Justice Denied: America’s Continuing Neglect of Our Constitutional Right to Counsel, by the Right to Counsel Committee of the Constitution Project and the National Legal Aid & Defender Association (2009), describing the continuing denial of counsel for poor people accused of crimes and concluding that “inadequate financial support continues to be the single greatest obstacle to delivering ‘competent’ and ‘diligent’ defense representation” and that “the most visible sign of inadequate funding is attorneys attempting to provide defense services while carrying astonishingly large caseloads.”
Gideon’s Broken Promise: America’s Continuing Quest for Equal Justice by the American Bar Association’s Standing Committee on Legal Aid & Indigent Defense (2004), which reached “the disturbing conclusion that thousands of persons are processed through America’s courts every year either with no lawyer at all or with a lawyer who does not have the time, resources, or in some cases the inclination to provide effective representation.”
Three-Minute Justice: Haste and Waste in Florida’s Misdemeanor Courts by Alisa Smith & Sean Maddan, (2011), reporting that 70 percent of defendants in misdemeanor cases in 21 Florida counties entered pleas of guilty or no-contest at arraignments that lasted an average of 2.93 minutes in 2011. One third were not represented by counsel.
Minor Crimes, Massive Waste: The Terrible Toll of America’s Broken Misdemeanor Courts by Robert C. Boruchowitz, Malia N. Brink & Maureen Dimino (2009), reporting that “misdemeanor courts across the country are incapable of providing accused individuals with the due process guaranteed them by the Constitution” and describing the absence of counsel in many cases, deterrents to asking for counsel, excessive caseloads of lawyers responsible for defending the accused, inexperienced counsel, inadequate compensation for defenders, judicial conduct, lawyer burnout, and the disproportionate impact on minority communities.
The Presumption of Guilt: Systemic Factors That Contribute to Ineffective Assistance of Counsel in California, by Laurence A. Benner, 45 Cal. W. L. Rev. 263 (2009) (describing variation in quality of representation in California’s 58 counties and reporting that 24 counties rely on contracts with lawyers or firms to provide representation, often awarded on the basis of the lowest bid. One lawyer explained that he was able to handle a high volume of cases because 70 percent of his clients entered guilty pleas at the first court appearance after he spent thirty seconds explaining the prosecutor’s plea offer to them. One contract defender repeatedly fought off low bidders by reducing his budget, which had been forty-one percent of the prosecutor’s budget in 2000, to only twenty-seven percent of prosecutor’s budget in 2005. Yet in 2006, he was undercut by a bid that was almost fifty percent less than his by a firm employing the “Wal-Mart Business Model” of processing cases, “generating volume and cutting costs in ways his government-based counterparts can’t and many private-sector competitors won’t.”
A Race to the Bottom: Speed and Savings Over Due Process: A Constitutional Crisis by the National Legal Aid and Defender Association (2008), a report on representation of poor people accused of crimes in Michigan and finding lack of any comprehensive system for providing counsel and that many courts in the state do not offer counsel and accept guilty pleas in misdemeanor cases on “McJustice Days.”
Pew Center on the States, Reports on Public Safety. The Pew Center on the States have produced a number of important and informative reports. Among them are One in 100: Behind Bars in America 2008, which reported that 2,319,258 adults were held in American prisons or jails, or one in every 99.1 men and women, at the start of 2008; One in 31: The Long Reach of American Corrections, which reported in 2009 that 7.3 million, or 1 in every 31 U.S. adults, were under some form of correctional control – in custody, on probation or parole; Collateral Costs: Incarceration’s Effect on Economic Mobility (2010) (reporting, inter alia, that incarceration reduces former inmates’ earnings by 40 percent and limits their future economic mobility)and Prison Count 2010 (2010), which reported as of January 2010, there were 1,404,053 persons under the jurisdiction of state prison authorities, 4,777 fewer than on December 31, 2008, the first time there had been a decline in the overall state prison population since since 1972 (the prison population declined in 26 states, while increasing in 24 states and in the federal system).
America in the King Years, 1954-68 Taylor Branch’s meticulously researched and elegantly told history of the King era is indispensable reading with regard to race relations in America and the Civil Rights Movement:
Taylor Branch, Parting the Waters: America in the King Years 1954-63 (Simon & Schuster 1989)
Taylor Branch, Pillar of Fire: America in the King Years 1963-65 (Simon & Schuster1999)
Taylor Branch, At Canaan’s Edge: America in the King Years, 1965-68 (Simon & Schuster 2007)
Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness (New Press 2010) (an explanation of how the criminal justice system through the “war on drugs” and other means serves as a contemporary system of racial control and has led to mass incarceration)
Barbara Babcock, Woman Lawyer: The Trials of Clara Foltz (Stanford University Press 2011) (the story of Clara S. Foltz, the first woman admitted to the California Bar and the first person to propose the creation of a public defender; Foltz, who was prominent in her time as a public intellectual, leader of the women’s movement, and legal reformer, tried cases before all-male juries despite the prejudice and well-organized opposition to women lawyers)
Amy Bach, Ordinary Injustice: How America Holds Court (2009) (a description of the day-to-day workings of the criminal justice system in different parts of the country, how constitutional protections have eroded or are ignored, and how judges, prosecutors and defense lawyers accept injustices)
Douglas A. Blackmon, Slavery by Another Name: The Re-Enslavement of Black Americans from the Civil War to World War II (Doubleday 2008) (a Pulitzer Prize winning account of the brutal history of convict leasing in Alabama in which thousands of African Americans were arrested on petty crimes like “loitering” and leased to mines, lumber camps, quarries, farms and factories, which perpetuated slavery after the Civil War, intimidated blacks from political participation, and maintained white supremacy).
