Barton and Bibas’s suggestions about misdemeanor would increase charges and harm defendants.
The world—in particular its technology, connectivity, and the concomitant availability of information—has changed drastically over the last twenty years. The practice of law, and specifically its ethical governing bodies, has not.
Rebooting Justice, written by Professor Benjamin H. Barton and Judge Stephanos Bibas, quite rightly turns a critical eye not only to this disconnect but also to the self-interest that may motivate ethical rules preventing non-lawyers or computer-assisted programs from helping litigants perform tasks that may not need lawyers.
Much of the book is devoted to describing technological innovations that may eliminate the need for lawyers in certain types of civil cases. Because there generally is not a right to counsel in civil cases, indigent litigants usually represent themselves in these cases. Barton and Bibas quite rightly suggest that the ethical rules governing lawyers be changed to allow non-lawyers, technology, or both to assist pro se litigants. They persuasively argue that these existing ethical rules prohibiting non-lawyers from providing assistance, particularly in cases involving relatively simple fields of law with enormous numbers of pro se litigants, are self-serving and harmful to the very people the rules intend to protect.
But Barton and Bibas’s discussion of criminal cases is not nearly as persuasive as their treatment of civil cases. Criminal cases present somewhat different issues than civil cases do. Many criminal defendants—whether they are charged with felonies or misdemeanors imprisonment or probationary sentences that can be enforced with imprisonment—have a constitutional right to counsel. Of course, as Barton and Bibas acknowledge and much other research has documented, indigent defense counsel swamped with enormous caseloads often cannot zealously represent all, or even most, of their clients.
To fix this problem, Barton and Bibas make two arguments. First, court-appointed counsel should no longer be provided to indigent defendants in less serious cases, which will vastly increase the resources of counsel in more serious cases. Second, many of the technological and information-sharing innovations suggested for civil cases should be implemented to protect the misdemeanor defendants who will no longer receive court-appointed counsel.
Because I think Barton and Bibas misunderstand the way the criminal justice system operates to process misdemeanor cases, I completely disagree on their first point. But I agree that informational innovations would be helpful for unrepresented criminal defendants.
As to the first point, the book sets forth a triage system for criminal cases, reserving appointed lawyers and prosecutors for felonies and misdemeanor cases carrying a potential penalty of more than six months, as well as a few other kinds of cases where defendants need special protection. According to Barton and Bibas, because there are many more of these less serious misdemeanor cases than either serious misdemeanor or felony cases, this change will result in counsel not being appointed in a significant percentage of cases in which counsel currently are being appointed. The authors argue that the savings resulting from not appointing counsel in those less serious cases can be used to improve the quality of representation and investigation in the more serious cases.
Barton and Bibas’s causal sequence misunderstands the operation of the criminal justice system at both steps. In particular, the massive savings they project can and will be redirected to more serious cases likely are chimerical. And narrowing the right to counsel may have the unintended consequence of increasing the glut of misdemeanor cases prosecuted, each of which has collateral consequences.
Barton and Bibas, most puzzlingly, never acknowledge that many misdemeanor defendants, like their civil counterparts, are not represented. Those sentenced either to imprisonment or a suspended sentence of imprisonment are constitutionally entitled to counsel, but no other misdemeanor defendants are, at least under the U.S. Constitution. Many of the misdemeanor defendants that Barton and Bibas claim will no longer have court-appointed counsel currently have no constitutional right to representation.
Of more importance, as advocacy groups and scholars have documented, many local and state courts across the country require misdemeanor defendants who do have a right to counsel to waive that right as a condition of their unrepresented guilty pleas. Defendants take these pleas either to get out of jail with the benefit of a time-served plea or simply to wrap the case up as quickly as possible. Jurisdictions that do not require waiver of counsel often simply fail to appoint counsel to those constitutionally entitled to be represented.
The reality is that jurisdictions with the most under-funded and over-worked indigent defense systems—the ones that most need the additional money for felony representation—likely do not provide counsel in the vast majority of the cases the book identifies as leading to cost savings.
Even were there modest savings from fewer misdemeanor case appointments in some states, Barton and Bibas acknowledge but dismiss the reality that these savings will not improve the quality of representation in most felony cases. But they point to no state in which a public defender office was relieved of a significant number of misdemeanor cases and maintained the same budget. Indeed, Barton and Bibas cite virtually nothing (there is only one footnote in the entire chapter) to support their assertions about cost savings.
Nor is the book’s suggested approach of limiting the right to counsel in misdemeanor cases costless. Barton and Bibas assert that eliminating the right to counsel in less serious cases will provide prosecutors an incentive to charge less-serious crimes because those less serious cases will not need prosecutors. Maybe. But the most likely outcome is that misdemeanor prosecutorial resources will double: Police will charge and prosecute as many minor misdemeanor defendants as possible; and prosecutors will have more time to file as many more-serious misdemeanor cases as they can. A nation of over-prosecution will be able to double or triple its prosecution rates.
The right to counsel in misdemeanor cases certainly has not perfectly protected criminal defendants. But it requires that prosecutors engage in the time-consuming project of at least assuring themselves that a crime was committed. That costs the state. Eliminating that cost will vastly increase the number of people with misdemeanor convictions. That is wrong.
Barton and Bibas’s exhortations that courts provide instruction to criminal pro se litigants would be very helpful to the vast majority of indigent misdemeanor defendants currently appearing pro se. I wish their chapter on criminal cases had said that and nothing more.
This essay is part of an eight-part series, entitled Revamping the American Justice System.