Supreme Court rhetoric, scholarly discussion, blackletter law, and ethical rules have perpetuated a myth that individual rights protect the autonomy of defendants within the criminal legal system. To expose this myth, I examine six rights that the Court has enshrined as essential decision points for criminal defendants due to the rights’ purported expressive and consequential functions: (1) the right to self-representation; (2) the right to plead guilty; (3) the right to waive a jury; (4) the right to testify; (5) the right to waive appeals; and (6) the right to maintain innocence at a capital trial. I conclude that each of these rights fails to protect defendant autonomy.
I then argue that genuine displays of autonomy under the criminal legal system take the form of resistance to the law, legal advocates, and the legal system. Thus, the autonomy of criminal defendants occurs not because of law but in spite of it. As such, scholarly discussions of the personal autonomy of criminal defendants should focus not on rights and rules but on acts of resistance. The current autonomy rights discourse is harmful because it obscures the system’s defects by framing discussions around individual rights instead of structural limitations. This lends itself to solutions involving procedural tinkering to better actualize individual rights instead of radical structural reform or abolition. By obscuring these structural defects and stressing the system’s protective qualities, the autonomy rights discourse presents the system not only as legitimate, but as functional, and potentially even successful. As such, a new scholarly frame is warranted: autonomy as resistance to law and the legal system. By illuminating the ways in which autonomy in the criminal legal system resembles autonomy under the American institution of slavery, the autonomy as resistance frame exposes the need for radical structural change and facilitates a reimagining of the criminal legal system.
Introduction
Modern legal scholars take for granted that criminal defendants have individual rights that protect their autonomy within the criminal legal system.1 This Article refutes that notion, arguing that structural limitations in the current criminal legal system render the law unable to protect the autonomy of criminal defendants. The myth of these autonomy rights is harmful because it legitimizes a system that is beyond repair by suggesting not only that opportunities for autonomy exist but that the law is functioning to protect and safeguard these opportunities. In unpacking the myth, this Article illuminates both that these rights have failed and that the expressions of autonomy that occur in the criminal legal system take the form of resistance to that system.
Respect for individual autonomy has long been an American ideal.2 The Enlightenment concept of autonomy, which emphasized personal liberty free from government intrusion, was a central value of the American Revolution and the Founding.3 The Framers sought to ensure protection of these liberties from the newly formed government through enactment of the Bill of Rights.4 Individual autonomy is thus a fundamental component of American law and legal institutions. Markus Dubber has observed that “[l]egitimacy discourse in the United States since the Revolution has revolved around autonomy.”5 This includes discourse about the criminal legal system.6 In cases like Faretta v. California7 and McCoy v. Louisiana,8 the Supreme Court has recognized the autonomy of criminal defendants to be a constitutional value that surpasses the goal of reliability in criminal—and even capital—convictions. The McCoy Court emphasized that “a defendant’s choice” in making his defense “must be honored out of that respect for the individual which is the lifeblood of the law”9 and went as far as to hold that “[v]iolation of a defendant’s Sixth Amendment-secured autonomy” amounted to structural error.10 The Model Rules of Professional Conduct seek to protect the decision-making power of criminal defendants to determine the objectives of their representation.11 The legal scholarship on the autonomy of criminal defendants is vast: legal scholars have debated the role of specific criminal procedures in safeguarding or promoting autonomy for defendants,12 disagreed whether defense attorneys should seek to maximize their clients’ autonomy,13 and queried whether autonomy ought to be subordinated to other societal values.14 Prosecutors take the defendant autonomy narrative for granted, commonly beginning an opening statement with the declaration that “this is a case about choices.”15
But much of the criminal legal system is inherently inconsistent with self-governance and self-determination. Recent scholarship has demonstrated that the criminal legal system is a vestige of racial subordination that operates disproportionately against Black and Brown individuals at every stage.16 The overwhelming majority of criminal cases involve indigent defendants.17 Thus, who enters the criminal legal system is frequently not a product of individual bad choices, but of identity and absence of power—that is, not a product of choice, but, as this Article deems it, a product of “selection.”
More obviously, punishment limits—or extinguishes in the case of capital defendants—the autonomy of those proven culpable of crimes.18 But the criminal legal system devastates the autonomy of those presumed innocent as well.19 Pretrial detention has few meaningful differences from postconviction imprisonment. In both scenarios, detainees have little bodily control, with government agents dictating their movement, surveilling their person, and restricting their communication, association, and consumption.20 Even those who avoid detention find themselves the object of state surveillance and control in the form of ankle monitoring, mandated appointments with community and social service providers, and lengthy court appearances.21
As these examples illustrate, there are three primary ways in which notions of autonomy and the criminal legal system intersect. First, the system presupposes that defendants are autonomous actors. This assumption buttresses the criminal law, enabling the criminal legal system to hold defendants accountable for their actions. Second, certain criminal rights and procedures purportedly exist to protect the ability of criminal defendants to make fundamental choices within the criminal legal system. Third, criminal punishment constrains individual autonomy. While this Article briefly touches on some of the concerns raised in each of these arenas, it focuses its analysis on the second one: the criminal rights and procedures that purportedly function to protect autonomy.
Within the criminal legal system, the Supreme Court has found that the Constitution provides certain procedural protections to accused persons by allowing them to make decisions that are “personal.” These are individual rights that the Court has found relate to the creation of—and the audience for—the defense narrative. The Court has deemed these rights personal to the defendant because they promote the defendant’s story of nonculpability and because the defendant will bear the consequences of this narrative “personally.”22 These rights include whether to plead guilty, waive the right to a jury trial, testify on one’s own behalf, forgo an appeal, and—most recently—whether to “assert innocence” at a capital trial.23 Undergirding these decisions is the right of self-representation, where the criminal defendant controls the entirety of his narrative and thus, the argument goes, bears total responsibility for the outcome of his case.24 Although one can make a case that other procedural protections seek to maximize defendant autonomy, I limit my analysis to these six, which I refer to collectively as “the autonomy rights.”
Through a discussion of the autonomy rights, I illustrate that while these rights may maximize autonomy in theory, the structural limitations of the criminal legal system prevent them from doing so in practice. Thus, while these rights may occasionally protect the autonomy of affluent defendants, they prove hollow for indigent defendants—the majority of those charged with crimes.25 The autonomy rights fail to protect criminal defendants’ ability both to make meaningful choices and to engage in fundamental self-expression.
This does not mean that it is impossible for defendants to display autonomy within the criminal legal system. Indeed, defendants do so daily in the form of acts of resistance. Instead, what it does mean is that their autonomous actions are not attributable to legal protections—i.e., autonomy rights. Put another way, when criminal defendants display agency within the criminal legal system, they do so despite the law and not because of it. In this way, the structural limitations in the current criminal legal system render the autonomy of criminal defendants analogous to that of enslaved persons under the American institution of slavery: both groups engage in autonomy not as a consequence of rights but as an expression of resistance to a legal institution.26 When historians discuss moments of autonomy displayed by enslaved people, they recognize that these moments have occurred despite the system and not because of it.27 Legal scholars should bring this same approach to analysis of the criminal legal system; we should replace the discourse of autonomy rights with what this Article defines as the discourse of Autonomy as Resistance.
Autonomy as Resistance is best described as acts of insubordination by criminal defendants to authorities within the criminal legal system. Sometimes these authorities are explicitly oppositional to the defendant: prosecutors, court officers, judges; other times, they are the very actors purported to act as the defendants’ guides and confidants: public defenders and appointed counsel. Autonomy as Resistance need not be an intentional political statement of rebellion against the criminal legal system. Often it is merely an individual’s refusal to submit to perceived injustice, unfairness, discomfort, or inconvenience. It also need not be successful. Finally, unlike the “autonomy rights discourse,” which emphasizes the role of law as a protective mechanism for the autonomy of criminal defendants, the autonomy as resistance discourse repositions law in the current legal system as antithetical to agentic aims. In this way, my theory of Autonomy as Resistance differs from scholars who suggest that rights claims are critical forms of resistance.28
The current jurisprudence and discourse of individual autonomy in the criminal legal system as a product of law—what this Article refers to as the “autonomy rights discourse”—is harmful in several ways. First, it obscures the system’s defects by framing discussions around individual rights instead of structural limitations. This lends itself to solutions involving procedural tinkering to better actualize individual rights instead of radical structural reform or abolition. Second, by obscuring these structural defects and stressing the system’s protective qualities, it presents the system not only as legitimate, but as functional, and potentially even successful. As such, a new scholarly frame is warranted: not autonomy as legally enabled self-governance, but autonomy as resistance to law and the legal system. By illuminating the ways in which autonomy in the criminal legal system resembles autonomy under slavery, the Autonomy as Resistance frame adds a thumb on the scale for the need for radical structural change and, even potentially, abolition.
I make the case for this conclusion in three Parts. In Part I, I summarize the tradition of viewing law as an instrument to protect individual autonomy in the criminal legal system, surveying Supreme Court decisions, rules of professional responsibility, and the stated aims of defender organizations. In Part II, I discuss the structural limitations of the modern criminal legal system that make it a bad fit for the legal safeguarding of individual autonomy. I then illustrate how the “autonomy rights” tend to play out in practice for indigent criminal defendants. In Part III, I invoke the American institution of slavery as a paradigmatic example of autonomous action arising as resistance to law. I then argue that modern criminal defendants’ displays of autonomy are best encapsulated by resistance to the criminal legal system, not as a meaningful exercise of legal rights. Finally, in light of this resemblance, I argue for a reframing of autonomy discourse. First, I discuss how the current discourse of autonomy rights harms criminal defendants by obscuring the need for systemic reform. Then, I argue that reframing the autonomy discourse in terms of resistance to law is both a better fit to describe the agency of criminal defendants and more likely to facilitate a necessary reimagining of the criminal legal system.
I. Autonomy Rights Discourse and the Criminal Legal System
In this Part, I explore the meaning of autonomy and summarize the ubiquity of autonomy discourse in discussions concerning the legal rights of criminal defendants by the Supreme Court, among scholars, and among practitioners. I observe that each of these constituencies recognizes defendant autonomy as a value worth protecting and assumes the ability of laws and rules to achieve meaningful autonomy in the criminal legal system.
A. Autonomy Jurisprudence
Autonomy discourse pervades criminal law, with the Supreme Court setting much of its tenor. As a result, most scholars, rule-makers, and practitioners take as given the law’s ability to protect the autonomous decision-making of individuals.
