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The Right to Counsel in a Neoliberal Age


Zohra Ahmed (@zohraraheem) is Assistant Professor of Law at the University of Georgia School of Law.

When I was a public defender in New York City, I also helped run a court watching program. Volunteers, most of whom were white, college educated, and witnessing arraignments for the first time, would often ask me to explain why the most important person in the courtroom, the accused, remained virtually silent throughout proceedings. Similarly, many expressed surprise at the speed of proceedings. How could someone’s first court appearance, which so directly affects their entire life, be so hasty, so impersonal? One volunteer told me of a defendant who dared to speak up. To her dismay, the judge, then the defense counsel, both rushed to hush him. I explained that they were probably trying to protect the defendant from making an incriminating statement in front of the prosecutor. But my explanation did not satisfy. It seemed as if protecting defendants from self-incrimination was the lawyer’s paternalistic ruse to keep a defendant quiet and steamroll over their preferences. Is the solution then to make criminal courts and lawyers more receptive to the voices and choices of people accused of a crime?

Advocates and scholars have argued in favor of such reforms. We’ve also witnessed the criminal defense bar undergo an internal reformation: Today, new public defenders across the country are trained to be client-centered, to invite clients’ participation, and to defer to clients’ preferences. Going one step further, bar associations, public defense organizations, and clinical education programs have supported litigation that asks the Supreme Court to encode client-centered lawyering into the Constitution. When lawyers ignore clients’ wishes, they say, that ought to violate the Sixth Amendment. If we are to take the right to a defense seriously, then the Constitution ought to defer to a defendant’s vision for their own defense. Rights are personal, after all, and courts cannot presume to know better than the person facing prosecution.

Over the past forty years, the Supreme Court has become increasingly responsive to these arguments, repeatedly resolving criminal appeals and habeas petitions by deferring to apparent expressions of the defendant’s choice. In numerous cases where defense lawyers prevented clients from asserting themselves in court, the Supreme Court has ruled for the defendant. Defendants have a constitutional right to decisional autonomy over their representation. Sounds good, right?

In a recently published piece, I argue that the value to defendants of encoding this kind of autonomy in the Sixth Amendment largely depends on the kinds of choices the Court recognizes, and what those choices actually deliver. No one disputes that attorneys should collaborate with their clients to understand their concerns and aspirations. But encoding defendant choice into constitutional rules without challenging the underlying conditions that limit and structure such choices will likely deepen the very inequalities that criminal law already exacerbates.

Rules governing the right to counsel have not always been oriented towards facilitating defendants’ choice. Originally, the Supreme Court intended the constitutional right to counsel as a means to mitigate inequalities in the courtroom and shield defendants from the coercive power of the carceral state. Between 1932, when the Supreme Court first recognized a right to counsel (Powell v. Alabama), and 1963, when the high court declared a categorical right to counsel in all state felony prosecution (Gideon v. Wainwright), the justices developed a body of jurisprudence that tried to correct for the disadvantages created by classism, ableism and racism in criminal trials. Granted, anxieties over budgetary constraints and economic redistribution prevented the Court from ever laying out a plan for universal access to quality representation (Argersinger v. Hamlin). Nonetheless, when the Court received cases where the government claimed the defendant had waived a right to counsel, it also inquired into whether the defendant had the ability to meaningfully represent themselves. Although it recognized a right to dispense with counsel, the Court maintained a high bar for waivers of counsel in court. In its quest to guarantee fair trials, the Court embraced a protective role toward otherwise vulnerable criminal defendants.

This commitment to equality, however compromised, eventually dissolved. Although the path towards this change was not linear, the juridical landscape began to shift by 1975. Starting in 1975, the Court made it easier for defendants to waive the very rights it had developed over the previous forty years to protect the legitimacy of criminal proceedings. Before 1975, the Court justified waivers only as exceptions to the rule. Now the Court moved to permit waivers whenever defendants requested them. According to the Court, as expressed in its body of rulings, defendants could better navigate criminal proceedings without the heavy hand of prophylactic rules or lawyers. In a series of cases, the Court recognized a defendant’s right to go to trial without a lawyer (Faretta v. California); to insist that a lawyer not present exculpatory evidence (Schriro v. Landrigan); to waive legal representation even where there are doubts as to whether the accused can effectively represent themselves (Godinez v. Moran); and to insist their innocence at trial, in the face of overwhelming evidence of guilt and questions regarding their competency. In each of these cases, the Court’s overwhelming concern was not whether those choices equalized the field between the defense and prosecution or between poor and rich defendants. Rather, its concern was to afford defendants the chance to customize the terms of their representation, including dispensing with legal counsel entirely. Trial would now offer the opportunity for self-determined expression. In McKaskle v. Wiggins, the Court explained that for the defendant the “right to self-representation plainly encompasses certain specific rights to have [the defendant’s] voice heard.”

