Federal Public Defense in an Age of Inquisition
122 Yale L.J. 2578 (2013).
This Essay asks whether federal criminal defendants receive fairer process today than they did in 1963, when Gideon v. Wainwright was decided. It concludes that in many situations they do not; indeed, they often receive far worse. Although Gideon and the Criminal Justice Act of 1964 undoubtedly improved the quality and availability of counsel in the federal courts, extraordinary damage has been done since then to the aspect of the criminal justice system that makes lawyers so valuable: the adversary process. Sentencing severity, the control of that severity by prosecutors rather than judges or juries, and high rates of pretrial detention have greatly limited defendants’ ability to challenge the government’s version of the facts and the law. This Essay briefly describes federal criminal practice as it existed in 1963 and illustrates the shifts that have occurred by discussing current practice in the federal public defender office in New York City.