Pinning down the definition of autonomy is difficult because philosophers and legal scholars have long debated its meaning.29 Richard Fallon, Jr. has observed that autonomy “means different things to different people” and that it “occasionally appears to change its meaning in the course of a single argument.”30 Similarly, Daniel R. Williams deems autonomy “a perfect slogan” because it lacks a precise definition but has “intuitive appeal” and “because it captures a deep moral sensibility about what is properly valued in our criminal justice system.”31 Williams further contends that the autonomy slogan “rhetorically supports the moral infrastructure of the criminal law.”32
The Enlightenment concept of individual autonomy, which emphasized personal liberty free from government intrusion, frequently appears in Supreme Court opinions.33 According to this view, freedom derived from natural law and thus was inalienable; the purpose of the Bill of Rights was to safeguard this freedom.34 Nineteenth-century philosopher John Stuart Mill expanded on this concept, arguing that individual autonomy resulted in the best outcome for the individual and thus, in aggregate, the most utility for society.35 Mill believed that the individual’s ability to exercise choice and pursue reason was necessary to achieve self-fulfillment and that government interference with these qualities was desirable only when it acted to protect third parties from the individual.36 Government interference for an individual’s “own good” was anathema, unless it served to provide knowledge to an individual so that they might exercise choice consistent with their desires.37 To Mill, only this “soft paternalism” was permissible.38 Immanuel Kant argued that, regardless of social utility, respect for autonomy was morally required.39 Kant saw autonomy as a fundamental quality of personhood and posited that individuals were capable of self-governance and self-reflection as rational decision-makers.40 Consequently, the State is morally obligated to treat individuals as rational, autonomous beings.41
In the criminal arena, the Court has typically invoked autonomy in the context of representation, determining whether a particular decision belongs to a defendant or their attorney. Here, the Court frames autonomy as the capacity for self-expression and self-governance, but it does so without context, ignoring the overarching government intrusion that inherently coerces a defendant’s so-called decisions.42 Most recently, in 2018, the Court made an unabashed step in favor of capital defendants’ “[a]utonomy to decide” in McCoy v. Louisiana, when it overturned Robert McCoy’s conviction and death sentence because his lawyer conceded his guilt over Mr. McCoy’s express objection as an effort to persuade the jury to spare his life.43 Emphasizing that the Sixth Amendment entitled a defendant to “Assistance of Counsel for his defence” the Court concluded,
With individual liberty—and, in capital cases, life—at stake, it is the defendant’s prerogative, not counsel’s, to decide on the objective of his defense: to admit guilt in the hope of gaining mercy at the sentencing stage, or to maintain his innocence, leaving it to the State to prove his guilt beyond a reasonable doubt.44
The Court emphasized that the Constitution protects a defendant’s “[a]utonomy to decide that the objective of the defense is to assert innocence” at a capital trial, regardless of the wisdom or likely repercussions of that choice.45 As Justice Sotomayor stated during oral argument, “People can walk themselves into jail. They can walk themselves, regrettably, into the gas chamber. But they have a right to tell their story.”46
The Court’s decision made no mention of the path that led to Mr. McCoy having been charged with capital murder. It failed to discuss the significant evidence that revealed that Mr. McCoy was likely mentally compromised.47 It did, however, note the trial court’s ruling that Mr. McCoy was competent to stand trial—which, the Court intimated, afforded him full “autonomy rights.”48 Nor was the possible deficiency of his attorney’s advice, experience, or investigation relevant to the Court’s analysis.49 In fact, the Court explicitly chose not to analyze counsel’s effectiveness “[b]ecause a client’s autonomy, not counsel’s competence, is in issue.”50
Instead, the Court found the error to be structural because it interfered with a defendant’s right to make “fundamental choices” about the objective of their defense.51 The Court determined that whether “the objective of the defense is to assert innocence” was on par with four other autonomy rights, including “whether to plead guilty, waive the right to a jury trial, testify in one’s own behalf, and forgo an appeal.”52 Use of a quote from Justice Scalia summed up the ruling: “Our system of laws generally presumes that the criminal defendant, after being fully informed, knows his own best interests and does not need them dictated by the State.”53
The McCoy Court’s promotion of a criminal defendant’s autonomy as the right to self-expression or self-determination was not new. The decision was the direct heir of one of the Court’s most controversial54 rulings, Faretta v. California.55 In Faretta, the Court first held that criminal defendants had a Sixth Amendment right to represent themselves, provided they waived their right to counsel knowingly and voluntarily.56 The case involved a defendant charged with grand larceny who requested to represent himself at trial because he believed that his public defender had too many cases to represent him competently.57
That Faretta would employ an autonomy lens was evident from the first paragraph of Justice Stewart’s majority opinion, which rephrased the question for the Court as “whether a State may constitutionally hale a person into its criminal courts and there force a lawyer upon him, even when he insists that he wants to conduct his own defense.”58 The Court made a case for autonomy as a value ingrained in American history and culture. First, it found that federal law recognized self-representation dating back to the Judiciary Act of 1798, which stated that “in all the courts of the United States, the parties may plead and manage their own causes personally or by the assistance of such counsel.”59 Seizing on this idea of “personal rights,” the Court concluded that the Sixth Amendment conferred such a right on defendants because the structure of the Amendment implied the “right . . . to make one’s own defense personally.”60 The Court reasoned that the rights enumerated by the Sixth Amendment—which include the right to notice, confrontation, compulsory process, and assistance of counsel—all amounted to the right to make a defense at an adversarial criminal trial.61 These rights are “personal” because “[t]he right to defend is given directly to the accused; for it is he who suffers the consequences if the defense fails.”62
The Court pointedly noted that the only tribunal that had historically required representation by counsel was the notorious Star Chamber—the antithesis of the American liberty-protecting judicial system.63 Citing drafts of the Bill of Rights and contemporaneous state constitutions, the Court found that “there is no evidence that the colonists and the Framers ever doubted the right of self-representation, or imagined that this right might be considered inferior to the right of assistance of counsel,”64 concluding that those who wrote the Bill of Rights surely “understood the inestimable worth of free choice.”65 Having established that self-representation was a critical component of American democracy, the Court explained that providing a lawyer to an unwilling defendant would only “lead [the defendant] to believe that the law contrives against him.”66
The Faretta decision, like McCoy, championed self-governance devoid of contemporary context. Of course, as one scholar has observed, “Our choices are almost never wholly free; rather, they are constrained by a variety of social, economic, religious, psychological, and familial pressures . . . .”67 But by stripping away the context—and thereby the constraints—of the American criminal legal system, the Court created an illusion of legally protected autonomy that is legitimizing of that system.
In fact, the Faretta Court explicitly declined to consider in its analysis the practical realities of such an exercise of “free choice.”68 While the Court acknowledged that most people would fare better with counsel than they would representing themselves, it made clear that theoretical defendant autonomy was more important than practical consequences.69 A defendant’s technical legal knowledge or lack thereof was, accordingly, irrelevant.70 Defendants need only be informed of the disadvantages of self-representation so that they might “knowingly and intelligently” waive their right to counsel.71 With soaring rhetoric, the Court announced that only by preserving a criminal defendant’s ability to self-govern could the ideals of the American republic be actualized: “[A]lthough [the defendant] may conduct his own defense ultimately to his own detriment, his choice must be honored out of ‘that respect for the individual which is the lifeblood of the law.’”72
B. Autonomy Scholars
The scholarly discourse on the autonomy of criminal defendants has followed the Supreme Court’s framing in Faretta and McCoy. Most take for granted that autonomy—defined here as self-expression and self-determination—is both a laudable and an attainable goal for criminal defendants,73 although others believe autonomy should sometimes be subordinated to other values.74 Following Faretta, most criticism focused on the practical consequences of the ruling, questioning whether fairness and reliability were more important goals than defendant autonomy.75 Scholars debated the wisdom of the Court’s later decisions limiting the right of self-representation by approving the use of standby counsel76 and recognizing that courts could apply a higher standard for mentally compromised, but competent, criminal defendants who wished to represent themselves.77 Scholars generally approved of these rulings as striking a better balance between the goal of defendant autonomy and those of fairness and reliability.78
An exception to this trend is Erica J. Hashimoto, who has written several articles emphasizing the value of defendant autonomy and urging courts to take measures to better protect it.79 Hashimoto conducted an empirical review of federal and state court criminal cases and concluded that, for felony cases, the data did not support the assumptions that pro se defendants suffered significantly worse outcomes than represented defendants or that most pro se defendants exhibited outward signs of mental illness.80 Although Hashimoto recognized that the underlying datasets were small and incomplete, she contended that “the available data [was] sufficient to cast serious doubt on the validity of the [two] assumptions.”81 Based in part on this research, Hashimoto argued that not only was Faretta rightly decided, but the Court should reinvigorate its autonomy jurisprudence.82 According to Hashimoto, Faretta opponents made three flawed strains of arguments: (1) that lawyers are wiser than their clients; (2) that the agreement to accept counsel waived a defendant’s autonomy interest; and (3) that autonomy rights threaten defendants with mental illness.83 Hashimoto argued that rights-backed autonomy was critical for indigent defendants because counsel appointment systems had financial incentives for attorneys to breach their duty of loyalty.84 Although she conceded that a carveout was likely necessary to prevent harm to mentally ill clients, Hashimoto made clear that it should be narrowly tailored so as not to imperil the robust autonomy rights of most criminal defendants.85
The Supreme Court has twice relied on Hashimoto’s conclusions. In declining to overrule Faretta, the Court cited Hashimoto’s empirical research—without noting the limitations of her datasets—as evidence that unfair trials featuring pro se defendants were “not common.”86 The McCoy Court also cited her work for its normative positions on rights-backed autonomy, crediting her conclusion that some capital defendants may value even a remote chance of acquittal more than they desire avoiding a death sentence.87
C. “Client” Autonomy
The current debate within the criminal defense bar about the ideal model of representation takes for granted that the autonomy of criminal defendants may be facilitated by the creation of and adherence to legal rules—a notion this Article challenges. Consistent with Supreme Court jurisprudence, the Model Rules of Professional Conduct focus on defendant autonomy in the context of the attorney relationship, carving out particular decisions reserved for the client.88 Proponents of a client-centered model of criminal defense practice subscribe to a theory of representation wherein they attempt to maximize client autonomy by deferring to clients to determine the objectives—and sometimes the strategy—of their defenses.89
Under the Model Rules, “strategic” decisions and “trial management” are left to the attorney. The rules conceive of the distinction as permitting a client to determine the “objectives” or ends of the litigation, while the attorney determines the “means.” Model Rule 1.2 mandates that a lawyer “abide by a client’s decisions concerning the objectives of representation” and specifies that, in a criminal case, a lawyer must follow the client’s decision “as to a plea to be entered, whether to waive jury trial and whether the client will testify.”90 The rule reserves for attorneys the power to “take such action on behalf of the client as is impliedly authorized to carry out the representation.”91
Many have observed that this “ends” and “means” distinction leaves a multitude of gray areas, causing the defense bar to adopt different orientations around how to appropriately allocate decision-making between defendant and defense counsel.92 Two philosophies dominate: traditional, or “lawyer-centered,” representation and participatory, or “client-centered,” representation.93 According to lawyer-centered representation, after identifying the goals of the representation, the client assumes a passive role, and the lawyer relies on their training, skill, and judgment to manage the case in the way most likely to bring about the client’s desired results.94 Under client-centered representation, the attorney seeks to maximize client autonomy by encouraging clients to take an active role both in identifying priorities and in making fundamental decisions likely to have a substantial impact on the case.95 The client-centered model is premised on the idea that clients are better positioned to make case decisions because they best understand their own values and priorities.96 The lawyer’s role is “to provide clients meaningful information so as to empower them to make informed choices about their cases.”97 The last several decades have resulted in a shift from the lawyer-centered to the client-centered model, with many prestigious public defender offices now explicitly advertising themselves as client centered98—often with language that recalls the Court’s “choice” rhetoric in McCoy and Faretta.99
In addition, clinical scholarship has long supported the client-centered model of representation100 and has engaged in no significant debate regarding whether legally protected autonomy is achievable for defendants in the criminal legal system. Instead, this scholarship has tended to focus on whether and when attorneys are justified in substituting their own judgment for that of “gray area” defendants—those who, while likely legally competent, display significant symptoms of mental illness.101
Considering these attitudes, it is unsurprising that criminal defense attorneys and law professors were visibly supportive of Robert McCoy’s autonomy interest and skeptical of his attorney’s actions. Both the National Association of Criminal Defense Lawyers (NACDL) and the American Bar Association (ABA) were amici in support of Mr. McCoy. The NACDL asserted that “respect for the individual rights and decision-making of the defendant” was a “core principle” of the Fifth and Sixth Amendments.102 The brief then listed four of the six “autonomy rights”—whether to plead guilty, waive a jury, testify on his or her own behalf, or take an appeal—and asserted that “fundamental fairness requires that the accused retain the autonomy to decide them.”103 The ABA echoed these sentiments, contending that “[t]he attorney, as an assistant, is obliged to respect the client’s autonomy to make fundamental decisions about his or her case.”104
In sum, the Supreme Court’s autonomy rhetoric has informed the discourse in both the academy and the profession. Each of these groups assumes as a starting point that laws, rules, and norms within the criminal legal system can function to meaningfully protect defendant autonomy. In the next Part, I reject this assumption.
