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Wednesday, October 05, 2005

Does Constitutional Criminal Procedure Stuntz the Growth of Real Criminal Justice?

Our faculty reading group at Southwestern next week will be discussing Bill Stuntz's new draft paper, "The Political Constitution of Criminal Justice," available here.  It's a typically interesting and beautifully written piece.   Let me offer up a quote from the opening:

"[The relationship between criminal justice and the politics of crime] seems straightforward: politicians ignore the interests of criminal suspects and defendants, so the Supreme Court steps in to protect these interests.  On this view, politics is to constitutional law as a disease is to the medicine that cures it.  [Para.]  America's politics of crime is indeed diseased.  But the metaphor may get causation backward.  The constitutional proceduralism of the 1960s and after probably helped create the harsh justice of the 1970s and after.  Overcriminalization, excessive punishment, racially skewed drug enforcement, overfunding of prisons and underfunding of everything else -- these familiar political problems are as much the consequences of constitutional regulation as the reasons for it.  The medicine is reinforcing the disease."

I'll let the well-qualified criminal law folks fight over the meat of Stuntz's argument.  Let me discuss a point that is related but, I think, orthogonal to Stuntz's piece.  I have long thought it would be interesting to see serious work on 1) the political economy of habeas reform in the 1980s and 9os and 2) the internal and external political economy of law firm pro bono work in capital cases.  Specialization and time constraints prevent me from doing the first piece, though I may yet write for publication (or merely blog) on why large law firms should basically cease doing pro bono work and pay others to be virtuous on their behalf. 

But I think the first issue is worth someone's time and work.  Large law firms doing pro bono work on capital cases long focused on federal habeas litigation.  In so doing, they focused on exactly what you would expect them to focus on: relatively low-cost, low-time, high-prestige work in an area with which they are comfortable -- non-trial-based, procedurally oriented federal litigation.  But were their efforts ultimately valuable to anyone (other than to their own prestige, self-image, and ability to attract associate talent)?  It seems possible, if not likely, to me that they achieved exactly the opposite of their purported goal of properly functioning criminal justice.  By achieving some high-profile successes, and by protracting the length and complexity of post-conviction procedures, they spurred Congress to enact legislation crippling these aspects of the criminal justice system.  So, in the one area in which they had expertise, the big-firm pro bono types succeeded only in hobbling the usefulness and availability of habeas as a remedy for unfair convictions and sentences.  If these firms truly cared about criminal justice, they ought to have spent their resources on 1) state court trials (an area in which they lack any great expertise, although they would still outperform many appointed counsel -- but only if the firms were willing to incur substantial costs in time and money) and 2) lobbying state legislatures for improvements and funding increases for appointed counsel (an area in which many big firms do have expertise, although they would risk undermining lobbying efforts on behalf of other clients).  Another example, perhaps, of the high cost of what purport to be good intentions -- and a reminder that altruism is far from the only motive for pro bono work.   

Posted by Paul Horwitz on October 5, 2005 at 01:20 PM in Article Spotlight | Permalink

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Comments

great article. althought i do not agree with all of you article i would love to read more of ur blogs

Posted by: background checks | Nov 9, 2005 5:17:40 PM

Yes, I agree that Stuntz's work in this respect is very provocative, and potentially important. I'm much more interested, however, in a question that is orthogonal to Prof. Horwitz's post, namely: How did the adjective "orthogonal" gain such a stronghold in legal discourse? Until I recently started hanging around among legal academics, I had rarely, if ever, heard the word used in a nonmathematical context. But now, nary a conversation at a legal symposium goes by, nor a major law review article published, in which someone doesn't use "orthogonal" w/r/t an *idea* or a *topic of discussion.* Of the 223 hits on Westlaw, fully 140 of them are from 2000 or later, and there appear to be virtually no nonmathematical uses of the term in a law review before 1990. It's like kudzu, sweeping the legal landscape. How did this happen?! Were legal academics previously in the habit of saying that one idea or notion was "perpendicular" to another -- only to later decide that "orthogonal" had more scholarly cache? Was the legal academy inundated by a bunch of joint-degree mathematics PhDs?

Inquiring minds sincerely wish to know.

Posted by: Marty Lederman | Oct 5, 2005 2:38:49 PM

Respectfully, I think your comments are less an objection to what I've written than an agreement. Your points are encompassed within my post, where I note my nascent, one-day-to-be-written argument that firms ought to subsidize the work of others rather than do pro bono work themselves, and where I argue that prestige, self-image, and associate recruitment are major motivating factors for big firm pro bono work (I could have added some other factors; one is implicit in what I've written -- giving associates federal litigation experience in cases that are not life and death [for paying clients, that is]). Note, however, that I am not saying, as you seem to be saying, that altruism, ideology, or a sense of professional duty are not -ever- factors; just that they are not the only factors, and that these other factors determine the particular, and in my view non-optimal, direction that big firms take in doing pro bono criminal work.

Posted by: Paul Horwitz | Oct 5, 2005 1:41:19 PM

"If these firms truly cared about criminal justice..."

Objection, foundation. Who is arguing that big firms do pro bono work because they care about criminal justice? Big firms do pro bono for two main reasons. First, to give their bored-out-of-their-mind-from-doing-document-review associates something interesting to do; and for publicity. Anyhow, it would make much more sense for a firm to not suffer the opportunity cost of having a $300-an-hour associate work on something when there's a sucker doing public interest work for much less. So if big firms really cared about legal services for the poor, they'd not lose the money from having their associates work on these projects, but instead donate the money to legal aid.

Posted by: Mike | Oct 5, 2005 1:34:26 PM

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