Controversies

Today’s lawyers face challenges and controversies that may redefine the scope and the standards for their work with criminal defendants. Some of these are structural: at what point is representation required? Others entail revisiting the standards for effectiveness (or ineffectiveness) of counsel. New (or expanding) clienteles, defined by charges and by personal characteristics, call for new expertise and skills. In a very different vein, some argue that recoding some minor crimes into violations or civil offenses might dramatically reduce the need for lawyers, privately paid or publicly provided. Finally, defense lawyers confront new ethical and professional questions as alternative courts recast their traditional identity as adversarial champion. The examples here illustrate some of these challenges.

When Does The Right To Counsel Begin And End?

The question of when the 6th amendment right to counsel applies to cases is answered differently, in law and in practice, across jurisdictions. Counsel at trial is unquestioned, but there are legal and practical disputes about whether a defendant needs, and is entitled to, counsel in juvenile court, at arraignment and bail hearings, and in appeals (Worden et al. 2010–2011). Attorney General Eric Holder recently called for close scrutiny of court practices and customs that oblige defendants to make court appearances, possibly plead, and have bail set without the benefit of counsel. Policies on post-conviction review of cases that hinge on DNA evidence, and cases that involve sex offenders facing civil commitment proceedings, vary across states; as such petitions become more numerous, expectations for legal assistance may increase.

Revisiting “Effective Counsel” In The Context Of Plea Negotiations

As noted above, “effective” counsel has historically been defined, simply, as the absence of egregiously “ineffective” counsel, and the bar for a ruling of ineffective counsel has been placed rather high. A pair of recent Supreme Court rulings signals a shift in this thinking, however. In Laffler v. Cooper and Missouri v. Frye, both decided by 5–4 votes, the court established that standards of effective representation should include judgments about the quality of lawyers’ advice about rejecting plea offers in cases that ended in trial convictions.

New Clients With New Problems

Today’s defense lawyers face a more complex tableau of indictments, sanctions, and evidentiary questions than did their predecessors. While the last generation’s draconian drug laws are slowly being retracted, and street crime rates have fallen dramatically, today’s clients present a new mix of social, cultural, and legal problems. Law enforcement’s focus on illegal immigration adds a layer of complexity and anxiety to some defendants’ cases – an aspect of representation given special urgency by the Court’s recent Padilla v. Kentucky (2010) decision requiring that immigrant defendants be counseled on the immigration consequences of a guilty plea. The last decade’s construction of new sex offender laws carrying collateral sentencing consequences – registries, residency restrictions, and civil commitment – raise the stakes for lawyers negotiating for their clients’ futures. Lawyers (and prosecutors) face new questions about technology, evidence, and admissibility as it becomes easier to inadvertently leave an electronic trail of communications, travel, or financial transactions (and also, of course, easier for authorities to follow those trails; see, e.g., United States v. Jones (2012)).

Reformed Legal Codes And Fewer Lawyers?

The cost of providing lawyers in minor cases is causing some states to revisit the question of whether they are necessary at all. In reforms referred to collectively as “reclassification” or “decriminalization,” minor offenses such as sleeping in a public park, low-level harassment, or, most conspicuously, marijuana use have been reduced to the level of civil infractions without the possibility of jail time. (Absent a threat of incarceration, the Supreme Court does not compel states to provide legal counsel.) Reclassification is often accompanied by elimination of other legal consequences of conviction – for example, by providing assurances that the case will not create or add to one’s criminal record. Some believe that reclassification saves public tax dollars even as it reverses the criminal stigmatization of minor offenders. At its grandest, the move toward reclassification is seen as an attempt to begin to undo some of the overbuilt, “industrialized” aspects of the criminal justice system that sprang up in conjunction with the rise in crime and incarceration since the 1960s. This initiative also taps into the sentiment that lawyers, and indeed courts, may be unnecessary for the resolution of many minor infractions and disputes.