II. The Law’s Failure to Protect Defendant Autonomy
In this Part, I discuss the structural limitations of the modern criminal legal system that make it a bad fit for the protection of individual autonomy. I then illustrate how the six “autonomy rights” tend to play out in practice for indigent criminal defendants, concluding that they fail to safeguard defendant autonomy.
A. Systemic Constraints on Autonomy
Recent scholarship has emphasized the links between the institution of slavery and the criminal legal system.105 Indeed, as many have noted, the Thirteenth Amendment specifically contemplates incarceration as slavery, prohibiting all slavery and involuntary servitude, save “as a punishment for crime whereof the party shall have been duly convicted.”106 Dorothy Roberts has observed that “[t]he pillars of the U.S. criminal punishment system—police, prisons, and capital punishment—all have roots in racialized chattel slavery.”107 Roberts traced the roots of modern policing and state surveillance to slave patrols that monitored the behavior of both enslaved and free Black people and pursued those who escaped from bondage.108 She then explained how criminal punishment replaced slavery as a tool of racial subordination: “Criminal punishment was a chief way the southern states nullified the Reconstruction Amendments, reinstated the white power regime, and made free [B]lacks vulnerable to labor exploitation and disenfranchisement.”109
These scholars argue that anti-Black racial subordination did not end with the demise of slavery; rather, it evolved:110 first, into the post-Reconstruction Era of Racial Terror in which white people both lynched with impunity Black people accused of transgressing the social order111 and imprisoned them for minor “public order” offenses on mining crews or chain gangs as a method of ensuring cheap labor.112 Next, laws formalizing segregation ushered in the era of Jim Crow.113 As Ion Meyn has carefully documented, federal “reforms” during this era wrote race into criminal procedure by expanding powers of prosecutors and intentionally limiting the agency of criminal defendants, who were primarily Black, compared to that of civil litigants, who were primarily white.114 Finally, as the Civil Rights Movement brought disfavor on the use of overt racial classifications, a new “color-blind” racial subordination began in the facially race-neutral system of mass incarceration.115
While slavery constrained the autonomy of enslaved people in an obvious way, the modern criminal legal system places similar constraints on criminal defendants. The goal of the criminal legal system is to limit the autonomy of those who have demonstrated “improper” self-governance. As feminist scholars have observed, autonomy as “proper” self-governance “tends to depend on prevailing norms and [consolidates] power relations.”116 The United States incarcerates more people than any other country in the world,117 yet only one in every twenty-four arrests is for a violent crime.118 Recent scholars have argued that the American criminal legal system perpetuates white supremacy through the mass incarceration, surveillance, and control of primarily Black and Brown people.119 Law professor and former federal prosecutor Paul Butler sums up this reality: “American criminal justice today is premised on controlling African American men.”120 As of 2018, Black men were 5.8 times more likely to be incarcerated as white men, and Black women were 1.8 times more likely to be incarcerated as white women.121 While racial subordination is paramount, unique experiences of discrimination exist for those whose identities occupy the intersection of multiple axes of oppression within the criminal legal system, including gender, gender identity, age, immigration status, ability, and housing status.122
This Section demonstrates how these two structural aspects of the criminal legal system—its white supremacist lens and its massiveness—work in tandem to create a criminal legal system in which law does not function to protect the autonomy of criminal defendants.
The biggest myth of the criminal legal system is that most of those who become entangled within it do so because of their “bad choices” to commit criminal acts.123 This is the myth that fuels the opening, closing, and sentencing arguments of prosecutors who attempt to convey that conviction and punishment are necessary for those whom they contend improperly self-govern.124 While choice undoubtedly factors in for some, it is not the dominant mechanism by which a person becomes a defendant.125 Frequently, a person becomes a defendant, not because of the decisions they make, but because of their identity, in a process I call “selection.” The great majority of those selected are Black, Brown, and/or indigent. Black people are more than twice as likely to be arrested as white people.126 Nearly half of Black men and forty-four percent of Latino men can anticipate being arrested at least once by age twenty-three.127 Disproportionate arrests stem, in part, from disproportionate street encounters, as police are far more likely to stop and frisk Black and Brown people. Data from cities and towns across the country underscore that Black and Brown people are stopped, detained, and arrested often to a degree that exceeds their actual numbers in the population.128
Moreover, there are some criminal charges that law enforcement reserves primarily for Black people. These tend to be crimes that permit officers a high degree of discretion. For example, in Ferguson, Missouri, from 2011 to 2013, ninety-five percent of those charged with Manner of Walking in Roadway were Black, as were ninety-four percent of those charged with Failure to Comply.129 Similarly, the Justice Department’s investigation of the Baltimore City Police Department concluded that charges such as Failure to Obey, Trespassing, Making a False Statement, and Disorderly Conduct were disproportionately levied against Black people.130
In addition to its white supremacist selection process, the American criminal legal system has expanded exponentially in the last half-century: it has become massive. In 2013, the city of Ferguson issued nearly eleven thousand more arrest warrants than its total population—most of which involved traffic offenses.131 Somewhat infamously, the Ferguson Police Department arrested a man and charged him with Making a False Declaration because he told them his name was “Mike” instead of “Michael.”132 Baltimore police arrested and charged African Americans with one offense for every 1.4 African American residents—resulting in a city with nearly as many crimes as people.133
Americans look to the criminal legal system to solve a host of perceived problems unrelated to criminal activity and thereby support the criminalization of behavior that is merely undesirable or annoying. Devon Carbado has deemed this phenomenon “mass criminalization.”134 Carbado illustrates mass criminalization with a list of “nonserious behaviors and activities” that states have criminalized, including, among other examples: spitting in public places; loitering; panhandling; public camping; possessing spoons, bowls, blenders, or other purported drug paraphernalia; jaywalking; riding bicycles on the sidewalk; removing trash from a bin; and urinating in public.135 Carbado notes that not only are many of these crimes vaguely defined, but they are disproportionately committed by people who are poor.136 Their ubiquity in combination with their vagueness give police nearly limitless discretion in determining whom to arrest.137 Dorothy Roberts has commented on this intersection of mass criminalization and racial subordination: “Criminalizing [B]lack people entailed both defining crimes so as to make [B]lack people’s harmless, everyday activities legally punishable and punishing [B]lack people regardless of their culpability for crimes.”138
Paul Butler has illustrated the danger of expansive police discretion in the context of mass criminalization. As a law professor, Butler arranges for his students to do ride-alongs with police:
The game is called Pick a Car. [The police officer] tells the students to pick any car they see on the street and he will legally stop it. He says that he can follow any driver and within a few blocks he or she will commit some traffic infraction. . . . This gives him an enormous amount of power. As a practical matter, if you are driving a car, he can stop you at will. This is exactly what the police do to African Americans and Hispanics.139
Discretion and mass criminalization thus work in tandem to provide the agents of the white supremacist state a mechanism to cabin the self-governance of Black and Brown people.140 However, other “undesirables” have also been caught in this net, including poor whites,141 queer people, gender nonbinary people, and disabled people,142 with many experiencing the subordination of the criminal legal system based on multiple, intersectional identities.143
What should be clear is that the criminal legal system is not a place where most individuals opt in through their own deviant choices. Instead, many criminal defendants are selected for participation in the criminal legal system by state agents due to the defendants’ passive membership in disfavored groups. Black and Brown criminal defendants suffer the limits placed on their autonomy most acutely, due to the false narrative of Black criminality that has long justified their detention. However, this Article contends that all indigent defendants lack legally protected opportunities for meaningful autonomy following their selection for participation in the criminal legal system.
While criminal punishment inherently involves deprivation of autonomy, criminal process does as well.144 From the moment an individual encounters law enforcement, the individual’s ability to self-govern is limited both theoretically and practically by a police officer’s subjective belief that the individual has behaved in a “reasonably suspicious manner” and thus is not free to leave.145 If the individual disagrees with the police officer’s conclusion, the officer will respond with a physical attempt to deprive the individual of liberty, or in some cases, life.146 If the police officer’s conclusion is objectively incorrect, the individual might be able to recover future financial recompense or have evidence excluded from a criminal case, but no neutral arbiter exists on the street to prevent the individual’s forceable detention.147 Instead, it will be hours, possibly days, before the individual is brought before the neutral arbiter, a judge, whose job is not yet to determine the legality of the individual’s detention, but instead to decide whether or not the individual will be permitted to pay for their freedom.148 Those who cannot afford freedom will be transferred to what is known as preventive detention, or pretrial detention, but what is actually jail.149 Those who can pay will still find themselves obligated to attend court appearances, typically determined with no regard for their schedules, and often requiring them to miss work or school and to find childcare.150 In some jurisdictions, their release may be conditioned on further supervision, including mandatory attendance at a drug or jobs program or electronic ankle monitoring.151 Sometimes, these judicial and extrajudicial appearances will go on for years before resolution of the case.152 This is the level of deprivation of liberty that an innocent person charged with a misdemeanor would receive in the relatively progressive New York City—that is to say, it is the best-case scenario.153
Of course, the other arena in which indigent defendants suffer disproportionately is pretrial detention resulting from an inability to afford bail. The Supreme Court has repeatedly noted the distinction between a defendant’s constitutional rights before and after they have received a criminal conviction. In Faretta154 and McCoy155—both preconviction cases—the Court emphasized the strength of the defendant’s Sixth Amendment rights, explaining in later cases that because the defendant is still imbued with the presumption of innocence, he has greater autonomy rights at this stage.156 Conversely, in cases where defendants have either pled guilty or have been adjudicated guilty beyond a reasonable doubt, the status of the defendant “changes dramatically.”157 In these cases, the Court has found that only due process applies and that the defendant’s autonomy interest is reduced as a result of their conviction.158
Yet despite the Court’s theoretical legal distinction,159 pretrial detention is the functional equivalent of posttrial carceral punishment, as far as individual autonomy is concerned.160 Defendants who cannot afford bail must await the resolution of their case in a city or county jail.161 Just as in prisons, jails surveil and control nearly every aspect of a person’s life, including bodily movement, association, and access to information, food, hygiene, and recreation.162 Many jails and prisons routinely employ harsh measures such as mandatory strip searches,163 corporal punishment,164 and solitary confinement.165 Research shows that extended time in solitary confinement leads to the development of psychiatric symptoms, including hallucinations, panic attacks, difficulty concentrating, memory lapse, obsessive thoughts, paranoia, impulse control, and hyperresponsivity to stimuli.166 Mental health conditions are often exacerbated because jails rarely have even the minimal mental health treatment found in prisons; consequently, suicide is a leading cause of death for individuals in pretrial detention.167
This is the context within which indigent criminal legal defendants are granted so-called autonomy rights. In the next Section, I will examine each of these rights to determine if indigent criminal defendants have a meaningful opportunity to exercise their autonomy through the protection of these rights.
B. Exercising the “Autonomy Rights”
The Supreme Court has found that the Constitution entitles criminal defendants to make decisions in six instances where an autonomy interest is paramount. The Court has deemed these rights “personal” because a defendant will personally experience the consequences associated with these decisions.168 These rights include whether to plead guilty, waive the right to a jury trial, testify on one’s own behalf, forgo an appeal, “assert innocence” at a capital trial, and—most fundamentally—self-represent.169 Each of these purported decisions relates to the creation of—and the audience for—the defense narrative; they promote the defendant’s story of nonculpability.170 Below, I examine each of these so-called decision points to determine if the law protects meaningful autonomy for indigent criminal defendants operating within the criminal legal system. I conclude that these rights do not protect the autonomy interest of criminal defendants for two, often overlapping reasons. First, a defendant’s autonomy interest may not be protected because, in reality, other actors make decisions that formally belong to the defendant; these actors exert pressure or coercion over the defendant. I call this the “no choice” scenario. Second, a defendant’s autonomy interest may not be protected because the choice presented is not a meaningful one: there is one realistic, rational option under the circumstances. I call this the “no meaningful choice” scenario.
1. The Right to Self-Representation
Perhaps the most maligned of the autonomy rights, the right to self-representation, has received substantial scholarly criticism, typically focused on the practical risks of exercising the right. The Faretta Court found that a defendant’s lack of legal knowledge has no bearing on their right to proceed pro se.171 Moreover, the Court later made clear that “the trial judge is under no duty to provide personal instruction on courtroom procedure or to perform any legal ‘chores’ for the defendant that counsel would normally carry out.”172 This leaves detained pro se defendants with no practical ability to investigate their cases. Specifically, they cannot meet with witnesses, vet experts, or view physical evidence. While they may have access to a phone, calls are typically not unlimited. Each call begins with a prerecorded message announcing both the caller’s incarceration and the jail’s monitoring of the conversation—two facts likely to chill the speech of the recipient.173 Without access to the internet, a defendant cannot easily determine experts with whom to consult and retain. Neither the prosecutor nor the detention facility is likely to permit the defendant to personally view the physical evidence in the case, including any alleged weapons, blood-stained clothing, or video surveillance. Thus, while criminal defendants have the theoretical right of self-representation, detained defendants—particularly those in serious cases—have no way of actualizing this right.
It may be for these reasons that very few defendants charged with felonies represent themselves.174 This is not true for defendants charged with misdemeanors, who are much more likely to proceed without an attorney—at least in federal court.175 In explaining this discrepancy, Erica Hashimoto suggests that these pro se litigants may include criminal defendants who fall just outside the income requirements for appointed counsel, which are notoriously vague.176 If such is the case, then these defendants are “choosing” to self-represent after doing a cost-benefit analysis of the price of an attorney versus the likelihood of their subsequent incarceration. While such behavior may be a choice of sorts, it is not motivated by the desire for self-expression that the autonomy rights purportedly protect.
For indigent defendants, there are also considerable risks for not exercising the right of self-representation. While defendants with means have the right to choose an attorney to help navigate the criminal legal system,177 indigent defendants—who make up roughly eighty percent of criminal defendants178—do not.179 Instead, a public defender or “panel attorney” is typically appointed to represent them. The state of indigent defense is long lamented. Fifty years after Gideon v. Wainwright,180 Attorney General Eric Holder described the state of indigent defense as a “crisis”—one in which
too many defendants are left to languish in jail for weeks, or even months, before counsel is appointed. Too many children and adults enter the criminal justice system with nowhere to turn for guidance—and little understanding of their rights, the charges against them, or the potential sentences—and collateral consequences—that they face. Some are even encouraged to waive their right to counsel altogether.181
States have failed to provide adequate financial resources toward their system of indigent criminal defense, and, as a result, public defenders and panel attorneys remain overburdened with criminal cases.182 Studies in states across the country reveal that public defenders routinely manage astronomically high caseloads, which results in a reduction in the amount of time they can spend counseling each client—in some cases to as little as five minutes—and makes them significantly less likely to take cases to trial.183
Alexandra Natapoff has argued that even excellent defense counsel can do little to alleviate the systemic harms suffered by criminal defendants:
[A] lawyer in an individual case will often be powerless to address a wide variety of systemic injustices. A defendant may be the victim of overbroad laws, racial selectivity in policing, prosecutorial overcharging, judicial hostility to defendants, or harsh mandatory punishments and collateral consequences, none of which his lawyer can meaningfully do anything about.184
Recent scholarship has criticized the very nature of appointed counsel as antithetical to the autonomy interest of indigent defendants.185 Robert Toone has argued that the attorney-client relationship is not one of agency for indigent clients because their attorneys lack a financial incentive to follow their wishes: “[Indigent clients] have essentially no ability to prevent their lawyers from shirking or pursuing ends that conflict with the defendants’ own. They have no ability to compel their lawyers to investigate defenses, research case law, file motions, prepare for trial, or perform other critical defense-related tasks.”186 I. Glenn Cohen187 has observed that indigent clients not only lack the ability to choose their lawyer,188 they have no right to a high-quality defense or a particular expenditure of resources,189 and no right to “a meaningful attorney-client relationship.”190 Stephen Schulhofer has similarly noted that in addition to having no choice of counsel, indigent defendants lack “effective means to monitor counsel’s loyalty and performance.”191
In short, 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, with the overwhelming majority agreeing to accept counsel.192 It is in the context of this type of attorney-client relationship that the remaining “autonomy rights” typically arise.
Following the right of self-representation, the right to plead guilty or go to trial may be the most fundamental “autonomy right.” It theoretically promotes defendant autonomy both by allowing the defendant to determine the primary objective of the representation and by providing an expressive function, permitting the defendant to accept or deny responsibility for the charged crime. The Court has repeatedly stated that criminal defendants have a constitutional right to make this decision.193 The Model Rules of Professional Conduct have codified this right, specifying that a “lawyer shall abide by the client’s decision, after consultation with the lawyer, as to a plea to be entered.”194 But despite these purported protections, very few indigent defendants go to trial, revealing that this right provides no choice at all.
The Supreme Court has acknowledged that “[p]leas account for nearly 95% of all criminal convictions.”195 Scholars have lamented the demise of the jury trial196 and referred to the criminal legal system as a “post-trial world.”197 Jenny Roberts has argued that, given this decline, ineffective assistance of counsel doctrine should address the effectiveness of plea bargaining rather than trial practice because plea bargaining represents the heart of what lawyers actually do.198
Why have criminal defendants stopped “choosing” to go to trial? It is not because policing and prosecution have become more accurate; scores of innocent people plead guilty every day.199 One of the causes is the overburdening of the criminal legal system with an increasing number of arrests and charges. This contributes to high caseloads for defenders and prosecutors and crowded calendars for judges, incentivizing all three actors to pressure defendants to accept plea offers.
It is well known that judges and prosecutors often impose a “trial tax” on defendants who insist on going to trial.200 Prosecutors have nearly limitless discretion to determine charges, which enables them to drive the plea-bargaining process. Prosecutors regularly condition plea offers on the defendant’s willingness to waive legal arguments, “such as stating that any lesser charge plea will be ‘off the table’ if a defendant pushes a case to pretrial hearings.”201 Paul Butler illustrates how prosecutors use the trial tax to pressure defendants to take pleas with a typical speech that he used to give as a federal prosecutor:
Your client is staring at five felony charges. Here is what we are going to do. Dude will plead guilty to one count of assault with a deadly weapon and one count of making terroristic threats, and then I’ll drop the other charges. I’ll recommend the judge lock him up for a year. If your client doesn’t take the deal, we’re going to trial. If he is found guilty, and he will be, I am going to ask the judge to give him ten years.202
Public defenders have their own speech, delivered to their clients, about the parade of horribles that will result from a loss at trial.203 Public defender Jeffrey Stein notes that, in his jurisdiction, the trial tax “can be a matter of decades.”204 Even in strong cases, Stein sometimes advises a plea: “You tell your client that they would probably win at trial, but if they lose, they will go to prison. The plea promises some meaningful benefit: getting out of jail sooner, avoiding deportation, not losing a job, seeing a daughter before her next birthday.”205 A Baltimore resident explains another version of this conversation: “[The public defender] doesn’t know your name, and then you go to court, and he’s asking you what you are going to do. You’re saying, ‘I’m innocent. I’m fighting this to the end. I really didn’t do this.’ And he’s like, ‘This is the state’s offer.’”206
Courts also coerce pleas, sometimes by forcing unprepared, overworked defenders to begin a trial.207 When the defender objects, the court threatens a contempt charge.208 The defendant now has to “choose” between accepting the existing plea offer or taking his chances at trial with an unprepared lawyer—knowing that a loss will invoke the trial tax.
In addition, scholars have brought to light the importance of bail in determining case outcomes.209 People who cannot afford bail have incentives to take a plea that would get them out of pretrial detention, which is not meaningfully different from postconviction incarceration from an autonomy standpoint. Alexandra Natapoff explains this phenomenon among those charged with misdemeanors:
A person who is incarcerated pretrial and cannot afford bail can often plead guilty and accept a sentence of “time served”—the amount of time he or she has already been incarcerated—and thereby obtain immediate release. For many people, this common arrangement confirms their intuition that they were, in effect, being punished for being poor, since if they could have afforded bail, they never would have been locked up in the first place and might have escaped incarceration or even conviction altogether.210
Yet bail is not always the explanation. Guilty pleas are common even among individuals who are not detained before trial or who are charged with misdemeanors. Misdemeanor trials are even rarer than felony trials, constituting just one to two percent of cases.211 Public defenders who conduct less-than-five-minute interviews with their clients before advising them to plead guilty are so commonplace that this type of representation has a nickname: “meet ’em and plead ’em.”212 Natapoff notes that this lack of defense resources pressures some to plead guilty, as defendants perceive that their lawyers have high caseloads, insufficient investigative services, and little time for interviews.213 Other defendants succumb to plea offers “to end the grueling process of repeated court appearances.”214 According to a lawsuit by the Bronx Defenders, the average wait time for a misdemeanor bench trial in the Bronx was 642 days, while a misdemeanor jury trial carried a wait time of 827 days.215 While the wait time in the other New York City boroughs was shorter than in the Bronx, criminal defendants still had to wait an average of 414 days for a jury trial in Manhattan, 496 days for one in Brooklyn, and 558 days for one in Queens.216 During this time, defendants must make court appearances roughly every four to six weeks, requiring them to miss work or school, find transportation, and obtain childcare while subjecting them to the continued surveillance of the criminal legal system.217 Former public defenders Sarah Lustbader and Vaidya Gullapalli describe the impact of a “routine” court appearance:
In courtrooms, jails, and benefits offices around the country, low-income people are told to wait. For hours. They are not told to return in an hour, or that someone will call them when it’s their turn, or to take a seat, have a cup of water, and read a book. In criminal court, defendants and their families are often forced to wait for hours. They must do so silently, and are not allowed to read a newspaper, let alone check their phone. There is simply no regard for their time.218
A desire to end the punishment created by the criminal court process creates a highly effective pressure for indigent defendants to plead guilty. Perhaps more than any other right, the right to plead guilty provides no opportunity for autonomy or self-expression.
Although it has stated that the Constitution is silent on the defendant’s right to waive a jury,219 the Court has also observed that codification of this right fulfills an autonomy interest, as it involves the defendant’s selection of the audience to hear his expression of innocence. However, the right to waive a jury is the only autonomy right where the Court has found that the decision need not be left to the defendant alone.220 Jurisdictions may choose to require the consent of the prosecutor and/or the trial court to deem a jury waiver valid.221 Thus, the decision to waive a jury is the one autonomy right where the defendant’s autonomy interest is not paramount: the State’s interest in fairness provides a counterweight.222
Consent requirements aside, like the other autonomy rights, the right to waive a jury fails to provide an opportunity for the exercise of autonomy. For one thing, many criminal defendants are not entitled to jury trials in the first place. In many states, charges that carry a possible punishment of less than a year are adjudicated via bench trials. In some jurisdictions, it is common for prosecutors to reduce criminal charges on the eve of trial for the sole purpose of avoiding a trial by jury.223
For criminal defendants who retain some element of choice, there is reason to believe the choice is not meaningful. In 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. Although Americans have a cultural commitment to the superiority of the jury trial in obtaining accurate outcomes, at least one study suggests that verdicts determined by juries are not meaningfully different from those determined by judges. In an analysis of over 3,500 criminal cases, judges reported that they agreed with the jury’s determination eighty percent of the time.224 One of the reasons that judges and juries appear somewhat interchangeable is the historic and continued exclusion of the very jurors who might approach questions of culpability differently: African Americans.225 The white supremacist aim of the criminal legal system has long been reflected in its jury system. Thomas Frampton has argued that “[s]ince the end of Reconstruction, the criminal jury box has both reflected and reproduced racial hierarchies in the United States.”226 Frampton chronicles the efforts of southern whites to prevent Black jury service into the modern day, going as far as to pass legislation permitting nonunanimous jury verdicts to minimize the influence of Black jurors on the ultimate verdict.227 Beginning in 1935, prosecutors began to routinely rely on peremptory challenges to exclude African Americans from jury service.228 After reviewing data from over five thousand Louisiana jury trials from 2011 to 2017, Frampton concluded that prosecutors struck Black potential jurors “at an extraordinarily disproportionate rate, and they [did] so with greater frequency when prosecuting [B]lack defendants.”229 His analysis of over seven hundred nonunanimous jury verdicts confirms that Black jurors in aggregate vote differently than white jurors, and that nonunanimous verdicts tend to disadvantage Black defendants more than white defendants.230 It was not until April 2020 that the Supreme Court declared these nonunanimous jury verdicts unconstitutional in serious cases.231
Contemporary exclusion of Black potential jurors continues to be widespread.232 In Houston County, Alabama, prosecutors struck eighty percent of Black jurors in capital cases, while in Jefferson Parish, Louisiana, prosecutors removed eligible Black jurors “at more than three times the rate that they strike white prospective jurors.”233 In South Carolina, researchers determined that prosecutors struck eligible Black jurors at nearly three times the rate that they struck eligible white jurors.234 After an evaluation of seven hundred California cases from 2006 to 2018, a report by the Berkeley Death Penalty Clinic concluded that prosecutors continue to remove African American and Latinx people from juries “for reasons that are explicitly or implicitly related to racial stereotypes.”235 While the conventional wisdom is that modern prosecutors rely on peremptory strikes to exclude these jurors, Frampton cautions that prosecutorial challenges for cause “no less than peremptory strikes, are an important—and unrecognized—vehicle of racial exclusion in criminal adjudication.”236
Capital juries are hit the hardest. The requirement of death qualification, which requires potential jurors to state their ability to theoretically impose a death sentence, accelerates the exclusion of African Americans from capital juries.237 Studies show that African Americans are more likely to oppose the death penalty,238 and thus less likely to survive death qualification. In a recent study analyzing data from two recent surveys in Solano County—the county in California with the largest percentage of African American residents—Mona Lynch and Craig Haney determined that significant differences existed between whites and African Americans in both the fact and the strength of their support for capital punishment.239 Of the Solano potential jurors who would have been excluded during death qualification, between eighty and ninety percent of the African Americans opposed the death penalty, as compared to only approximately fifty percent of whites.240 As a consequence, the African Americans likely to survive death qualification “were a much smaller group than those originally in the venire and typically had views that made them outliers among their peers.”241
Lynch and Haney also concluded that Black and white prospective jurors assessed capital sentencing–phase evidence differently: African Americans were much more likely to consider classic mitigation evidence—such as an impoverished childhood, familial substance abuse, mental illness, and a positive institutional history—as a thumb on the scale for mercy, while whites often interpreted such evidence as supporting a death sentence.242 Lynch and Haney concluded that death qualification not only results in the “significant underrepresentation of African Americans,” but also “leaves behind a subgroup that does not represent the views of its community.”243
As such, there is no indication that preserving a criminal defendant’s right to waive a criminal jury creates a meaningful opportunity for a principled selection of a favorable audience to receive the defendant’s narrative.
Perhaps the most obviously expressive right, the right to testify, is literally the right of a criminal defendant to tell their story. The Court has described the right to testify as “[e]ven more fundamental to a personal defense than the right of self-representation” and has characterized the right as “an accused’s right to present his own version of events in his own words.”244 During the McCoy oral arguments, Justice Sotomayor spoke of this right as an encapsulation of the autonomy interest, with inherent, rather than instrumental, value: “People can walk themselves into jail. They can walk themselves, regrettably, into the gas chamber. But they have a right to tell their story.”245 But is the right to testify a meaningful right?
Alexandra Natapoff has observed that while one million defendants appear in the criminal legal system each year, “the typical defendant may say almost nothing to anyone but his or her own attorney.”246 A criminal defendant testifies in roughly half of the five percent of cases that go to trial.247 Natapoff attributes this silencing of indigent defendants to constitutional doctrine, criminal rules, and defense attorneys.248 The Constitution protects the right to remain silent,249 and evidentiary rules discourage speech from criminal defendants who have prior criminal histories. Testifying permits a prosecutor to impeach the defendant with evidence of prior convictions.250 Moreover, a testifying defendant is at risk of a perjury charge or sentencing enhancement.251 Wishing either to take advantage of the State’s burden of proof or to conceal a problematic narrative, defense counsel often pressure their clients not to testify.252 Even if a defendant does testify at trial, they do not present an unvarnished narrative. Rather, direction from their attorney and evidentiary rules work together to shape and limit what the jury hears. William Simon describes the effect that an attorney can have on a client’s testimony:
[L]awyers typically dominate their clients’ cases and orchestrate their clients’ behavior in court not to express their own senses of themselves, but to conform to the judge’s and jury’s stereotypes about how a respectable, law-abiding citizen looks and behaves. Of course, if this is the best way to get an acquittal, most defendants would prefer such a defense; but few experience it as an affirmation of their individuality.253
Robert Dinerstein has similarly emphasized that client narratives are not pure, but rather are mediated through the instrumental goals of the lawyer—what he terms “the prism of tactical calculation.”254 Charles R. Lawrence, III, laments that, while traditional storytelling “values rich contextual detail, the law excludes large parts of the story as irrelevant.”255 Not only can rules defining relevancy present a barrier, but also stories including hearsay and certain opinions must be curtailed.256
Even highly edited stories draw scrutiny. Jurors penalize many defendants who testify at trial. Evidence suggests that jurors who learn of a defendant’s prior criminal record are more likely to convict.257 This is especially true when the defendant has a prior conviction for the same type of crime for which they are being tried, suggesting that jurors disregard instructions forbidding them from considering the convictions as evidence of criminal propensity.258 Implicit racial bias also comes into play. M. Eve Hanan has posited that racially disparate sentences can partially be explained by judges’ skepticism of African-American defendants’ expressions of remorse, noting that “[i]mplicit racial bias likely plays a role in assessing the countenance, gestures, and sometimes words of defendants.”259 Similarly, a study by William J. Bowers, Benjamin D. Steiner, and Marla Sandys revealed that white jurors were less likely than Black jurors to believe Black defendants’ expressions of remorse in capital cases.260
Yet Jeffrey Bellin has found that, paradoxically, jurors also penalize defendants who do not testify.261 These jurors impose what Bellin calls a “silence penalty,” in that they are more likely to convict defendants who do not take the stand.262
Consequently, the decision to testify, rarely exercised and almost never amounting to a defendant’s personal expression, does not create an opportunity for defendant autonomy.
