The defense of the accused in the United States has a fascinating past, a challenging but exciting present, and ahopeful future. A study of the criminal justice system indicates that many of the basic rights and freedoms of democracy are either preserved or lost in the administration of justice. It is important, therefore, to look at where we have been, determine where we are and how we got here, and what the future holds.
THE PAST – CRIMINAL DEFENSE BY THE GENERAL PRACTITIONER
Looking back we know that the criminal law and the criminal defense lawyer have always engendered extreme emotions. Appreciation, respect, and even love among some, disdain and revulsion among others.
It has always been so. The revulsion felt toward a particular crime and the person charged with committing that crime is readily transferable to the defending lawyer. When John Adams agreed to defend the British soldiers charged after the so-called Boston Massacre in 17701, he was reviled by many and is said to have lost more than half of his law practice. The reaction to John Adams defense of unpopular clients, is a reaction well known to the defenders of the accused before and since that time.
And yet, there is a great deal of interest, even fascination, in the defense of the accused. Many books, movies and television shows are based on crime and the prosecution and defense of the accused. Some of them are classic. One of the most revered stories and movies of all time is “To Kill a Mockingbird.” When Atticus Finch defended a black man falsely charged with rape, Atticus was reviled by a mob, but respected by all who loved justice and admired courage. His story has inspired many young persons to follow a career in the law. Many young lawyers now practicing in the civil arena were drawn to the law by dreams of defending the accused.
For the first 175 years of this nation, most lawyers were engaged in the general practice of law. They did it all.They formed business associations, then represented those businesses, they represented persons who were injured or were sued by such persons, they drew deeds, searched titles and drafted wills, and handled a myriad of other legal problems. They also defended those accused of crimes. Throughout the nineteenth century, and well into the first half of the twentieth century, criminal defense, except in the major cities2, was just a part of the general practice of law. Some were better at criminal defense than others, but almost all lawyers who did trial work would take a criminal case if retained to do so.
Abraham Lincoln was one of those lawyers. A study of his practice, as related in the wonderful book, Lawyer Lincoln3, by Albert A. Woldman, indicates the passion he had for the practice, and a great part of that passion was demonstrated in the defense of the accused. He handled many cases, from assault, theft, and trespass to murder. The stories of his trials show his abilities to sway the juries with logic, humor and eloquence.
Of course, the justice system of early America, particularly in the frontier areas, was often raw and the process was more pragmatic and swift than fair. But the failures of the system became more and more apparent as the nation changed from a rural, agrarian economy to the urban, industrialized economy of the twentieth century. In the larger urban areas, criminal defense was often relegated to the dregs of the bar. Though there were the grand exceptions, such as Clarence Darrow, Samuel J. Lebowitz, who defended the “Scottsboro Boys,” and others, much of the work in the big city magistrate courts and criminal courts was performed by lawyers with little learning and less ethics. For this reason, much of the rest of the bar looked down on any lawyer who practiced criminal defense. The best law students gave little thought to criminal defense, but opted for the more prestigious civil practice.
The Changing Scene Of Criminal Defense – The 60’s And 70’s
The changing scene of criminal defense started in both political and legal circles in the early 1960’s. When the United States Supreme Court in Mapp v. Ohio, 1961, extended the effect of the Fourth Amendment to the states through the Fourteenth Amendment of the U.S. Constitution, the Criminal Law Revolution began. During the next few years, the U.S. Supreme Court wrote decision after decision, strengthening or expanding the application of the U.S. Constitution to the rights of the accused. The states were pulled along, sometimes reluctantly, to extend these rights to the accused in the states courts. These decisions ultimately involved the provisions of the 1st, 4th, 5th, 6th and 8th amendments to the United States Constitution.
Several decisions involving the Fourth Amendment and its protections against unreasonable searches and seizures, included:
Katz (1967) formulated the “reasonable expectation of privacy” test to replace the property law
concepts of trespass to determine whether a governmental intrusion comes within the protection of the Fourth Amendment
Aquilar (1964) and Spinelli (1969) refined, clarified and made more stringent the probable cause test of the Fourth Amendment.
Davis v. Mississippi (1969) determined that an “investigatory arrest” – detention without probable cause, was a violation of the Fourth Amendment.
Chimel v. California (1969) narrowed the scope of permissible searches to the area “within reach” of the person searched under the arrest exception.
The decision of Gideon v. Wainwright in 1963, holding that in noncapital felony cases, state defendants were entitled to the assistance of counsel at trial, created great expectations in the field of criminal defense. While there remains considerable concern regarding the failure of those expectations, it was nonetheless a landmark decision and deservedly so.
The right against self incrimination under Escobedo v. Illinois, decided in 1964, and Miranda v. Arizona, decided in 1966, and U.S. v. Wade, 1967, extending the right to counsel to police-conducted lineups, continued the march. Decisions dealing with the right of confrontation, (Porter v. Texas, Barber v. Page, and Bruton v. U.S.), the right to a speedy trial, (Klopfer v. North Carolina); the right to the production of witnesses (Washington v. Texas); the rights to a jury trial in cases involving “serious” offenses (Duncan v. Louisiana) and extension of the Fifth
Amendment’s protection against double jeopardy to the states (Benton v. Maryland), were among the rights on which the Court focused between 1961 and 1969.
All of this produced a sea change in the defense of the accused. All of a sudden, in order to effectively practice criminal defense, a lawyer had to be a serious student of constitutional law. Preparation to defend had to be expanded to include the investigation, not only of the facts dealing with the offense itself, but also the investigation of the process, and the preparation of pretrial motions to raise and preserve the rights of the accused. The United States Supreme Court had provided a foundation on which due process, fairness in the administration of justice, might be obtained, but it could only be obtained if defense lawyers were willing to take the time and make the effort to deal with these issues.
