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.


Kathryn Miller, The Myth of Autonomy Rights, 43 Cardozo Law Review 2 (2021).