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The title of this post is the title of this notable new article recently posted to SSRN and authored by Walter Gonçalves. Here is its abstract:
Existing scholarship on the vanishing federal trial does not explain how assistant federal public defenders (AFPDs) have been affected by the plea-bargaining machine. Without an understanding of the repercussions to line attorneys, heads of federal public defender offices (FPDOs) cannot take proactive measures. The result is low morale among staff, difficulty training litigation skills, and lower quality representation. This state of affairs exacerbates non-trial resolutions as defenders know only how to push pleas.
FPDOs must train AFPDs to better screen cases for trial and improve courtroom litigation. They must also focus on how the plea-bargaining machine has affected racial minorities as seen in charging and sentencing disparities. The historical oppression of African Americans, Latinxs, and American Indians made it easier to justify laws that ignited plea-bargaining hegemony: sentencing guidelines, mandatory minimums, and fast-track programs.
David Patton, Executive Director for the Federal Defenders of New York, authored an influential essay published in the Yale Law Journal, “Federal Public Defense in an Age of Inquisition.” He compared federal practice in 2012, when he wrote it, to the time of Gideon v Wainwright. Patton concludes that today’s criminal defendant is more likely to be of color, in custody, face more prison time, and less likely to go to trial. While relevant a decade later, the analysis does not develop problems of race, nor realistic improvements.
The better theoretical lens considers race and supplies solutions through training. This Article shows how sentencing guidelines, mandatory minimums, and fast-track programs operate in AFPD work, highlights problems for defendants of color, and proposes strategies FPDOs can apply to blunt the impact of the decreasing trial rate.
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