Then Attorney General Robert F. Kennedy said in regard to the Gideon decision, during an address to the New England Law Institute on November 1, 1963:
“If an obscure Florida convict named Clarence Earl Gideon had not sat down in his prison cell with a pen and paper to write a letter to the Supreme Court, and if the Court had not taken the trouble to look for merit in that one crude petition among all the bundles of mail it must receive every day, the vast machinery of American law would have gone on functioning undisturbed.
But Gideon DID write that letter, the Court DID look into his case; he was retried with the help of competent defense counsel, found not guilty and released from prison after two years of punishment for a crime he did not commit – and the whole course of American legal history has been changed.”
Changes In The Practice Of Criminal Defense
Changes in the defense of the accused were dramatic during the years that encompassed and followed the “Criminal Law Revolution.” They were also exciting, stimulating and professionally rewarding. They included the substantial increase in the number of young attorneys entering criminal defense as their principal area of practice, the emphasis on the protection of constitutional rights, the increased development of pretrial pleadings and practice, the growth of criminal defense organizations, the development of rules of criminal procedure, and the increased appearance of public defender offices.
Enter the idealistic and enthusiastic young lawyers
At the same time that these developments were occurring within the judicial system, there was a rising interest among young people in the government and the system of justice. President Kennedy had brought many young people into government and both political parties attracted young people who thought they could make a difference through political action. The civil rights movement was also gaining momentum and the Peace Corps attracted many who wanted to serve. There was a feeling that opportunities to serve were abundant and fulfilling. One of the opportunities to “make a difference” was found in the defense of the accused. During the early sixties, Knoxville attorney Bernard E. Bernstein, Esq. was teaching the Criminal Section of the Legal Aid Clinic at the University of Tennessee College of Law and defending many who were charged with crimes in Knox County Criminal Court, and by his example and enthusiasm, encouraged a number of us to become involved in criminal defense.
The fights for procedural due process
The differences in the practice of criminal defense became apparent in the late sixties and early seventies. For example, until the late sixties, the files which were maintained by the Criminal Court Clerk for Knox County, Tennessee consisted of small, 4 inches by 8 inch jackets. That is all that was needed because in most cases, even those involving serious offenses such as murder, rape, kidnaping and armed robbery, all of which were then capital offenses, the only documents in a file were the indictment and a copy of the subpoenas. There were few motions filed. There was no discovery. In the states courts of Tennessee, there were no written rules of criminal procedure.
Then the impact of the decisions of the U.S. Supreme Court started to trickle down to the states. Sometimes the impact was a shock to the system and the public. I will never forget the public outcry and the demonstrated courage of Judge Joe D. Duncan when, in a murder case, he suppressed the confession of a fellow named Hastie Love, because Hastie had been denied his right against self incrimination under the Miranda decision, which had just been decided. Zane Daniel, Esq. was prosecuting that case and Kenneth Hall, Esq. defending it. Ken won that case, but Zane dug up two rape charges on Hasty and gained convictions that netted Hastie 99 years.
A principal impact of the decisions of the 60’s and beyond was the development of procedural due process which required the attorney for the accused to study constitutional law and develop pretrial motions to preserve the rights of the accused. We learned to investigate, research and effectively present in pretrial hearings issues dealing with the deprivation of the expanded rights.
Compensation for appointed counsel – a little was better than nothing
Prior to 1965, attorneys appointed to represent indigent defendants in Tennessee fulfilled their duties without compensation. The appointments were principally made among those attorneys handling “fee’d” cases in the Criminal Court, and those attorneys accepted those appointments as a duty imposed as a part of their private practice. In 1965, the State of Tennessee began to compensate appointed counsel. It was not much, but something was better than nothing. The rate of compensation for the representation of indigent defendants charged with felony offenses in Criminal Court was up to $100 a day, with a maximum of $500. The State paid a $20 attorney fee if you plead your client guilty.
The formation of criminal defense organizations
It was also during this time that criminal defense organizations began to be formed. The National Association of Criminal Defense Lawyers was formed by a few lawyers in 1958, but remained a small but dedicated few, generally less than a thousand members, until the seventies. Today there are more than 10,000 active members of NACDL and more than 25,000 affiliated members. “Affiliated members” include members of state and local criminal defense organizations, affiliated with the national association. In 1973, The Tennessee Association of Criminal Defense Lawyers was formed and became one of the first state organizations, along with the Texas Criminal Defense Lawyers Association and the California Attorneys for Criminal Justice. Today there are more than 850 members in TACDL.
The promulgation of the Rules of Criminal Procedure
In 1974 the Tennessee State Supreme Court, at the behest of Chief Justice Joe Henry, formed a committee to draft the state’s first Rules of Criminal Procedure. One would expect that the formulation and publication of Rules of Criminal Procedure would meet with universal acclaim among those practicing in the criminal justice system. That was not to be. Two of the “older” lawyers who were named to the committee, and appeared only at the first meeting, said that they came to that meeting only to register their protest in publishing such a set of rules. As one of them said, “It has taken me forty years to learn how to practice criminal defense and I am not in favor of putting all of the procedure into a set of rules that anyone can follow and learn in a short period what it took me forty years to learn.” Neither of these lawyers ever attended another meeting. That committee met every other weekend for about four months and, with much debate and compromise, drafted the Rules of Criminal Procedure which, as amended from time to time, still govern the procedure followed in our courts today.
The Counter Revolution – Political And Judicial
Prior to 1968, the only time I had heard of the phrase “law and order” was in the history books, when, during the 1930’s, a rising German politician by the name of Adolf Hitler promised to restore “law and order” to Germany. But in 1968 an articulate and dynamic politician named George Wallace gave birth to the idea that, somehow, the decisions of the Warren Court, from Escobedo to Brown v. Board of Education were responsible for all of the problems, real and imaginary, of America. He was governor of Alabama, and was running for the presidency of the United States.