New Models Of Adjudication And Legal Representation

Specialized courts (sometimes called therapeutic courts) are designed as rehabilitative alternatives to the adversarial adjudicative process. Since the late 1980s, drug courts, domestic violence courts, and mental health courts have proliferated. While they vary in many ways, they have in common a commitment to addressing defendants’ social, psychological, medical, and economic problems as a route away from recidivism. A central tenet of most of these courts is the necessity of a collaborative effort on the part of defendants, judges, social services, prosecutors, and defense lawyers. These experiments offer the appealing promise of destigmatization, reform, and resource recovery (since rehabilitated offenders will commit fewer future crimes and require fewer criminal justice resources to process and punish). However, they also create new professional and ethical questions for defense lawyers. A spirited defense of a client’s innocence or an attack on a prosecutor’s evidence is hardly the fitting prelude to this sort of diversion and treatment; indeed, a guilty plea and, typically, some evidence of remorse are prerequisites for these alternatives. These specialized courts have typically identified particular psychological and medical problems (addiction, mental illness) or specific offenses (domestic violence, prostitution). The newest experiment in this genre is the veterans’ court, which defines the experience of combat as a special condition meriting specialized treatment.

Conclusions

From its beginnings as a modest and tradesmanlike craft, defense lawyering has become much more than only a profession. It has come to stand for both the worst and the best of the law: the morally questionable imperative to provide criminals with expert assistance in avoiding conviction and punishment, on the one hand; and, on the other, some of the Supreme Court’s finest prose on the need to equalize access to justice for rich and poor, state and citizen, alike.

This ambivalence of idealism mixed with the appearance of disreputability continues to characterize the defense bar to this day. In order to pursue a case to the highest court and secure a significant policy victory, lawyers must be prepared to subject a single client to years of litigation – instead of simply encouraging them to plead guilty and dispose of their matter efficiently. Advocates argue that defense reform will not be complete until every criminal defendant is afforded the full criminal trial to which they are nominally entitled. But of course, lawyers stand to benefit a great deal from expansion of the right to counsel and guarantees of more generous compensation. What results, therefore, is a continuation of old arguments over how much defense counsel is really necessary to justice: whether it serves clients or causes and whether it protects the guilty or the innocent. These arguments conjure up incongruous images: on the one hand, courageous Atticus Finch in a hostile courtroom, and on the other, florid fast-talking lawyers promising fast relief for drunk driving arrests on late-night advertisements.

One reason that these old arguments have been so hard to resolve is that defense lawyering, unlike many other elements of the criminal justice system, has not been subjected to significant empirical scrutiny over its central claims. Police organizations, for example, have sought sophisticated approaches to proving their effectiveness; offender treatment programs are regularly subjected to performance evaluations. But the defense bar has engaged in far less self-examination, and outsiders get few opportunities to evaluate lawyers’ work.

Furthermore, the realities of criminal practice are more complex than most people, including lawyers themselves, may acknowledge. Lawyers’ place in adversarial adjudication is straightforward enough: zealous defense of clients’ interests, which usually means strategic pursuit of acquittal or minimal punishment. But lawyers usually operate in the more complex context of plea negotiations and in a court system that has become increasingly punitive, even as (especially recently) alternative adjudication systems, diversion programs, and treatment options have proliferated. Serving clients’ “best interests” has become more complicated.

Defense lawyers have a unique interest in protecting their clients from the cycle of cumulative disadvantage – the hardships that start with the stigma of arrest, accrue with conviction and sanctions, and are cemented when reintegration and rehabilitation fail. Simple structural reforms – such as organizational changes which assure counsel reaches a defendant early or reclassification measures which assure defendants are not detained needlessly – can make a difference in whether a defendant is able to go home, keep a job, maintain custody of children, and even reintegrate into society in the long term. Broader awareness of these changes (and evaluations of their effectiveness) will not resolve historical, cultural, and economic dissension over defense lawyers’ roles. It might, however, emancipate lawyers from simplified ideological prescriptions about their work and lead to a more nuanced and realistic public understanding of their work.

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