5. The Right to Forgo an Appeal
The Court has included the right to forgo an appeal in its list of rights that protect defendant autonomy, but it has not explicitly found that the Constitution protects waiver of this right. Most of the Court’s jurisprudence focuses on third-party standing in capital cases where the act of waiving an appeal is the equivalent of consenting to execution.263 In these cases, the Court has dismissed petitions by the defendant’s family and friends seeking to prevent the waiver264 as “uninvited meddlers.”265
Yet, the overwhelming majority of appeals waivers do not occur in the capital context, but rather on a daily basis, as a consequence of pleading guilty to felonies and misdemeanors.266 Criminal defendants entering a plea of guilty typically engage in a boilerplate colloquy with the trial judge, wherein they are asked to affirm their waiver of rights associated with forgoing a trial, including the right to an appeal. For example, in New York, the court asks defendants entering a plea a series of yes or no questions, including:
Have you spoken to your lawyer about waiving your right to appeal?
Are you willing to do so in return for the plea and sentence agreement?
Do you waive your right to appeal voluntarily, of your own free will and choice?267
Rarely does a colloquy become more probing than these questions, with a defendant’s simple assent all that is legally necessary to waive the appeal.268 Thus while a defendant’s waiver of appeals is subject to all the same pressures that impact guilty pleas, it is not the object of the negotiation. As such, these waivers permit even less of an exercise of defendant autonomy.
In the capital context, both courts and scholars have described appellate waivers as exercises in self-determination.269 But meaningful autonomy cannot exist in the capital criminal legal system, which operates as an even more coercive system within the criminal legal system. Capital punishment represents the height of a government’s power over its citizens. Since its inception, the American death penalty has supported white supremacy. Southern whites employed the death penalty as a form of social control, codifying dozens of crimes for which enslaved people could suffer death, but limiting capital crimes for whites to a bare few.270 Scholars have described the modern death penalty as the natural outgrowth of the lynching of African Americans following the Civil War.271 From 1930 to 1976, of the 455 men executed for rape, 405 of them, or 89.5%, were Black.272 No white man has ever been executed for the nonhomicide rape of a Black woman or child.273 Today, capital defendants remain disproportionately Black,274 and Black defendants accused of killing white victims are the most likely to be sentenced to death.275
When viewed through this lens—as a detained capital defendant—discussions of autonomy make little sense. Philosopher Joseph Raz conceived of a similar disconnect in his story of the Hounded Woman—a woman stranded on a desert island who is endlessly pursued by a hungry beast.276 Although the woman can travel wherever she wants on the island, she is not truly free because she has to devote all of her time and resources to elude the beast.277 Raz’s point is that individuals are rendered nonautonomous when they act within a system that radically constrains their options.278
To say that the options of individuals on death row are constrained is an understatement. For many convicted of capital crimes, the most realistic victory for which they can hope is sentencing relief that changes their death sentence to a sentence of life without parole.279 The realities of confinement contribute to “volunteerism”—the act of waiving one’s appeals to achieve a faster execution.280 Many describe death row confinement as “the hardest time that a prisoner can do.”281 Although the death row experience varies from state to state, most lock down residents in their cells for as many as twenty-three hours a day.282 Death row residents are rarely permitted to participate in educational or other prison programs.283 Residents may typically take one to three showers per week and exercise alone several times a week in a wire mesh dog run.284 Prison officials continually surveil residents, keeping cells illuminated around the clock, which often disrupts residents’ sleep.285 Visitation is limited to counsel and an approved list of family and friends, which typically excludes individuals with criminal records.286 Some institutions, like Texas’s death row, prohibit contact visits, requiring residents to be separated from all visitors by thick plexiglass.287 Members of death row experience significant feelings of isolation and loneliness and experience a loss of relationships with others.288 Many suffer from symptoms consistent with declining mental health, including feelings of depression, anxiety, and paranoia, and experience visual and auditory hallucinations.289
While the desire to volunteer for execution is frequently a desire that ebbs and flows,290 the decision to forgo an appeal is usually irrevocable,291 hobbling all future litigation challenging the capital defendant’s conviction and sentence. This is because of the nature of capital postconviction litigation and the doctrines of exhaustion of state remedies and procedural default. Most states have procedural bars prohibiting defendants from raising a claim they validly waived in the past.292 Consistent with principles of comity and federalism, federal courts typically cannot review a federal constitutional claim that was not first raised in state court or a previously denied federal constitutional claim where the denial rests on a state procedural ground.293 Thus, a constitutional claim, once validly waived, is waived forever.294 Even assuming some possibility for meaningful choice existed through the legal safeguarding of the right to forgo appeals, the right protects the capital defendant’s autonomy to decide only once and only for the purpose of waiving rights, as opposed to asserting them. Such a narrow window of autonomy is no autonomy at all.
6. The Right to Insist on Innocence at a Capital Trial
The right to insist on one’s innocence at one’s capital trial is the newest of the autonomy rights, resulting from the holding in McCoy and grounded in the Sixth Amendment right to make a defense.295 The Court’s holding expressly applied to capital cases,296 which, due to their bifurcated structure,297 typically require the same jury to determine the defendant’s guilt or innocence and, in the cases with a guilty verdict, whether the appropriate sentence is death or life imprisonment without parole.298
In addition to the racist legacy of the capital criminal legal system and its biased selection and punishment process, nearly everyone accused of capital murder is detained from the moment of their arrest until their trial.299 Judges typically do not grant bail in capital cases. Moreover, due to the complexity of capital trials and the congestion of court calendars, an individual can expect to spend years in jail between their arrest and trial.300 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. Instead, like Raz’s Hounded Woman, the individual charged with a capital crime can only react to threats that endanger their survival.301 The decision with which Robert McCoy was presented—deny factual guilt and lose the jury’s trust at sentencing or concede guilt and hope that the jury’s trust outweighs its ire—contained two scenarios, both of which could reasonably end in a death sentence. Indeed, Mr. McCoy’s lawyer pursued the latter option in the hopes of securing mercy but failed to do so.302
However, Mr. McCoy’s desired defense—an alibi theory—neither explained the State’s evidence against him nor was corroborated by any additional evidence.303 His attorney told the court that he believed Mr. McCoy was “suffering from some severe mental and emotional issues”304 and “has exhibited very bizarre behavior.”305 Two weeks before the trial, he reiterated that “Mr. McCoy lacks the mental capacity to even help [him] defend himself in this case” and that he “believe[d] that Mr. McCoy is insane.”306 But none of these details made it into the Supreme Court opinion because the Court did not deem them relevant. The trial judge had found Mr. McCoy to be competent,307 and this was sufficient for the Court to frame its opinion around the protection of his autonomy interest.
While popular fiction and media have encouraged the general public to believe that individuals charged with capital crimes resemble a real-life Hannibal Lecter,308 in reality, these people are typically the most vulnerable of criminal defendants.309 They are nearly always indigent: a common saying in the capital defense realm is, “[Those] without the capital get the punishment.”310 Mental illness is rampant.311 From 2000 to 2015, forty-three percent of individuals who were executed had a diagnosed mental illness.312
In addition, most capital defendants have complex trauma histories, which influence their behavior and can impair functionality.313 Clinical psychologist Kathy Wayland has observed that many of these clients have suffered traumatic events “usually within the context of profoundly destructive relationships, often at the hands of caregivers or others who should have provided safety, nurturance, and protection.”314 Exposure to traumatic stress, particularly during childhood, can delay neurodevelopment, impact brain structure, and affect behavior into adulthood.315 Three risk factors that increase the likelihood of developing Post-traumatic Stress Disorder (PTSD) include: prior psychiatric history, a history of childhood abuse, and a family history of psychiatric disorder.316 Most capital defendants have at least one of these risk factors; many have all three.317
To be clear, by acknowledging the existence of this increased vulnerability among those charged with capital crimes, I do not mean to suggest that there should exist no possible world where a vulnerable defendant could be empowered to make a fundamental decision concerning their defense, simply because such a decision might lead to a negative consequence. Disability scholars have long championed the dignity of risk as a philosophical concept that recognizes that personhood requires exposure to some degree of risk, and they have cautioned against overprotecting individuals with disabilities by eliminating their ability to make decisions that result in negative or risky consequences.318 Instead, I argue that here, the choice preserved by McCoy’s autonomy right does not comport with the concept of dignity of risk because it is not a meaningful one for capital defendants given the constraints of the criminal legal system discussed throughout this Article.
The Court’s intervention to protect an individual’s constrained choice within a racially subordinating system that confines individual action through pretrial detention and addresses potential mental health impairments with a simple binary competency inquiry does not create opportunity for meaningful autonomy. Instead, an assertion of an autonomy interest in this context only reproduces the existing social hierarchy, with the Court deeming the capital defendant’s effective choice to die as an exercise in proper self-governance.
III. Autonomy as Resistance
Having argued that the law does not protect the individual autonomy of criminal defendants, in this Part, I contend that their agency is expressed through acts of resistance to the criminal legal system. Accordingly, I propose a shift in the scholarly discourse of autonomy in the criminal legal system from that of autonomy rights to what I call Autonomy as Resistance. I begin by exploring the roots of Autonomy as Resistance in the study of the agency of people subjected to chattel slavery. I then explain how the observations of historians of this era can inform the discourse on autonomy in the criminal legal system. I propose a conceptual framework for understanding resistance by criminal defendants and argue that a failure to recognize these actions as the only true agency permitted by the criminal legal system fosters a discourse incompatible with structural reform.
A. A New Conceptual Framework
Expressions of defendant autonomy are, of course, possible in the criminal legal system; they are just not protected and facilitated by legal rights. In this way, mass incarceration resembles the American institution of chattel slavery. In both systems, the structural components of white supremacy and “massiveness” extinguish the potential for protective measures. In each system, autonomy is expressed as acts of resistance.