Governor Wallace started talking about the need to bring “law and order” to the United States. When George Wallace was describing the issues of the 1968 campaign, he said, “I’ll give you another one for 1968: law and order. Crime in the Streets. The people . . . are fed up with a Supreme Court that . . . it’s a sorry, lousy, no account outfit.”4 Other politicians, including Richard M. Nixon, saw the results of this approach. Wallace was making headway, not only in the South, but in Midwestern states, such as Michigan. Mr. Nixon picked up the theme and rode it into the White House.
It soon became obvious that a “law and order” theme would resonate with the voters, and that revelation to politicians ignited a fire that has burned brightly for more than 35 years and shows few signs of being extinguished.
The drum beat of “law and order” has produced an atmosphere of fear, out of proportion to reality. Studies indicate as much. During the 1994 election season, residents of a tranquil town in rural Virginia, 100 miles from Washington, were polled on their most important concerns. The town had virtually no violent street crime, and there had not been a homicide for more than two decades. Yet, the majority of citizens listed fear of violent crime as their most pressing concern.5
Persons reaching for authority over others have usually done so on the basis of fear. Every totalitarian government in history has been brought about because someone convinced a sizeable portion of the population that they would be safer, more secure, and more free from fear if they in trusted the person or persons with the authority to deal with the problems, real or created. The fears generated by the “law and order” movement have produced a fertile field in which to create new crimes. Every legislative effort to create new crimes or to increase the punishment for existing crimes provides to the executive branch of government increased authority over the lives of the citizens of this country.
The “law and order” movement had effects on the courts and in the state and federal legislatures. Candidates for political office learned that they did not have to deal with more substantive, and often more difficult, issues if they could convince the electorate that they were tougher on crime than their opponents. In almost every legislative term in every state legislature and in the United States Congress since 1968, there has been some legislation which has been enacted, either creating new crimes where none existed before or increasing punishment.
Some of the offenses created in the early part of the “law and order” movement would include the Omnibus Crime Control and Safe Street Act of 1968; the drug laws of the seventies, including the Control Substances Act, passed in the fall of 1970; and the RICO statute, known as the Organized Crime Control Act of 1970, also passed in the fall of 1970.
An examination of Title 21 U.S.C.’ 841 will show this drug legislation has been amended many times, and almost always in the fall of even numbered years, when the members of Congress are running for reelecting. In fact, much of the crime legislation enacted since 1968 has been enacted in the same pattern.
In an excellent law review article, Professor William J. Stuntz, of Harvard Law School, “The Pathological Politics of Criminal Law,”6 notes that in 1873 the title on federal crimes included 183 separate offenses, and by 2000, there were 643 separate sections in Title 18 of the United States Code, with the number of distinct crimes numbering more than a thousand. That does not count many crimes in other sections of the federal code.
It seems that our legislators, particularly our federal legislators, have decided that the most popular solution to every social problem is to create a new crime. Violations of federal regulations before the “law and order” movement resulted in civil enforcement by administrators responsible for enforcing the particular regulation. Now, violation of a federal regulation will often mean criminal prosecution. This is particularly true when the defendant is charged with health care fraud and environmental “crimes.”
Before the onslaught of federal criminal legislation, the most common criminal cases in the United States District Courts were of several types; moonshine cases, Dyer Act cases (taking a stolen vehicle across a state line); mail fraud cases, counterfeiting and bank related cases, including robbery and embezzlement.7 Once in a while we would have a case of illegal gambling or a case involving the Mann Act, which punished a person for bringing a woman across state lines for immoral purposes. Criminal cases were far from being a major part of the docket. Judge Robert Love Taylor was the United States District Judge for the Eastern District of Tennessee from 1949 until 1985. Often, when criminal cases were brought before him, Judge Taylor was heard to complain, “Mr. U.S. Attorney, you are trying to turn this court into a police court.” One wonders what he would have thought of the scope and number of criminal cases in the United States District Court today.
All that has gone before – the heritage of the trial lawyers defending the accused for generations, the ideals forged during many hard fought and unpopular cases, the “Criminal Law Revolution,” the “Criminal Law Counter Revolution,” the “law and order” movement, the coming together of many criminal defenders into organizations which provide support and continuing education – have all produced a very different practice of criminal defense today than it was just a few years ago. The present realities bring new challenges and new opportunities to the lawyers dedicating themselves to the defense of the accused. In some ways, the practice is more difficult and more challenging. It is still, however, very rewarding and provides many opportunities to help people whose lives have been broken by the accusation of crime.
Some of the factors which shape the practice of criminal defense today include: the effect of the “law and order” movement on the courts, the enactment of sentencing guidelines in both federal and state jurisdictions, the increased transfer of power to the prosecution which comes in part from the sentencing guidelines and in part from the legislation which gives the prosecution new powers or “tools,” the broader scope of the criminal law, the increase in the number of persons incarcerated in public and private penal institutions and the growth of the public defender offices, and their impact on the private practice of criminal defense.
The Effect Of “Law And Order” Movement On The Courts
The “law and order” movement has had far reaching effects on the administration of justice in general and the defense of the accused in particular. In the state and federal trial and appellate courts, the change in atmosphere is palpable and affects the proceedings and the decisions that are rendered. Judge Lee Asbury sat on the bench as the Criminal Court Judge for the Eighth Judicial District of Tennessee, with jurisdiction for Campbell, Claiborne, Scott and Union Counties from 1974 to 1998. A few years ago Judge Asbury told me that when he first sat on the bench the attitude of most jurors was that if the prosecutor proved his case beyond a reasonable doubt, they would not hesitate to convict, but that if he failed to do so they would not hesitate to find the defendant not guilty. Judge Asbury said that the attitude changed in the latter part of his judicial career. He said that the attitude of many jurors became, “This is my chance to take a stand for law and order.” Most objective observers of the present criminal justice system will confirm the accuracy of Judge Asbury’s statement. Unfortunately, it means that the presumption of innocence has been severely weakened, and that persons charged with crimes can be convicted on less than proof beyond a reasonable doubt. Most trial lawyers now assume that they are dealing with this attitude when preparing for trial.
