Criminal defenders and Community Justice: The drug court example

American Criminal Law Review

Volumn 40, Issue 4, 2003, Pages 1595-1608

  Simon, William H ^a  

^a Och Spine at New York Presbyterian Hospitals   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 2442637507     PISSN: 01640364     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Note

References (29)

1. JAMES L. NOLAN, JR., REINVENTING JUSTICE: THE AMERICAN DRUG COURT MOVEMENT 40 (2001).
2. See generally ANTHONY PLATT, THE CHILD SAVERS: THE INVENTION OF DELINQUENCY (2d ed. 1977).
3. Here I follow Michael C. Dorf and Charles F. Sabel, Drug Treatment Courts and Emergent Experimentalist Government, 53 VAND. L. REV. 831, 834, 837-39 (2000) (arguing that a model for treatment courts as open and evolving experimentalist institutions allows for continuous development and innovation).
4. E.g., MODEL CODE OF PROF'L RESPONSIBILITY Canon 7 (1980).
5. E.g., DAVID LUBAN, LAWYERS AND JUSTICE: AN ETHICAL STUDY 58-66 (1988).
6. For an example of this line of thinking, see Murphy v. Waterfront Commission, 378 U.S. 52, 55 (1964). The Court delineated a litany of "fundamental values" involved in the criminal justice system, including: [O]ur sense of fair play which dictates a fair state-individual balance by requiring the government to leave the individual alone until good cause is shown for disturbing him and by requiring the government in its contest with the individual to shoulder the entire load,...our respect for the inviolability of the human personality and of the right of each individual to a private enclave where he may lead a private life,...our distrust of self-deprecatory statements. Id. (internal quotes omitted).
7. See generally William H. Simon, The Ethics of Criminal Defense, 91 MICH. L. REV. 1767 (1993); William Stuntz, The Uneasy Relation Between Criminal Procedure and Criminal Justice, 107 YALE L.J. 1 (1997).
8. See generally William H. Simon, The Ethics of Criminal Defense, 91 MICH. L. REV. 1767 (1993); William Stuntz, The Uneasy Relation Between Criminal Procedure and Criminal Justice, 107 YALE L.J. 1 (1997).
9. For a discussion of the ethical concerns of defense lawyers, see NOLAN, supra note 1, at 77-81; John Feinblatt & Derek Denckla, Prosecutors, Defenders, and Problem-Solving Courts, 84 JUDICATURE 207 (2001); Mae C. Quinn, Whose Team Am I On Anyway?: Musings of a Public Defender About Drug Treatment Court Practice, 26 N.Y.U. REV. L. & SOC. CHANGE 37 (2000).
10. For a discussion of the ethical concerns of defense lawyers, see NOLAN, supra note 1, at 77-81; John Feinblatt & Derek Denckla, Prosecutors, Defenders, and Problem-Solving Courts, 84 JUDICATURE 207 (2001); Mae C. Quinn, Whose Team Am I On Anyway?: Musings of a Public Defender About Drug Treatment Court Practice, 26 N.Y.U. REV. L. & SOC. CHANGE 37 (2000).
11. For a discussion of the ethical concerns of defense lawyers, see NOLAN, supra note 1, at 77-81; John Feinblatt & Derek Denckla, Prosecutors, Defenders, and Problem-Solving Courts, 84 JUDICATURE 207 (2001); Mae C. Quinn, Whose Team Am I On Anyway?: Musings of a Public Defender About Drug Treatment Court Practice, 26 N.Y.U. REV. L. & SOC. CHANGE 37 (2000).
12. From some ethical perspectives, the fact that the community court model gives the lawyer a long-term responsibility for the welfare of the client is an advantage over the Warren Court model. In the first liberal critique of Warren Court Libertarianism, John Griffiths numbered the fact that the lawyer had no responsibility to the client after she had exhausted defenses to the charges-for example, no responsibilities to protest inhumane conditions of confinement-among its ethically unattractive features. John Griffiths, Ideology in Criminal Procedure, or A Third "Model" of the Criminal Process, 79 YALE L.J. 359 (1970).
13. See, e.g., MODEL RULES OF PROF'L CONDUCT R. 1.2(d) (2002).
14. See, e.g., ABA Comm. on Ethics and Prof'l Responsibility, Formal Op. 366 (1992) (noting the disclosure obligations of a lawyer who discovers that her client has violated a court order during litigation).
15. STEVEN BELENKO, NAT'L CTR. ADDICTION AND SUBSTANCE ABUSE, RESEARCH ON DRUG COURTS: A CRITICAL REVIEW 2001 UPDATE 22 (2001) (reporting results of a multivariate analysis of drug court participants that depicted an association between the imposition of various drug court sanctions and both an increased rate of rearrest and a decreased probability of eventual program graduation).
16. See MODEL CODE OF PROF'L RESPONSIBILITY EC 7-19 (1980).
17. See William H. Simon, Lawyer Advice and Client Autonomy: Mrs. Jones's Case, in ETHICS IN PRACTICE: LAWYERS' ROLES, RESPONSIBILITIES, AND REGULATION 165 (Deborah L. Rhode ed., 2000).
18. See NOLAN, supra note 1, at 62-75.
19. See generally, Kim Taylor-Thompson, Individual Actor v. Institutional Player: Alternating Visions of the Public Defender, 84 GEO. L.J. 2419, 2442 (1996).
20. See John Dzienkowski, Positional Conflicts of Interest, 71 TEX. L. REV. 457, 540 (1993).
21. Of course, all defendants are entitled to counsel, and counsel has a duty to raise any plausible defenses. So all these claims will be raised in one way or another. But in jurisdictions with a high-quality public defender program, public defenders are often more able and have more resources to conduct defenses than the assigned counsel to whom defendants are remitted when the program does not take the case.
22. See Taylor-Thompson, supra note 16, at 2441-42.
23. Id. at 2436-47 (posing a scenario where the police department obtains a new electronic device that purports to determine an individual's truthfulness).
24. Id. at 2457.
25. Id. at 2450 (posing hypothetical scenario in which defenders office would oppose such a strategy, in lieu of prison time, because it forces a client to make an impossible choice).
26. Id. at 2434-35 (asserting that when confronted by a conflict of interest between clients, "traditional defender offices tend to adopt individuated strategies almost reflexively").
27. See INSTITUTE OF MEDICINE, CROSSING THE QUALITY CHASM: A NEW HEALTH SYSTEM FOR THE 21ST CENTURY 130-39 (2001). One indication of both the trend toward interdisciplinary professional teams and the difficulty lawyers have in adapting to it is the controversy about the relative responsibilities of lawyers and accountants for some of the disastrous decisions in the Enron scandal.
28. See Joann Lublin et al., How Real Are the Reforms?: Corporate-Oversight Bill Will Mean More Change, Confusion, WALL ST. J., July 29, 2002, at B1.
29. Dorf & Sabel, supra note 3, at 861-65.