Recognizing autonomy in acts of resistance has long been a practice of historians studying American slavery.319 While there were laws under slavery that theoretically benefited enslaved people—for example, the right to marry with a master’s consent,320 or the prohibition on murdering an enslaved person321—no historian would seriously contend that these laws protected personal autonomy. Historian James Oakes explains, “The fact that such laws were common to slave societies throughout history suggests they were vague enough to encompass sadistic beatings and near-starvation,” adding, “[t]he law, of course is not a reliable guide to everyday practice.”322 Instead, slavery historians like Oakes saw autonomy in the everyday resistance exemplified by the actions of enslaved people.323 Despite the law’s role in instilling total subordination, Oakes notes that not all enslaved people were “absolutely dehumanized” in practice.324 Instead, many engaged in daily resistance by breaking tools, slowing or stopping work, pretending illness, taking food, fleeing for short periods of time, and manipulating overseers or masters or sometimes even physically striking them.325 Such resistance was not always intended as a challenge to the institution of slavery itself but often occurred when an enslaved person “got angry and refused to accept punishment.”326 Importantly, resistance was not always successful—and was, in fact, frequently unsuccessful—resulting in harsh punishment or death.327
In their classic text, Runaway Slaves: Rebels on the Plantation, historians John Hope Franklin and Loren Schweninger focused on flight as resistance.328 In examining seventy years of short- and long-term escape, Franklin and Schweninger revealed both how enslaved people sometimes relied on violence to aid in resistance and how their efforts were frequently met with a brutal response, as the owners of enslaved people sought to demonstrate their authority.329 Although immediate motivations for flight included conflict with overseers,330 desire to escape imminent brutality or punishment,331 hope for reunification with family or loved ones,332 or an unquenchable thirst for freedom,333 the act of flight was consistent with the enslaved person’s choice to refuse compliance with the rules of slavery. Franklin and Schweninger also noted that because most white owners viewed themselves as benevolent masters who acted “kindly” and “humanely” toward enslaved people, they frequently expressed mystification at acts of flight, describing them as having occurred “without any provocation.”334
Contemporary slavery historians paint a complex picture of the lives of enslaved people. Stephanie M. H. Camp writes that enslaved people were “both agents and subjects, persons and property, and people who resisted and who accommodated—sometimes in one and the same act.”335 Camp goes on to say that studies of resistance are neither naïve nor romantic but instead “offer a keen appreciation of the forms of abuse and exploitation against which the enslaved struggled and to which they often submitted.”336
Slavery historians also saw autonomy in collective resistance, which typically consisted of organized rebellions aimed at the institution itself. The enslaved artisan Gabriel organized a multicity conspiracy to seize Richmond and end slavery.337 Although the plan failed, it inspired one of the participants to organize a second uprising two years later, later deemed the Easter Plot.338 Hundreds of armed enslaved men marched on New Orleans in 1811.339 Denmark Vesey organized a rebellion of nine thousand men who planned to march on Charleston with the intention of killing not just white people but also Black people who failed to join in the rebellion.340 Of Nat Turner’s rebellion, Patrick Breen writes, “By targeting whites indiscriminately, Turner and the rebels hoped to dispel the aura of power associated with whiteness. Killing whites was not simply an act of vengeance but an act that would free the multitude of [B]lacks to join the rebellion.”341
Like enslaved people, criminal defendants display autonomy through acts of resistance to the criminal legal system. Sometimes calculated, sometimes reactive, these actions amount to expressions of frustration and protest within an all-encompassing oppressive system where meaningful choice and self-expression are not legally protected. As with resistance under slavery, resistance within the criminal legal system frequently inspires reaction and harsh punishment.
A few legal scholars have considered resistance as a frame for examining agency in the criminal legal system, but much of their work has been largely descriptive. An exception, Monica Bell, has proposed resistance—along with subordination, consumption, and transformation—as one of four modalities experienced by members of marginalized communities in relation to the criminal legal system.342 Bell contrasts consumption, or ways in which individuals engage with or “make use of” the criminal legal system, with resistance, or ways in which they struggle against it.343 For Bell, consumption is low in agency but comes with low risk of institutionalized stigma, whereas resistance is high in agency but typically comes with a price of moral dishonor.344 Bell defines resistance as intentional, explaining:
This understanding of resistance is akin to what James C. Scott . . . has called “weapons of the weak,” the ways subordinated people signal that they do not passively accept domination but instead struggle against it . . . . It is, perhaps, a mode of survival and a means of hanging on to one’s dignity and self-respect in a world that diminishes them.345
Bell focuses her analysis on marginalized communities and not criminal defendants per se. She emphasizes resistance in the context of police encounters although her examples recall those noted by slavery historians. Like Franklin and Schweninger, Monica Bell emphasizes the act of flight, characterizing Black men running from law enforcement officers as resistance to racialized policing.346
Trevor Gardner’s Cultural Resistance Theory also focuses on resistance that occurs before individuals enter the criminal legal system—that is, before they become criminal defendants.347 Gardner ties African-American street crime to “elements of political resistance, inherent in African American culture after years of struggle against structural racism.”348 Gardner writes that Cultural Resistance Theory is not meant to detract from traditional explanations for street crimes, such as poverty, racism, disparate law enforcement, and disparate sentencing; rather, it is meant to highlight that there is a “vital oppositional element” that is “[w]oven into the fabric of African American culture,” sparked by the brutality of slavery and continued under the oppressive regime of Jim Crow.349 When expressed as street crime, the desire is to “get over on these people, on their system without playing by their rules.”350
Chaz Arnett has also explored the resistance of communities, arguing that modern-day Baltimore residents can draw inspiration from African-American resistance under slavery, as enslaved people used creative methods to evade patrol and escape to freedom via the Underground Railroad.351 Although like Bell and Gardner, Arnett writes of moments outside of the process of arrest and prosecution, his observations are broadly applicable to the criminal legal system: “Black communities have forged channels of resistance when legal systems have not only failed them but have been complicit in the maintenance of racial hierarchy.”352
Two scholars have directly explored the pretrial resistance of criminal defendants. In Talking Back in Court, M. Eve Hanan examines moments when criminal defendants speak in unorthodox ways during their court appearances.353 Employing a definition first proposed by bell hooks, Hanan’s “talking back” means “speaking as an equal to an authority figure.”354 She contrasts talking back with hooks’s “silence,” which includes both refraining from speaking and speaking in such a way that is acquiescent or accommodating instead of challenging.355 Hanan concludes that court actors typically reward defendants for silence but punish them for talking back because doing so interferes with the “orderliness” of the courtroom.356
Sociologist Matthew Clair has discussed the resistance of indigent defendants, focusing on the very relationship delineated by the autonomy rights: the attorney-client relationship.357 Clair concludes that, far from being agentic relationships where attorneys carry out the decisions of their clients, for indigent defendants, “a relationship with a lawyer often results in coercion, silencing, and punishment.”358 In his qualitative study of defendants in Boston-area criminal courts, Clair finds that indigent defendants are much more likely to experience what he terms “a relationship of withdrawal” with their attorneys than are nonindigent defendants.359 Clair classifies one type of withdrawal as “withdrawal as resistance,” which manifests as explicit conflict with either attorney directives or courtroom norms or both and which may occur behind closed doors or in open court.360 Some of Clair’s examples of withdrawal as resistance include a defendant’s vocal protestation in open court of his attorney’s participation in a sidebar conversation in which he was not included,361 an exclamation on the record that “[t]his is my life we’re talking about here,”362 and a refusal to obey a judge’s order to take his hands out of his pockets.363 Others include a defendant who responded directly to a prosecutor’s argument that a video was admissible as evidence of resisting arrest by repeatedly stating that it was “impossible” for one person to resist an arrest attempt by four officers, despite the judge’s admonishment to remain silent.364 In a final example, a defendant refused to decide whether to go to trial or take a plea offer, choosing instead to simply leave the courthouse.365
Clair found that for some of these defendants, resistance constituted a display of frustration at the criminal legal system’s inability to address their needs and validate personal goals, “such as explaining the extenuating circumstances around their alleged wrongdoing or contesting corrupt police practices.”366 For others, resistance grew out of a belief that “court-appointed defense attorneys, as a group, could not be trusted to protect their interests or seek justice.”367 Like Hanan, Clair observed that defendants were nearly always punished for engaging in resistance—including by their attorneys, who typically responded by moving to withdraw their representation.368 Also like Hanan, Clair observed that the pressure to maintain the decorum of the courtroom often inspired punitive measures. Judges, at best, refused to hear defendants who attempted to speak in court without the aid of their attorneys and, at worst, took retributive action.369 In one example, a defendant complained to a judge that his lawyer was refusing to file appropriate motions. Rather than encouraging the lawyer to speak with his client and work out the disagreement, the court permitted the lawyer to withdraw and ordered the defendant to hire counsel—in effect punishing the defendant for not deferring to his lawyer and instead “making a scene.”370
Building on the work of these scholars, I propose a new conceptual frame to identify and interpret authentically agentic actions of criminal defendants: Autonomy as Resistance. Autonomy as Resistance captures acts of insubordination by criminal defendants to authorities within the criminal legal system. Sometimes these authorities are explicitly oppositional to the defendant: prosecutors, court officers, judges; other times, they are the very actors purported to act as the defendants’ guides and confidants: public defenders and appointed counsel. Autonomy as Resistance applies when criminal defendants make choices beyond those sanctioned by the criminal legal system—especially, the hollow binaries offered by the autonomy rights—and when they engage in unauthorized self-expression. To qualify as autonomous, acts of resistance need not be intentional political statements of opposition to the criminal legal system. They also include any refusal to submit to perceived injustice, unfairness, discomfort, or futility. These acts need not have positive outcomes; instead, as Hanan and Clair observed, punishment is the more likely result. Finally, as demonstrated above, Autonomy as Resistance draws inspiration from the African-American tradition of resistance to the subordinating institution of slavery.
Like Hanan and Clair, I chose to focus not on communities generally, but on indigent criminal defendants, emphasizing the period between arrest and case disposition where counsel is assigned. I do so because this is the context in which the six autonomy rights apply but fail to protect the agency of criminal defendants. Unlike Bell and Hanan, who contrast acts of resistance with acts of acquiescence that individuals may take—for Bell “consumption” and for Hanan “silence”—I contrast Autonomy as Resistance with the common belief that individual rights safeguard opportunities for autonomy. Unlike this “autonomy rights discourse,” which emphasizes the role of law as a protective mechanism for the autonomy of criminal defendants, the Autonomy as Resistance repositions law in the current legal system as antithetical to agentic aims. In this way, my theory of Autonomy as Resistance differs from those of scholars like Jenny Carroll, Eric Miller, and Alice Ristroph, who have argued rights claims create and enshrine opportunities for defendant resistance.371
To aid in the examination of the resistance of criminal defendants, I offer the following taxonomy, which is both overlapping and non-exhaustive. Autonomy as Resistance can be grouped into five primary categories: verbal resistance, physical resistance, boundary pushing, opting out, and collective resistance. “Verbal resistance” occurs when defendants attempt to express their point of view orally in unsanctioned ways. It includes Hanan’s “talking back,” as well as what court actors commonly label “outbursts,” where defendants attempt to communicate their point of view in a way that threatens the decorum of the courtroom. Examples include defendants who received increased sentences after calling judges “racist”372 or telling them to “go fuck yourself.”373 But verbal resistance can also include less confrontational communication, such as questioning the impartiality of system actors or the fairness of criminal procedure. For example, it includes the defendant who “questioned the fairness” of the judge’s decision to suspend his license for six months, prompting the judge to increase the suspension to nine months.374 Verbal resistance also describes the actions of another defendant, who made “facial gestures” and “sounds” to indicate that he “strongly disagreed with the court’s rulings.”375 After this defendant made statements to the same effect, the judge ordered him to be shackled to a wheelchair.376 Verbal resistance includes the actions of a Texas defendant who repeatedly asked the judge to recuse himself, resulting in an order to activate the defendant’s stun belt.377 It also includes a defendant’s request to return to jail during his trial because he “had enough of this,” and his exclamation that the jury did not constitute a jury of his peers “because he is [B]lack.”378
Other verbal resistance is aimed at appointed attorneys, whom defendants believe to be unprepared or oppositional. In a paradigmatic example, one defendant took issue with his attorney’s statement that the defense was ready for trial, saying he had only met the attorney for five minutes and that the attorney declined to show him the police reports associated with his case.379 The defendant argued that any system that would permit such an attorney to begin a trial was “ridiculous” and “racist,” but the judge ordered that the trial should proceed.380
Finally, verbal resistance includes the self-expression that Clair observed criminal defendants display in Boston, including both the man who exclaimed, “This is my life we’re talking about here,”381 and the man who opposed the prosecutor’s attempt to introduce an arrest video because it was “impossible” to resist four police officers.382 It also includes the actions of a defendant whose efforts to register complaints about his lawyers and jail conditions resulted in the judge taping his mouth shut during sentencing.383 Undaunted, the defendant continued to make efforts to talk through the tape.384
“Physical resistance” occurs when criminal defendants use their bodies as instruments to express opposition to system actors or the criminal process. Physical resistance includes both active physical resistance, such as attacks or challenges to fight, and passive physical resistance, such as becoming limp or refusing to move. Physical resistance is comparatively rare and harshly punished. Examples of active resistance include a defendant who pushed over a courtroom table after the judge denied his request for more time to prepare for trial;385 a defendant who attacked his attorney (against whom he had made repeated complaints) on his way to the witness stand to testify;386 and defendants who threw backpacks,387 computer and phone equipment,388 and podiums389 at court personnel. Examples of passive resistance include a defendant who smoked a marijuana cigarette during his arraignment for marijuana possession;390 a defendant who remained seated and refused to accompany deputies back into detention;391 a defendant who went limp while being escorted by deputies, following an arrest for escape;392 and a defendant who refused to rise as the judge left the bench.393 Nearly all who engage in active physical resistance—and some who engage in passive physical resistance—acquire additional criminal charges, often after having been physically restrained and punished by court officers.
