“Defense Lawyers and the Separation of Powers”

The title of this post is the title of this new article now available via SSRN authored by Eric Fish and Chesa Boudin. Here is its abstract:

Debates over the separation of powers in criminal law ignore defense lawyers.  Prosecutors, judges, and legislators are the main focus.  Scholars analyze the distribution of power between these three actors, as well as how they check — or fail to check — each other’s authority. Meanwhile, scholars treat defense lawyers as merely representatives of their clients, not as government actors or policymakers.  But this is an incomplete view.  Modern defense lawyers exercise distinctive powers in the criminal justice system.  They are also largely institutional insiders appointed by the state. One cannot understand the contours of power in an American criminal courthouse without knowing how its indigent defense system works.

This Article brings defense lawyers into the criminal law separation-of-powers debate.  It proposes that we should understand defense counsel as exercising a sui generis “defense power,” distinct from the traditional categories of legislative, judicial, and executive power.  It then uses that more expansive view to develop three arguments: (1) Competent and assertive defense lawyers are necessary to, though not sufficient for, a robust dynamic of checks and balances in the criminal justice system.  Effective defense lawyers help to limit prosecutorial and judicial power.  That, in turn, protects important liberty interests and the rule of law. (2) Defense lawyers’ effectiveness as a check depends, in significant part, on separation of powers questions.  In particular, the political independence of defense lawyers is crucial.  When defense lawyers are captured by other system actors, like judges or county governments, their ability to vigorously defend their clients is compromised. An effective defense power is thus largely contingent on institutional design — e.g. the choice between contract counsel, direct judicial appointment, a public defender’s office, and other models.  (3) Defense lawyers legitimately exercise collective power in the criminal justice system. They do so in a variety of ways — through litigation, work stoppage, vetoing judges, and other strategies.  Such collective action is properly viewed in traditional Madisonian terms.  Defense lawyers pursue their interests, and the interests of their clients, using their leverage within the system to counterbalance other actors.