Most Tennessee judges, on both the trial and appellate level, have stood firm in their duty to uphold the basic principles on which the system of justice depends. Privately, however, after Supreme Court Justice Penny J. White was defeated for retention by an ad campaign in 1995, several judges admitted concerns about whether decisions in death penalty and other cases might render them vulnerable to the accusation that they were “putting the rights of criminals before the rights of victims.”
The Transfer Of Power From The Judiciary To The Prosecution Through The Federal And State Sentencing Guidelines Prior to the implementation of the Federal Sentencing Guidelines (“Guidelines”) in 1989, United States District Court judges set the maximum term of imprisonment within the statutory range and the Parole Commission determined when to the release the prisoner. The perception developed that the unfettered discretion of judges and parole authorities in imposing and implementing sentences resulted in unwarranted disparity among offenders with similar criminal backgrounds convicted of similar crimes.
Congress responded by eliminating parole and establishing the United States Sentencing Commission, directing it to establish sentencing guidelines that would provide certainty and fairness and “avoid unwarranted sentencing
disparities among defendants with similar records who have been found guilty of similar criminal conduct.”8
That sounded logical and reasonable, but the experience of the fifteen years that followed the implementation of the Guidelines brought many consequences that the authors of the enabling legislation may not have intended. The “guidelines” are not guidelines as that word is normally used. The Federal Sentencing Guidelines create what amounts to mandatory sentences on a grid, from which the judges cannot depart without a motion for downward departure. A recent General Accounting Office report issued on October 31, 2003, showed that most such departures were due to motions filed by the prosecutors to reward “substantial assistance.”9 Since only prosecutors can make a motion for downward departure for “substantial assistance,” they are said to be the “gate keepers” of downward departures.
In addition, since the prosecutor retains the discretion to decide what offenses to charge, and often influences, if not determines, the “relevant conduct” which serves to determine the level on the guidelines chart, it is the prosecutor, much more than the judge, who determines the sentence to be served. There is still discrepancy in sentencing. However, the discrepancy is the result of the discretion exercised by the prosecutor, not the judge. Most objective observers of the system of justice believe that discretion relating to sentencing should be exercised by an impartial court rather than an advocate.
While criminal defense counsel can still render effective assistance to clients charged in the federal system, and well-represented defendants often fare much better than those that are not well defended, the fact is that the power granted to the prosecutors under the Guidelines has greatly decreased the number of trials in federal court.
A case which Wade V. Davies, Esq., one of my law partners, and I handled in federal court in Tampa recently serves to illustrate the point. We were representing a married couple charged with health care fraud.10 While Wade and I were convinced that our clients were not guilty of the offenses with which they were charged, and felt that we had a reasonable chance of success at trial, the Guidelines exposure would have mandated that they serve about six years incarceration if convicted at trial. The prosecuting attorney offered to file a Motion for Downward Departure under U.S.S.G.’ 5K1.1 if the couple would agree to be provide minimal “substantial assistance,”and further agreed that the couple would not face more than six months incarceration and that the judge could consider probation. We outlined the alternatives on two sheets of paper and explained each to the clients. I shall never forget my client holding each sheet of paper and looking first at one and then the other, repeating over and over, “Six months or six years, six months or six years, I really don’t have a choice.” Their case was one which would have been tried to a jury before the Guidelines; however, because the judge would have had no alternative under the Guidelines but to impose a six year sentence if they went to trial and were convicted, the case was settled.
The comparison of the number of cases concluded by plea of guilty to the cases tried is startling to criminal defense attorneys who tried large numbers of cases just a few years ago. The United States Sentencing Commission website contains a chart for Fiscal Year 2001, showing that 96.6 percent of all federal cases that year were concluded by plea, and only 3.4 percent were concluded by trial.11
Additionally, the Guidelines have institutionalized “informers,” and “cooperating individuals,” a practice which has been seen as abhorrent in most societies and countries for generations. Supreme Court Justice Jackson in Lee v. United States, while refusing to exclude such testimony as a matter of law, stated, “The use of informers, accessories, accomplices, false friends, or any other betrayals which are ‘dirty business’ may raise serious questions of credibility.”12 When “informer” testimony was used in Judge Taylor’s court, he often spoke disparagingly about such testimony and referred to it as “dirty business.” The “informer” who was ostracized by society just a few years ago is now the darling of the prosecution nursery.
The Assistant United States Attorneys have complete discretion in determining which defendants or codefendants they will use for “substantial assistance.” Even after they get “assistance,” they have unfettered discretion to determine whether, in their opinions, the “assistance” was sufficiently “substantial” to warrant filing a motion for downward departure under USSG 5K1.1. Many impartial observers have expressed the opinion that this creates an imbalance in the criminal justice system. Nevertheless, criminal defense lawyers who do not assist their clients in qualifying for a downward departure, where one is available, are probably guilty of malpractice. It is a part of life in the prosecution and defense of criminal cases today, but that does not make it any less distasteful and potentially an impediment to truth and justice.
The Impact Of Tennessee Criminal Sentencing Reform Act Of 1989
Perhaps to a lesser extent, but just as real, is the impact of the Tennessee Criminal Sentencing Reform Act of 1989 on the number of trials. That act created classes of felony and misdemeanor offenses and classification of offenders, with ranges of punishment affected by both factors. Parole is retained for most offenses, but sentences for certain offenses must be served at 85%.13 A judge can grant probation if the sentence imposed is 8 years or less, with certain exceptions.14 Accordingly, if a defendant is facing a Class A felony (15 – 60 years) or a Class B felony (8 – 30 years), or one of the offenses for which no probation and no parole is authorized, and is offered a plea to an offense with less severe alternatives, that offer may look attractive. Cases that formerly would have gone to trial are often settled. The impact, therefore, of the 1989 sentencing legislation has been to reduce the number of trials in state courts as well.
The Effect On The Rates Of Incarceration In The United States
In 1960 there were only 212,953 people incarcerated in state and federal prisons in the United States. At the end of 2002 there were nearly 2.2 million people behind bars, one out of every 143 residents in the United States. In comparison, in England, Italy and Germany only about 1 out of every 1000 of the residents of those countries are incarcerated.15 The United States now leads the world in having the highest rate of incarceration. A few years ago we were third behind Russia and the Union of South Africa, but now we are number one.
In 1980 the number of sentenced inmates incarcerated under State and Federal jurisdiction per 100,000 persons was 139. By 2002 that number had increased to 476 per 100,000 persons.
It has been said, “build it and they will come.” There has developed in this country what has come to be known as “The Prison-Industrial Complex,” said to include a combination of “government bureaucracy, private industry leaders and politicians” who work together to exercise a powerful influence on crime policy.16
There is no dispute about the fact that private companies like Correction Corporation of America and Wackenhut Corporation employ Aregistered lobbyist to assist the company with promoting legislation to allow privatization of correctional facilities. Nita Christie, a Norwegian criminologist and the author of “Crime Control as Industry,” argues that companies that service the criminal justice system need sufficient quantities of raw materials to guarantee long-term growth. The raw materials, he suggests, are prisoners and industry will do what is necessary to guarantee a ready supply.17 Prison guard unions promote prison expansion, and donate large sums of money to candidates who support such legislation. The injection of the profit motive into the criminal justice system is
troubling, but a fact of life which impacts that system and therefore impacts the practice of criminal law.
The Public Defender Offices
Public Defender Offices, which had existed in a few jurisdictions for years, began to be organized in many jurisdictions in the latter part of the twentieth century. Public Defender programs came early to Tennessee, but did not cover the state until 1990. Memphis established a public defender office in 1917 and Nashville did so in 1960. The Knox County Public Defender Office, now known as the Knox County Community Law Office, was established in 1990. The changes in the practice of criminal defense by the growth of the public defender offices were substantial. Some of the changes were immediate and some became apparent as the years have passed. The immediate changes included the availability of full time, dedicated, and usually well trained attorneys, most of them young and, at least initially, largely inexperienced. In Knox County, under the excellent leadership of Mark Stephens, Esq., the public defender program has become a national example of an innovative, holistic approach to the defense of the accused. The attorneys in this program are fine attorneys who represent their clients with enthusiasm and skill. They have demonstrated that they care about their clients and care about their roles in the system of justice. With starting salaries of approximately $28,000, however, many of them are underpaid and over worked. Many of them carry case loads which substantially exceed the case load limits recommended by all of the studies and guidelines on the subject.
The Bureau of Justice Statistics published a “Special Report” entitled “Defense Counsel in Criminal Cases” in November 2000. In that report it is indicated that A[a]t felony case termination, court-appointed counsel represented 82% of State defendants in the 75 largest counties in 1996 and 66% of Federal defendants in 1996. I suspect that those percentages have increased in the years since that study. In the State category, 68.3% were assigned public defenders, 13.7% were assigned counsel from private practice; and only 17.6% hired their own lawyers. In U.S. District Courts, the Federal Defender Organizations represented 30.1%, panel attorneys represented 36% of defendants in felony cases, and 33.4 % of the defendants hired private counsel.
There seems to be a consensus among prosecutors and defense lawyers who have practiced in the Knox County Criminal Courts for 30 years or more, that the increased role of the public defender office has had substantial effects on the private bar. First, although the number of lawyers in the nation and locally have greatly increased in the last fifty years,18 there are fewer lawyers in private practice actively practicing criminal defense. This has resulted from the reduction in the number of defendants who seek to retain private counsel in many cases. This reduction is despite the fact that many more persons are charged with criminal offenses today that at any time in history. In former years, when a person was charged with a crime, members of his or her family would be willing to raise funds to retain counsel. That happens less often now. This is probably results from the perception that, with the availability of a well trained, full time public defender, there is no longer a need to come to the aid of the errant family member.
Second, the increased competition among the criminal defense attorneys who are in private practice, coupled with judicial decisions permitting advertising, for the clients that are seeking private counsel, has brought about some practices which would have never existed a few years ago. A young lady who retained our firm on a misdemeanor case a few weeks ago, said that she received no less than seven unsolicited letters from attorneys offering their services.
More “Tools” For The Prosecutor, More Power In The Hands Of The Few – Sign Of Things To Come?
The events of September 11, 2001 created a political climate that resulted in a further shift of power to the prosecution function of the criminal justice system. In less than a week after the events of that day, the Department of Justice sent to the Congress legislation, much of which had been drafted before 9-11, providing for additional powers for prosecutors and law enforcement. Many of the provisions had been on the DOJ “wish list” for some time, had been previously submitted to Congress and rejected. They dubbed that proposed legislation “The Patriot Act” and told Congress and the people that this legislation was necessary to fight terrorism. It was passed by Congress and signed by the President on October 26, only 45 days after September 11.
Some have called the Patriot Act “the greatest expansion of government surveillance powers ever enacted in the United States.” Mindy Tucker, Public Affairs Director of the Department of Justice in 2001, is quoted as saying, “[The Patriot Act] is just the first step. There will be additional items to come.”19 She was right. The Protect Act, with its Feeney Amendment followed.
Some of the provisions of The Patriot Act provide for the following:
• Prohibits businesses or organizations that are being searched (such as a library or hospital) from informing a targeted citizen, or anyone for that matter, that their information is being gathered.Furthermore, owners and officers of businesses are gagged from disclosing that they have been the subject of an FBI search and seizure.