Steve Bogira, Courtroom 302: A Year Behind the Scenes in an American Criminal Court House (2005) (an account of a year of proceedings in a criminal courtroom in the Circuit Court of Chicago)
Kevin Boyle, Arc of Justice: A Saga Of Race, Rights, And Murder In The Jazz Age (2004) (an account of Clarence Darrow’s defense of the Ossian Sweet family, African Americans who moved into an all-white neighborhood in Detroit and were accused of murder when a member of a mob who gathered around the house was shot; in two trials, Darrow confronted the all-white, all-male jury with the racial issues in the case and their own racial attitudes, winning a mistrial and an acquittal)
Dan Carter, Scottsboro: A Tragedy of the American South (LSU Press, revised edition, 2007) (a account of the case of the “Scottsboro Boys” in which nine African American youths were charged with rape of two white women and tried before all-white, all-male juries in the midst of public hysteria and racial prejudice; their convictions and death sentence were twice overturned by the United States Supreme Court: in Powell v. Alabama, for denial of counsel at their first trials and in Norris v. Alabama, for racial discrimination in the composition of the jury pools)
Mark Curriden & Leroy Phillips, Jr., Contempt of Court: The Turn-of-the-Century Lynching that Launched a Hundred Years of Federalism (Faber & Faber 1999) (an account of the wrongful conviction of Ed Johnson, a black man, in Chattanooga in 1906 for the rape of a white woman and his heroic representation by two black lawyers, Noah Parden and Styles Hutchins, who were practicing in Chattanooga. Parden took a train to Washington and obtained a stay of execution from Justice John Marshall Harlan. In response, a mob, outraged by the “federal interference” broke into the jail and took Johnson from his cell and lynched him. Parden and Hutchins left Chattanooga and never returned. The U. S. Supreme Court found the sheriff, his deputies and members of the lynch mob in contempt of court, but they were not punished severely.
Anne Emanuel, Elbert Parr Tuttle: Chief Jurist of the Civil Rights Revolution (University of Georgia Press, 2011) (the life of Elbert Parr Tutttle who, as Chief Judge of the Fifth Circuit — then covering Alabama, Florida, Georgia, Louisiana, Mississippi and Texas – led the way in enforcing the constitutional rights of black Americans, in dismantling the American apartheid known as Jim Crow; Tuttle dealt not only with the massive resistance of demagogues in high and low office, but also with the obstructionism of federal judges committed to protecting the southern way of life, to prohibiting “race mixing,” in the parlance of those troubled times.)
David Garland, Peculiar Institution: America’s Death Penalty in an Age of Abolition (Harvard University Press 2010) (an analysis of the continued existence of the death penalty in the United States despite its abolition in the rest of the Western world, its uneven application, its many delays, and the uncertainty of its ever being carried out in particular cases; Garland attributes America’s divergence from the rest of the West to its radical federalism and local democracy, as well as its legacy of violence and racism) Justice John Paul Stevens reviewed the book in the New York Review of Books.
Paul Halliday, Habeas Corpus: From England to Empire (Harvard University Press 2010) (a sweeping study of thousands of habeas corpus cases across more than five hundred years from sixteenth century England to the United States today; reviewed by Robert Perkinson in The Nation.)
Craig Haney, Death by Design: Capital Punishment as a Social Psychological System (Oxford 2005) (an exploration of how social and psychological forces built into the capital sentencing process distances and disengages jurors from the true nature of taking the life of another human being and enables them to engage in behavior from which they would otherwise refrain)
Craig Haney, Reforming Punishment: Psychological Limits to the Pains of Imprisonment (Am. Psychological Assn. 2006) (an examination of how prison policies are doing real harm to many prisoners and increasing crime because they do not take into account the social, contextual causes of crime and minimize the harmful effects of imprisonment)
King, Gilbert, Devil in the Grove: Thurgood Marshall, the Groveland Boys, and the Dawn of a New America (Harper 2012) (an excellent account of the courageous representation of black youths accused of rape in Groveland, Florida in 1949 by Thurgood Marshall and other NAACP lawyers as well as the complete corruption of law enforcement and the courts during the Jim Crow era and the exploitation of black labor by citrus barons; the youths were arbitrarily arrested and brutally beaten in the basement of the jail until they “confessed”; they were convicted and sentenced to death at manifestly unfair trials; the Supreme Court reversed the convictions in Shepherd v. Florida, 341 U.S. 50, 55 (1951) (Justice Robert Jackson, concurring, wrote “The case presents one of the best examples of one of the worst menaces to American justice.”); in response, the sheriff while transporting two defendants shot them, killing one; Marshall and other NAACP lawyers defended the remaining defendant at this retrial despite continual threats and pervasive bigotry)
Richard Kluger, Simple Justice: The History of Brown v. Board of Education and Black America’s Struggle for Equality (Revised Ed. 2004) (a comprehensive history of the struggle for education for African Americans from slavery, to the passage of the Fourteenth Amendment, to the Supreme Court’s separate but equal doctrine, to the efforts of Charles Hamilton Houston, Thurgood Marshall and others that ultimately resulted in the Supreme Court’s decisions in Brown v. Board of Education and other notable cases in the history of the civil rights movement and desegregation of schools; see review by Yvette Zmaila)
Charles Lane, The Day Freedom Died: The Colfax Massacre, the Supreme Court, and the Betrayal of Reconstruction (the story of the mass murder of more than 60 black men in Colfax, Louisiana on Easter Sunday 1873, the cover up of the crimes, the pursuit of the killers by the U.S. Attorney in New Orleans, despite death threats, all the way to the U.S. Supreme Court, and the ruling that decided the case and how it influenced race relations in the nation for decades)
Charles J. Ogletree, Jr., The Presumption of Guilt: The Arrest of Henry Louis Gates, Jr. and Race, Class and Crime in America (Palgrave MacMillan 2010) (an account of the arrest of Professor Henry Louis Gates in front of his own home for disorderly conduct by a white police officer (the charges were dismissed four days later) and an examination the incident as a lesson on the abuse of power by police and law enforcement’s systemic suspicions about black men)
Charles Ogletree Jr. and Austin Sarat, eds, From Lynch Mobs to the Killing State: Race and the Death Penalty in America (NYU Press 2006) (chapters on race and the culture, politics and process of capital punishment by Professors Ogletree and Sarat as well as Stuart Banner, Stephen B. Bright, Benjamin Fleury-Steiner, Timothy V. Kaufman-Osborn, Mona Lynch, Glenn L. Pierce and Michael Radelet).
David M. Oshinsky, Worse than Slavery: Parchman Farm and the Ordeal of Jim Crow Justice (Free Press 1996) (an excellent history of how the criminal justice system was used in Mississippi and throughout the South after the Civil War to maintain white supremacy through convict leasing and huge plantation prisons such as Parchman Farm, the Mississippi State Penitentiary)
Robert Perkinson, Texas Tough: The Rise of America’s Prison Empire (a history of the severity of imprisonment in Texas: from slavery to convict leasing – “the most corrupt and murderous penal regime in American history”– to plantation prisons to supermax isolation to mandatory sentencing to prison privatization and assembly-line executions, and a description of how a penal system once dismissed as barbaric became a example for the nation)
Wilbert Rideau, In the Place of Justice: A Story of Punishment and Deliverance (Knopf 2010) (Rideau, condemned to death by three different juries, describes his 44 years in the Louisiana State Penitentiary at Angola where he was the editor of the prison’s award-winning magazine, The Angolite, which became an uncensored, honest, and crusading journal that reported on the violent and corrupt prison; how he found meaning, purpose and hope in one of America’s worst prisons; and how his perseverance, good work and friendships brought him to a new trial and release in 2005)
William J. Stuntz, The Collapse of American Criminal Justice (Belknap 2011) (a description of the unraveling of the criminal justice system in the last half of the twentieth century: the collapse of the rule of law as prosecutors and law enforcement obtained the power to define the law and arbitrarily enforce it, discrimination against both black suspects and black victims because of discretionary decisions by prosecutors and law enforcement (“[d]iscretionary justice too often amounts to discriminatory justice”) as well as Supreme Court decisions rendering the equal protection guarantee of the Fourteenth Amendment meaningless, the resolution of almost all criminal cases through plea bargains and the excessive severity of sentences resulting in 2.3 million people in prisons and jails. Chapter 4 regarding early Supreme Court decisions limiting the equal protection clause is particularly relevant to this course.
Kenneth Williams Most Deserving of Death? An Analysis of the Supreme Court’s Death Penalty Jurisprudence (Ashgate Publishing, March 2012) (Williams, a professor at South Texas College of Law, examines issues such as jury selection, ineffective assistance of counsel, innocence, race, and whether the death penalty is actually imposed on the worst offenders, and concludes that the application of the death penalty is inconsistent and incoherent, partly because of the Supreme Court’s decisions resulting in a lack of public confidence in the system)