The Declining Utility of the Right to Counsel in Federal Criminal Courts: An Empirical Study on the Diminished Role of Defense Attorney Advocacy Under the Sentencing Guidelines

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Abstract

Many commentators have argued that the Federal Sentencing Guidelines have changed the role of judges, prosecutors, and probation officers in federal criminal courts. This Article, based on empirical research, adds a new dimension to that literature by examining ways in which the Guidelines regime has altered defense attorney advocacy. The Article presents the results of a study involving forty participants, all federal criminal defense attorneys. These attorneys discuss their practices and experiences as advocates in a system that increasingly deters and penalizes zealous representation by equating it with the defendant's obstruction of justice or failure to accept responsibility. The attorneys also describe their decreasing bargaining power under a sentencing structure that overempowers their prosecutorial adversaries. Taken as a whole, the empirical evidence suggests that some lawyers have redefined what it means to be a good advocate in the face of the perceived rigidity and severity of the Guidelines. Instead of zealously presenting their client's best legal claims in every instance, defense attorneys have had to temper their zeal by focusing on the overall effect that the adversarial process has on their clients. These defense attorneys have increasingly taken on more technical, incremental roles: counseling their clients, guiding them through the criminal adjudication process, and combing the complex sentencing rules for exceptions that might apply to their clients. Their accounts reveal that the role of the defense lawyer and the meaning of the right to counsel have changed fundamentally from the time of Gideon v. Wainwright and other cases that championed the right to counsel as a vital safeguard for the protection of individual rights and the integrity of the criminal justice system.

Original languageEnglish (US)
Pages (from-to)425-485
Number of pages61
JournalCalifornia Law Review
Volume92
Issue number2
DOIs
StatePublished - Mar 2004

ASJC Scopus subject areas

  • Law

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