• Allows the secret roving wiretaps of phones, computers, and other electronic devices without showing probable cause or even reasonable suspicion of criminal or terrorist activity.
• Allows government agents to enter any premises, whether it be a private home or business, copy, photograph, or seize evidence, and install surveillance equipment with delayed notice of the warrant to the suspected individual. A time period establishing this “later date” of notice is not specified. This came to be known as the “sneak and peek” provision and is not limited to terrorist investigations.
• Loosens restrictions on the sharing of information between intelligence agencies that were imposed on in the 1970’s after the government spied on law-abiding, politically active U.S. citizens.
• Authorizes the monitoring of all communications between designated inmates and their counsel, whether in person, by telephone, or in writing, without a court order. This rule is not limited to alleged terrorists, but extends to all incarcerated individuals.
• Allows the detainment of non-citizens without showing cause. These non citizens may be deported or held indefinitely without trial.
• Contains secrecy provisions barring information from the public regarding Patriot Act related activities of the government.
The provisions of The Patriot Act have raised serious concerns and resulted in a strong reaction from both liberal and conservative organizations. It has been reported that nearly 160 local governments and the legislatures of Vermont, Alaska and Hawaii have condemned the Patriot Act and, in some cases, instructed their officers not to cooperate with its enforcement.
As is often the case, prosecution tools obtained through legislation for one purpose are readily available and used for other types of prosecutions. The provisions of the Patriot Act were used recently in the prosecution of some minor officials in Las Vegas in what was known as “Operation G-String.” The Act was used to obtain financial records in a manner which could not have been done without the provision of the Act. It was apparent that the case had nothing to do with terrorism and illustrates the breadth of the legislation.
The Protect Act – The Feeney Amendment
In the spring of 2003, Congress passed the Protect Act, the primary purpose of which was to set up the federal version of the “Amber Alert.” A last minute amendment, however, was introduced by Congressman Tom Feeney, (R. Florida) That amendment, introduced and passed without any committee hearings, directs the U.S. Sentencing Commission to amend the U.S. Sentencing Guidelines Ato ensure that the incidence of downward departures (under the U.S. Sentencing Guidelines) are substantially reduced. It also required the Attorney General to establish what has been called a “judicial blacklist” by informing Congress whenever a federal judge departs downward from the guidelines.
Chief Justice Rehnquist criticized the record-keeping and reporting requirements imposed by the Act on federal judges, as potentially amounting to “an unwarranted and ill-considered effort to intimidate individual judges in the performance of their judicial duties.”
Following the passage of the Protect Act, Attorney General Ashcroft issued a memorandum outlining the DOJ policies with respect to downward departures, and providing that prosecutors should not “acquiesce” to departures except in rare occurrences. In addition, when a judge imposes a departure over the prosecutors objections, the memorandum requires the prosecutor, within 14 days, to report the departure to DOJ.
WHERE WE GO FROM HERE – HOPEFUL SIGNS FOR THE FUTURE
Despite the challenges faced by the defender of the accused, the future of our system of justice is bright. It is bright because the core beliefs and principles that established our system of justice remain strong. It is bright because there are thousands of people, in and out of the legal profession, who care about the administration of criminal justice and care about people. It is bright because many judges, who retain a reservoir of respect from the public, are speaking out about the injustices which have resulted from the mistakes of the recent past. And it is bright because criminal defense lawyers, both in private practice and in public defender offices, are dedicated, diligent and determined to persevere on behalf of their clients and on behalf of the system of justice.
The Rebellion Of Some Federal Judges
There is hope for the future of the defense of the accused because of the groundswell of voiced concern expressed by many judges about the current problems with the system.
Since the United States Sentencing Guidelines were formulated in 1988, pursuant to an act of Congress, many federal judges have voiced their opposition to the guidelines as an unwarranted intrusion into the judicial function. Many have also voiced the opinion that sentences imposed under the so called “guidelines” are unjust and fail to adequately take into consideration the facts and circumstances of each case. Many have been particularly vocal about the injustices of mandatory minimum sentences which must be imposed under legislative enactments.
Some judges, such as Judge Jack B. Weinstein, USDC, Brooklyn, who achieved senior status, have removed themselves from the assignment of criminal cases, saying that they could not, in good conscience, impose sentences under the Guidelines.
The level of protest, however, has greatly increased in recent months, following the passage of the Feeney Amendment. Judge John S. Martin, Jr, resigned from the federal bench in Manhattan in June and accused Congress of attempting “to intimidate judges.” Judge Martin said, “For a judge to be deprived of the ability to consider all of the factors that go into formulating a just sentence is completely at odds with the sentencing philosophy that has been the hallmark of the American Justice System.”
An article in the New York Times by Ian Urbina, dated December 8, 2003, quoted several judges.21 One federal appellate judge, after hearing an oral argument regarding a sentencing issue, commented that if the panel did not follow the recommendation of the prosecutor, “you’ll probably take our names and report them to the attorney general.” That prompted Judge Chester J. Straub to caution the prosecutor, “Be sure you spell them correctly.” “Especially Straub, another panel member, Judge Calabresi said, to laughter in the courtroom, “S-T-R-A-U-B.”
Judge Robert P. Patterson, Jr. of the U.S. District Court in Manhattan said, “It’s a serious breach of the separation of powers to have the executive looking over the judiciary”s decisions. It also certainly looks like a possible blacklist.”22
Speaking Out By Justice Kennedy
In August 2003, at the Annual Meeting of the American Bar Association, United States Supreme Court Associate Justice Anthony M. Kennedy delivered the keynote address. He strongly attacked the current approach and direction of our criminal justice system and the penal system and called for reform. Among the points he made were:
In the United States we have 2.1 million people behind bars. One in 10 African Americans in their mid to late twenties are behind bars.
Our incarceration rate in the US, per capita, is about eight times as high as that of England, France and Germany. Their per capita incarceration rate is about 1 in 1,000. Ours is one in 143.
Our resources are being misspent, our punishments are too severe and our sentences are too long.
While the guidelines should be retained, they should be revised downward.
Neither wisdom, justice nor necessity supports mandatory minimum sentences. In all too many cases they are unjust. Repeal the mandatory minimums.
Let judges be judges. It is simply unwise to take away our discretion from out United States judges or from state judges.
Give consideration to ways in which we might reinvigorate the pardon and clemency process. A country which is secure in its laws should not be ashamed of the concept of mercy.
As a result of the remarks of Justice Kennedy, the American Bar Association formed the Kennedy Commission, to address the inadequacies of injustices in the prison and correctional systems. The Commission held a hearing on November 13, 2003 titled “How Effective is Federal Sentencing.” It was a three-day program and drew witnesses from Congress, federal judges, public and private defense attorneys, and a member of the U.S. Sentencing Commission. The Department of Justice declined the invitation by the Commission to be represented at the hearing.
The American College of Trial Lawyers has also formed a Task Force on Sentencing, Chaired by Earl J. Silbert, Esq., Former United States Attorney for the District of Columbia, and a Past President of the College. The Task Force has been asked to report to the College on actions “alleged to have been taken by the legislative and executive branches that ‘threaten the independence of our judiciary in the area of sentencing,’ and to recommend to the College what positions it should take with respect to them.”
The groundswell of publicly stated concern by these respected groups lends hope that at least some of the injustice resulting from the sentencing schemes of the last fifteen years may be addressed and corrected.
The Development Of The Holistic Approach To The Practice Of Criminal Defense – The Community Law Office Of Knox County
There is hope for the future of the defense of the accused because of the development of the holistic approach to the practice of criminal defense.
For the criminal defense lawyer the challenge and excitement of defending the case, the anticipation of the trial, and the trial itself form the core of his or her professional life. Yet, there has developed the settled feeling that this is not enough. Most persons charged with criminal offenses have underlying problems in their lives, problems without which they might never have been charged with crime in the first place. One or more of such problems, such as psychological or psychiatric problems, emotional difficulties, the use of drugs and/or alcohol, the lack of basic learning skills, the lack of employment skills, and many other challenges are apparent to the criminal defense lawyer in almost every client.
For years some of us have attempted to assist in determining the nature of the underlying problems of clients and in obtaining assistance to deal with those problems. Most clients who can obtain the funds to retain private counsel have the resources for treatment, counseling, and guidance that can address their underlying and related difficulties. Often, the pendency of criminal charges becomes a motivational point which can turn the life of the client around and, with assistance and guidance, can restore the client to a positive, productive and contributing role in the community.
The lack of resources to make this kind of effort has been a real challenge to those who are defending the indigent, and, as indicated above, the indigent make up the large majority of those charged with crimes. The need to meet that challenge, however, has weighed heavily on the public criminal defense lawyers. Mark Stephens, Esq., Public Defender for Knox County, Tennessee, with the assistance of a very able staff, and the support of the Knox County Commission, has established a program to meet that challenge. The establishment of the Knox County Community Law Office has produced a model that has achieved national recognition. It seeks to provide clients with guidance to a wide range of resources to address all sorts of problems faced by the client. Several full time staff persons daily assist clients with problems including education, housing, mental health, alcohol and drug dependency, employment, and even drivers license issues.
The message from this type of assistance is that the community can be better protected and the individuals charged with crime can be helped to more productive lives with this approach. This approach runs counter to the “lock-’em-up-and-throw-away-the-key” philosophy that has dominated our system of justice for the last three decades. The leadership of the Knox County Community Law Office provides a beacon of hope for the future.
The Innocence Project – New Tools And New Approaches By The Criminal Defense Lawyer
Indicative of the dedication, diligence and determination on the part of the criminal defense lawyer is the development in recent years of the Innocence Project. Started in 1992 by Barry C. Scheck and Peter J. Neufeld as a non-profit legal clinic, the Project only handles cases where postconviction DNA testing of evidence can yield conclusive proof of innocence. To date, there have been 138 exonerations by the Project. The Tennessee Innocence Project was begun in 2001. It was founded by Knoxville attorneys Kenneth F. Irvine, Jr., Ursula Bailey, Wade V. Davies, Stephen Ross Johnson, and UT College of Law Legal Clinic Professior Jerry P. Black, Jr. and is housed at the University of Tennessee College of Law. The Tennessee Innocence Project reviews both DNA and non-DNA cases, but restricts its cases to those in which there is a reasonable possibility of proving actual innocence. More than 40 law students are involved in the work of the Tennessee Project and approximately five cases across Tennessee have been accepted by the Project and are being actively investigated. More than 500 requests for assistance have been received and evaluated by the Tennessee Project.
This type of intensive, innovative effort to correct injustice provides hope for the future of our system of justice.
The Primary Reason For Confidence In The Future – The Fundamentals Remain
The primary reason that future of the defense of the accused is bright in this country is the fact that its criminal defense lawyers – liberty’s last champions – are highly committed, extremely dedicated and highly skilled advocates. The fundamentals remain. Despite the challenges which have been discussed, despite the transfer of discretion from the courts to the prosecutors, and despite the draconian punishments which can be and are meted out, the basic tenets of the system of justice remain intact.
We still have the jury, before whom we can and do plead our clients cases. We have the assurance of the Sixth Amendment guaranty that any person whose liberty is in the balance is entitled to be represented by an attorney. We have the right of confrontation, and its concomitant right of cross examination, the greatest engine for the ascertainment of truth ever devised. We have the presumption of innocence and the right to call upon the prosecution to prove its case beyond a reasonable doubt, and although those concepts may have been weakened in the minds of some, they are indelibly woven into the fabric of the system of justice.
The constitutional criminal procedure counter-revolution and the loss of judicial discretion may have a bright side for the criminal defense lawyer. That is, if courts and prosecutors are unwilling to listen, the only people we may be able to get to listen are jurors. We might be moving to a time when the only way to help clients is to try to win their cases at trial — in other words, what most of us wanted to do when we went to law school. The right to a jury trial has not been weakened at all.
Every day, in thousands of courtrooms across this land, criminal defense lawyers take on the burden of representing persons who are accused of crimes. Those persons know that the only one standing between them and the power of the government is their attorney. Attorneys defending the accused are among the most motivated, dedicated and hard working people in any profession. So long as there are attorneys willing to defend, the system of justice will not falter, it will not fail, and the future of that system will remain bright.
The heritage of the criminal defense lawyer and the contribution made by those lawyers to the basic freedoms enjoyed by the people of the United States can hardly be overstated. It is the criminal defense lawyer who daily focuses on the core values of the Bill of Rights, who resists efforts to encroach on those values, and who seeks to help those who have been broken by criminal accusation to put the pieces of their lives back together and become productive members of the community. For the criminal defense lawyer today, the past has provided a foundation based on courage and determination, the present provides challenges that are daunting, but not intimidating, and the future holds the promise that the people will once again recognize the validity of the statement made by Winston S. Churchill to the House of Parliament, in 1910, when he said:
“The mood and temper of the public in regard to the treatment of crime and criminals is one of the most unfailing tests of the civilization of any country. A calm, dispassionate recognition of the rights of the accused and even of the convicted criminal; tireless efforts towards the discovery of curative and re-generative processes; unfailing faith that there is a treasure, if you can only find it, in the heart of every man. These are the symbols which, in the treatment of crime and the criminal, mark and measure the stored-up strength of a nation, and are the sign and proof of the living virtue within it.”
Robert W. Ritchie, Esq.
December 16, 2003.
1. While suffering the “public scorn” heaped on him for defending the British soldiers, Adams copied into his diary a passage from a treatise by the eminent Italian penologist and opponent of capital punishment Cesare, Marchese di Beccaria, the following, which well expresses the feelings of criminal defense lawyers then and now: If, by supporting the rights of mankind, and of invincible truth I shall contribute to save from the agonies of death one unfortunate victim of tyranny, or of ignorance, equally fatal, his blessings and years of transport will be sufficient consolation to me for the contempt of all mankind. David McCullough, John Adams, 66-67, (Simon and Schuster, 2001)
2. ” A specialized criminal bar, of course, had appeared in major cities by the late nineteenth century. But many of its members were more likely to advertise their political connections and court influence than their legal knowledge. Consistent with this, the criminal bar seems to have attracted a disproportionate number of attorneys who had low social status because of their ethic backgrounds and attendance at less prestigious law schools. The elite bar, then, looked down upon the criminal bar and criminal courts, only rarely representing clients in routine criminal cases, and knew little about the realities of criminal practice.” Mark H. Haller, “Plea Bargaining: The Nineteenth Century Context,” Crime and Justice in American History, Meckler Publishing, 1991.
3. Woldman, Lawyer Lincoln, Carroll & Graf Publishers, Inc., 1936.
4. Theodore H. White, The Making of the President 1968, page 346, (Atheneum Publishers 1969).
5. Steven Donsiger, “The Prison-Industrial Complex,” The Washington Post, March 17, 1996, at C3.
6. William J. Stuntz, “The Pathological Politics of Criminal Law,” 100 Mich. L. R. 505 (Dec. 2001).
7. W. Thomas Dillard III, Esq., my law partner who served as the United States Attorney for both the Northern District of Florida and the Eastern District of Tennessee, after many years serving an Assistant United States Attorney, and United States Magistrate Judge, confirmed this statement.
8. See 18 U.S.C. ‘ 3553 (a)(6)
9. GAO Report of October 31, 2003 shows that 64 percent were substantial assistance departures; 6 percent were pursuant to a plea agreement; and 6 percent were “fast-track” departure, totaling 76 percent in which the government was involved. Only 24 percent were based on judicial discretion.
10. Despite the fact that Wade and I are law partners, we were permitted to represent both husband and wife after a hearing under Fed. R. Crim. P. 44.
11. The record of pleas vis a vis trials in the Sixth Circuit is similar: 96.5% pleas and 3.5 % trials; In the Eastern
District of Tennessee the comparison is 95.6 % pleas and 4.4 % trials.
12. Lee v. United States, 343 U.S. 747, 757-758, 72 S.Ct.967, 973-974 (1952)
13. T.C.A. ‘ 40-35-501(i).
14. T.C.A.’ 40-35-303.
15. Mark Allenbaugh, Findlaw Columnist, CNN.com, Aug. 15, 2003
16. Steven Donsiger, “The Prison-Industrial Complex,” The Washington Post, March 17, 1996, at C3.
18. Alman Weil, Inc. Survey indicates that there were 200,000 lawyers in the United States in 1951 and 1,060,000 lawyers in 2002. In Knoxville, Tennessee the membership of the Knoxville Bar Association in 1960 was 265 members and is more than 1100 members today.
19. Richard Dreyfuss, John Ashcroft=s Midnight Raid, Rolling Stone, Nov. 22, 2001, Iss. 882, 47.
20. John W. Whitehead and Steven H. Aden, “Forfeiting “Enduring Freedom for “Homeland Security”: A Constitutional Analysis of the USA Patriot Act and the Justice Department’s Anti-terrorism Initiatives,” 51 Am. U. L. Rev. 1081 (Aug 2002).
21. Ian Urbina, Federal Judges Protest Sentencing Procedures, N.Y. Times, Dec. 8, 2003.
22. A United States District Judge recently told me that, although federal judges have life tenure, the intimidation is felt, particularly if the district judge has thoughts of being named to the Circuit bench at some point in the future. The “blacklist” would certainly be available to those influencing nomination and in any confirmation hearing.