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Hashimoto on Criminal Defendant Autonomy

By Lawrence Solum

Erica J. Hashimoto (University of Georgia Law School) has posted Resurrecting Autonomy: The Criminal Defendant's Right to Control the Case (Boston University Law Review, Forthcoming) on SSRN. Here is the abstract:

In Faretta v. California, the Supreme Court exalted the value of autonomy ? the criminal defendant?s interest in presenting and controlling the defense. Over the course of the past thirty-five years, however, the Court?s enthusiasm has dissipated, and commentators have criticized courts that have given defendants any measure of control over their cases. As a result, lower courts increasingly have shifted control from defendants to their lawyers.

In light of that retrenchment, this Article reevaluates the autonomy interest on its merits. This reexamination confirms that Faretta got it right, and the Supreme Court should revitalize the constitutional interest of criminal defendants in controlling their own cases. Both the history and the text of the Bill of Rights demonstrate that the Framers intended to protect defendants? control over their own cases. The legitimacy of the criminal justice system, moreover, rests on the foundational principle that society cannot punish a defendant by diminishing or denying his autonomy without first determining the defendant?s guilt through the criminal process. Because that process necessarily precedes a finding of guilt, the government cannot legitimately curtail the defendant?s autonomy during the course of those proceedings.

The discomfort of the Court and commentators with the autonomy interest arises from three interrelated arguments: (1) that lawyers make better decisions than clients; (2) that defendants waive their autonomy rights by agreeing to be represented by counsel, in particular court-appointed counsel; and (3) that autonomy rights threaten mentally ill defendants. Each of these arguments, however, has critical flaws. First, the paternalistic notion that lawyers should be entrusted with all decision-making in criminal cases because their law degrees qualify them to choose more wisely than defendants lacks empirical support and is inconsistent with landmark Supreme Court precedent. Second, the argument that defendants waive their autonomy interest by accepting representation ignores the reality that defendants need to retain some control over their cases because the indigent defense system creates powerful incentives for lawyers to breach their duty of loyalty to clients. Finally, the concern that mentally ill defendants will exploit any autonomy interest to their own detriment should be addressed by a narrow rule targeted at mentally ill defendants, rather than by denying rights to all defendants.

Full post as published by Legal Theory Blog on February 04, 2010 (boomark / email).