In the Court’s view, the Sixth Amendment required nothing more or less than unfettered choice to waive counsel and proceed pro se. Choice became the central concern. When judges and legislators have sought to insert protections requiring that waivers reflect deliberative, authentic thinking before allowing a defendant to proceed pro se, the Court has refused, basing its refusal in alleged respect for the individual’s dignity.

But the circumstances under which people accused of crimes receive this decisional autonomy deserve closer examination. In the string of cases where defendants have asked for greater choice, they have done so for specific reasons: they don’t trust their lawyers, they don’t trust the legal process, or they are navigating the criminal processes with a disability that is being ignored. Take Faretta v. California, the case that established the right for persons accused to represent themselves at trial. Faretta did not initially want to face the prosecution alone; he merely wanted to pick his own lawyer and did not want the public defender appointed to his case because he knew their office was severely underfunded and its lawyers overworked. When the trial court denied his first request, he asked to represent himself. That second request was denied too. The trial court forced him to accept the lawyer appointed to his case. When the Supreme Court reversed, it recognized only his right to represent himself — not his right to choose a lawyer or to demand that the public defender office be properly funded. In other Sixth Amendment choice cases (Schriro v. Landrigan and McCoy v. Louisiana), the person accused of a crime wanted to pursue a trial strategy at odds with counsel’s advice. But counsel’s refusal to adhere to their client’s wishes in these cases was based on their judgment that their client possessed an unaddressed mental disability. That is, the lawyer disagreed with the client’s chosen defense strategy not simply because they thought it would likely fail, but also because they feared their client’s strategy stemmed from delusional belief or neurocognitive trauma. In such cases, lawyers worry their clients are unknowingly signing up for their own execution. Indeed, many of the examples I have discussed are capital cases.

Through its jurisprudence of choice, the Supreme Court disclaims state responsibility for both the underlying conditions that trigger assertions of choice as well as the lethal consequences of choice. As the Court has expanded choice-based rights, it has simultaneously ignored the indigent defense crisis, sanctioned divestment from public defense, set a low bar for constitutionally acceptable lawyering, and refused to recognize chronic underfunding of public defender systems as a constitutional violation. More broadly, it has refused to recognize a right to healthcare, to freedom from poverty, to welfare, or to educational equality — all of which profoundly affect a defendant’s odds in court. When disability justice activists advocate for decisional autonomy, they advance a robust vision of freedom rooted in social support and interdependence. By contrast, the Court, with its anemic, strictly negative vision of autonomous choice, has adopted the perverse position that a defendant’s right to waive counsel and conduct his own defense, ultimately to his own detriment, flows directly from “that respect for the individual which is the lifeblood of the law.” Scholars have ably critiqued the Court’s impoverished and dangerous construction of autonomy and choice. I build on this critique by drawing attention to the wider context that shaped this shift in jurisprudence.

The Court’s central focus on choice mimics a broader shift in public policy and academic thinking. Starting in the 1960s, but most forcefully in the 1980s, legislators, policymakers and think tanks ushered in the neoliberal revolution against the welfare state by weakening social protections and creating opportunities for elites, the middle class, and whites to opt out of public goods in favor of potentially better or more exclusive private ones. Individual consumer choice and flexibility became more important than universal access to social benefits, whether in healthcare, education, or access to legal counsel in criminal proceedings and beyond. The social wage was also recast as a social harm. The Supreme Court embraced what scholar Martha McCluskey calls neoliberal constitutionalism, which “posits a system of apolitical individualized voluntary economic exchange as the overarching model for law and politics.” Democratic governance became reduced to a system for aggregating individualized market choices rather than producing and distributing power. As state capacities were reorganized, carceral institutions increasingly absorbed the impoverished Americans abandoned by the welfare state and excluded from dignified labor. Instead of addressing the harms of unemployment, poverty, and marginalization, the neoliberal state invested in police, prosecutors, and prisons.

While choice can be an important demand for reform, it is the terrain in which choice operates that determines its true value. What does choice really mean in a context defined by profound unfreedom? The Court offers defendants the false panacea of greater choice with the effect of pacifying their grievances against the carceral state. If one side of the law and political economy scholarship is to identify the structures of accumulation, the other is to expose the legal structures that organize abandonment (to appropriate Ruth Wilson Gilmore’s term). The Supreme Court’s reliance on choice in the Sixth Amendment silently cements the abandonment and stratification that neoliberal austerity has produced, and that the criminal punishment system has exploited.