Form Over Substance in the Matter of Constitutional Criminal Procedure

Professor Deborah Ahrens’ June 12^th post details several of the problematic dynamics that are showcased in the NY Times account of Wood v. Allen.  As she aptly describes, the available record shows dramatic defects in the quality of Wood’s representation in a capital case, and those defects may very well be inherent in the structure of indigent criminal defense in many areas of the country.  While the Supreme Court has been reluctant to recognize the potential for inherent ineffectiveness in the system because to do so would embroil the Court in a policy and funding debate out of which it normally keeps, the unlikelihood of seeing a robust response from state legislatures firmly grounds her call for renewed exploration of judicially palatable alternatives.

To be sure, the disparities between resources committed to prosecution as compared to those committed to the criminal defense bar are well documented and, by any measure, enormous. 

Wood v. Allen and the structural challenges of criminal defense

I’ve been considering the Supreme Court’s decision last month to grant a writ of certiorari in Wood v. Allen.  As the New York Times reports here, an Alabama jury voted 10-2 in favor of death in Wood’s capital case, one vote shy of what Wood needed in order to live.

The Court’s decision to offer certiorari in Wood’s case is not particularly surprising; during the past decade or so, the Supreme Court has found that capital defendants have received ineffective assistance of counsel.  There are two things that I think are worth considering however – the court has been willing to start to think critically about effective assistance of counsel in the capital context, but not with respect to the overwhelming majority of criminal cases that are non-capital.  Is this because “death is different” and the Court affords capital cases more scrutiny, or because the quality of defense attorneys in some capital cases truly is, relative to what is needed, egregious?

Second, and more broadly, are there structural flaws in current systems of defense attorney provision that should make us consider the attorneys within those systems structurally deficient and distrust the outcomes they produce for clients?  What the Court has not considered – and what state and lower federal courts have been reluctant to consider as well – is whether in some areas, the provision of criminal defense services is so underfunded, overloaded, and otherwise insufficient that any given defendant is unlikely to be receiving effective assistance of counsel.

Constitutional Right to Counsel in Deportation Proceedings: The Attorney General’s Hesitation.

Attorney General Eric Holder’s vacation of his predecessor’s decision in Matter of Compean may signal an eventual shift in administration policy, but it has little jurisprudential impact.  While AG Holder reinstated the prior standard for proving ineffective assistance of counsel in deportation proceedings, he stopped short of actually declaring that there is a constitutional right to counsel in such proceedings, which are characterized as civil rather than criminal in nature.

In January of this year, former AG Michael Mukasey sought to eliminate any pretense of right to counsel by reversing the 1988 Board of Immigration Appeals decision in Matter of Lozada (19 I&N Dec. 637).  The Lozada standard, which Mukasey considered too forgiving for immigrants to warrant his reversal at the eleventh hour is this: