Law Review: Criminal Defendants Have Limited Ability to Make Meaningful Choices, Especially in Capital Trials

A new law review arti­cle high­lights the lack of pro­tec­tions for crim­i­nal defen­dants’ rights to make mean­ing­ful deci­sions despite court-rec­og­nized rights to auton­o­my. In ​“The Myth of Autonomy Rights,” a 2021 arti­cle pub­lished in the Cardozo Law Review, Professor Kathryn E. Miller (pic­tured) argues that there are inad­e­quate safe­guards for the auton­o­my rights of the aver­age crim­i­nal defen­dant, espe­cial­ly in cap­i­tal punishment cases.

Professor Miller, a Clinical Assistant Professor of Law at Cardozo Law School, for­mer pub­lic defend­er, and for­mer cap­i­tal defend­er at the Equal Justice Initiative, finds that ​“the law has failed to pro­tect the auton­o­my of crim­i­nal defen­dants.” Miller exam­ines the effi­ca­cy of six ​“auton­o­my rights”: the right to self-rep­re­sen­ta­tion, the right to plead guilty, the right to waive a jury tri­al, the right to tes­ti­fy, the right to waive an appeal, and the right to insist on inno­cence at a capital trial.

Professor Miller argues that the U.S. Supreme Court grant­ed a hol­low auton­o­my right when it rec­og­nized ​“the right to insist on inno­cence at cap­i­tal tri­als” in McCoy v. Louisiana. In the 2018 deci­sion, the Supreme Court over­turned Louisiana death-row pris­on­er Robert McCoy’s con­vic­tion because his attor­ney admit­ted McCoy’s guilt at tri­al despite McCoy’s ​“adamant” and ​“vocif­er­ous” insis­tence that he was inno­cent. The Court ruled this con­ces­sion of guilt vio­lat­ed McCoy’s Sixth Amendment right to coun­sel. Miller argues that a per­son in McCoy’s sit­u­a­tion could not pos­si­bly be afford­ed with a mean­ing­ful choice. ​“The sur­veil­lance and con­trol of pre­tri­al deten­tion, in com­bi­na­tion with the threat of death or life impris­on­ment, do not cre­ate a sce­nario where autonomous deci­sion-mak­ing is pos­si­ble,” she writes. Miller con­cludes that ​“mean­ing­ful auton­o­my can­not exist in the cap­i­tal crim­i­nal legal sys­tem, which oper­ates as an even more coer­cive sys­tem with­in the crim­i­nal legal system.”

The arti­cle also focus­es on the role that race plays in deny­ing crim­i­nal defen­dants true auton­o­my. According to Miller, defen­dants do not have mean­ing­ful options when decid­ing whether to waive tri­al by jury because “[i]n many court­rooms, the iden­ti­ty of judges and jurors does not dif­fer sig­nif­i­cant­ly — with both being dis­pro­por­tion­ate­ly white — because of the bar­ri­ers placed on jury ser­vice.” Capital juries are even less diverse than oth­er crim­i­nal juries because death qual­i­fi­ca­tion, or the prac­tice of requir­ing poten­tial jurors to state their abil­i­ty to the­o­ret­i­cal­ly impose a death sen­tence, dis­pro­por­tion­ate­ly excludes Black potential jurors. 

Professor Miller explains that the right to tes­ti­fy is often a catch-22 for Black defen­dants. Studies show judges are often more skep­ti­cal of Black defen­dants’ expres­sions of remorse, which is espe­cial­ly dam­ag­ing in cap­i­tal cas­es because remorse is often used as a mit­i­gat­ing fac­tor in cap­i­tal sen­tenc­ing. However, jurors also penal­ize defen­dants for not tes­ti­fy­ing, which leaves defen­dants, espe­cial­ly Black defen­dants, with an impossible choice. 

Addressing the right to plead guilty, Miller notes that the vast major­i­ty of defen­dants plead guilty. Relying on empir­i­cal stud­ies and first­hand accounts, Miller describes the coer­cive meth­ods that pros­e­cu­tors, defense attor­neys, and judges use to encour­age crim­i­nal defen­dants to plead guilty instead of go to tri­al. She also explains struc­tur­al fac­tors that con­tribute to guilty pleas includ­ing the bur­den of pre-tri­al deten­tion and exces­sive case­loads for public defenders.

Miller also argues that while defen­dants tech­ni­cal­ly are grant­ed the right to self-rep­re­sen­ta­tion, ​“detained defen­dants — par­tic­u­lar­ly those in seri­ous cas­es — have no way of actu­al­iz­ing this right,” due to their inabil­i­ty to access phys­i­cal evi­dence and restric­tions on com­mu­ni­ca­tion. Examining the forced choice between an over­worked pub­lic defend­er or self-rep­re­sen­ta­tion, Miller writes that ​“for indi­gent defen­dants, the deci­sion to accept coun­sel or self-rep­re­sent often comes down to a belief in which option is the less­er of two evils.” 

Further, Miller asserts that the right to for­go an appeal, espe­cial­ly in cap­i­tal tri­als, is not an autonomous one because a cap­i­tal defen­dant remains on death row and is often expe­ri­enc­ing bad prison con­di­tions, dete­ri­o­rat­ing men­tal health, and feel­ings of hope­less­ness. In some cas­es, the con­di­tions of con­fine­ment lead to the act of ​“vol­un­teerism,” in which a death-row pris­on­er for­goes appeals and expe­dites their exe­cu­tion. Volunteers account for approx­i­mate­ly 10% of all exe­cu­tions in the United States. Miller argued that this nar­row choice to not assert a right is ​“no auton­o­my at all.” 

Ultimately, Miller con­cludes that instead of rely­ing upon court-pro­scribed auton­o­my rights, schol­ars and advo­cates should focus on ​“col­lec­tive resis­tance” as a source of auton­o­my for crim­i­nal defen­dants. In sup­port of this refram­ing, she explores the par­al­lels between the crim­i­nal legal sys­tem and chat­tel slav­ery and notes the impor­tance of col­lec­tive resis­tance as a response to enslavement.