“Boundary pushing” occurs when defendants challenge the norms of the courtroom. Boundary pushing appears to be more successful than other forms of resistance in the sense that defendants are not always formally punished for engaging in this behavior. One example of boundary pushing involves defendants who wear clothing that court actors find to be provocative. Examples of this range from a teenage defendant who wore a t-shirt that said “killer” to his sentencing hearing,394 to one who intentionally wore his jail uniform at trial,395 to a third who sought to wear a Black Lives Matter shirt,396 to a fourth who appeared for a remote court appearance wearing no shirt at all.397
Boundary pushing also includes a direct analogue to resistance under slavery: delay. While criminal defendants lack tools to break, they have employed creative methods to delay court proceedings. One example is a defendant who slowly dressed himself for trial and removed his clothing during court recesses to prevent himself from being summoned back into the courtroom.398 Another is a defendant who delayed his trial by drinking excessive amounts of water in order to request frequent bathroom breaks.399 Boundary pushing also includes the defendant who explained that the judge should not worry about the defendant’s arguments causing delays in the case because “[y]ou are getting compensated for the delay by taxpayers.”400
My prior career as a public defender in the Bronx401 allowed me to observe additional instances of boundary pushing. One noteworthy example involved defendants who, though at liberty awaiting sentence, had pled guilty to a crime that required incarceration. These men and women had to come to court on the day of their sentencing to be “stepped in,” meaning they would be taken into custody inside the courtroom and then transported to jail—typically, to Rikers Island. Although judges instructed them to arrive in court at 9:30 a.m., these individuals nearly always arrived late in the afternoon, just minutes before the courtroom closed, in an effort to extend their freedom to the last possible second. Provided they arrived before closing, this marked a rare instance where a defendant could engage in resistance without punishment (which may have accounted for the act’s ubiquity). The consequences of arriving a minute too late were devastating: the sentencing judge issued an arrest warrant, and the defendant was brought before the judge the following day for a resentencing hearing, wherein the judge could, and typically did, increase the period of incarceration.
“Opting out” occurs when defendants refuse to participate in the criminal legal system, often by refusing to make decisions, speak, comply with court orders, or attend court. Examples include a defendant who refused to speak with his attorney, recognize his attorney as his counsel, or enter a plea of guilty or not guilty in response to the reading of his indictment.402 It includes one of Clair’s defendants, who chose to leave the courthouse rather than being forced to choose the hollow binary of going to trial or taking a plea offer.403 Other examples of opting out include defendants who refused to submit handwriting or voice exemplars, despite orders to do so;404 those who refused to attend court;405 and, most recently, those who refused to take a test for COVID-19.406 In an analogue to resistance under slavery, opting out is most vividly displayed by attempts to escape the criminal legal system entirely by fleeing the courthouse.407
“Collective resistance” appears to be rare among criminal defendants. There are at least two possible reasons for this. First, the current criminal legal system is focused on individuals: personal responsibility, individual rights, and individualized sentencing are all basic tenets that obscure the roles of systems and communities. Because defendants’ cases have independent outcomes, they are incentivized to minimize the harm done to their own person. These incentives are reinforced by the myth perpetuated by the autonomy rights that criminal defendants can navigate the system successfully and fairly by making good choices. Second, given the potential costs of engaging in resistance—which can include public humiliation, additional criminal charges, deprivation of liberty, or infliction of violence—collective resistance may seem not worth the risks.
Yet some collective resistance does occur, particularly at the hands of criminal defendants detained during the pendency of their cases. In August of 2020, individuals incarcerated in multiple jails in Santa Clara, California, began a coordinated hunger strike with the dual aims of protesting detention that resulted in a COVID-19 outbreak and participating in the nationwide protests on policing inspired by the killing of George Floyd.408 When the Metropolitan Detention Center, a jail housing those accused of federal crimes in Brooklyn, lacked heat in the dead of winter, several residents began a hunger strike, while others shot and distributed video on contraband cell phones.409 In both Santa Clara and Brooklyn, many of these individuals had not been convicted of anything. They were awaiting trial and thus imbued with the presumption of innocence. At least in theory, they could still leave the criminal legal system without a criminal conviction or punishment. That these people were willing to engage in collective resistance and accept its inherent risk of reprisal demonstrates both the value they place on the conditions motivating their protest and the comparative lack of value the presumption of innocence may seem to have while detained. More scholarly attention to such actions is warranted.
Whether criminal defendants at liberty engage in collective resistance with any regularity is less clear. Scholars have proposed collective exercise of the right to trial as an act of resistance.410 Jenny Roberts has argued that the misdemeanor criminal legal system would become overburdened, and likely collapse, if defendants were to collectively refuse guilty pleas and demand a trial in misdemeanor cases.411 Roberts aims her proposal at public defenders, urging them to present clients with “an invitation (in appropriate cases) to participate in a collaborative effort to change the system by forcing it to bear some of the real costs of mass misdemeanor processing.”412 But, of course, there is no reason such a plan could not be organized (and perhaps, more successfully) by the defendants themselves—regardless of their attorneys’ participation or support. Michelle Alexander considered this possibility by recounting a conversation she once had with Susan Burton, a woman who, after several periods of incarceration for drug offenses, went on to establish the reentry organization, A New Way of Life.413 Burton contemplated the idea of organizing a project to encourage people enmeshed in the criminal legal system to refuse plea bargains on a large scale, despite knowing firsthand the harm it could bring to them on an individual basis:
As you know, another brutal system of racial and social control once prevailed in this country, and it never would have ended if some people weren’t willing to risk their lives. It would be nice if reasoned argument would do, but as we’ve seen that’s just not the case. So maybe, just maybe, if we truly want to end this system, some of us will have to risk our lives.414
There is some irony in the fact that exercise of this particular “autonomy right” might, in fact, constitute a genuine act of autonomy if intended as collective resistance. But, of course, it is not the legal codification of meaningful choice and self-expression that is at work here. Instead, it is a collective decision to take action to undermine the criminal legal system. It is not the right that enables autonomy; it is the resistance.
B. Shifting the Autonomy Discourse
I propose that scholars shift the discourse on autonomy from one of rights to one of resistance because the latter frame more accurately captures the agency of criminal defendants. But I also contend that this shift is necessary because the current autonomy rights discourse is harmful. The myth of autonomy rights both legitimizes a flawed system and perpetuates the notion that such a system is redeemable if only we can find the right combination of procedural mechanisms to actualize these rights. To begin with, the focus on individual rights obscures systemic defects. Scholars and advocates who assume that autonomy in the criminal legal system is possible emphasize procedural adjustments and reforms to better protect individual defendants. But, within this discourse, the aim (and limit) of reform is necessarily harm reduction. For example, the same public defender offices that advertise client-centered representation have developed policy arms that propose legislation aimed at reforming bail statutes, civil forfeiture, and jury selection—but rarely endorse abolition-inspired measures such as defunding policing and “invest/divest,” where communities give resources to educational and health initiatives in lieu of the carceral system.415 While this legislation no doubt improves the lives of individual clients, it fails to address the underlying structural deficits of the criminal legal system: white supremacy and massiveness. By suggesting the redeemability of the criminal legal system, the autonomy rights discourse is another arrow in the quiver for those who deem abolition both radical and unnecessary.
In addition, the corresponding “autonomy rights” discourse reinforces existing race and class hierarchies. The Court’s focus on individual rights is a colorblind one, with no indication that one’s experience within the criminal legal system—from selection to punishment—is identity driven. Scholars engaging with autonomy also tend to give race and class cursory treatment.416 While client-centered defenders and clinicians are more cognizant of white supremacy, by stylizing their philosophy of representation as one in which criminal defendants “choose” objectives, they present an idealized portrait where white supremacy stops just outside their office doors.417
By taking for granted the law’s ability to protect defendant autonomy in the criminal legal system, courts, scholars, and advocates allow narratives that harm criminal defendants to flourish. Prosecutors continue to reduce complex questions of culpability to simple moral tales about “choices,”418 while judges may accept assurances that defendants are pleading guilty because they are guilty.419 Then, as Anna Roberts has pointed out,420 these dubious convictions end up serving as the basic unit of data concerning the criminal legal system, are employed in support of misleading statistics, and ultimately create the false portrait that the system accurately identifies and punishes the culpable. This permits judges and prosecutors to accept without question their own roles as integral to public safety and the rule of law.
The autonomy rights myth also likely affects public defenders—particularly progressive, client-centered defenders—because it upholds the illusion that their clients have meaningful choices for them to empower. This creates two problems. First, the defender passes along the myth to the client, suggesting falsely that the system presents opportunities for narrative expression and meaningful choice that simply do not exist. The emphasis on opportunities to “have your day in court” or “tell your story” can supplant conversations about the structural limitations and white supremacist realities of the criminal legal system, favoring a harm reduction approach. Second, when a client responds with resistance—not just to the criminal legal system, but to the attorney’s representation—the defender may respond by punishing the client by displaying frustration with the client, spending less time on the client’s case, or formally withdrawing their representation.421
This Article makes clear that, as with slavery, the structural constraints of the criminal legal system run too deep for individual autonomy to be expressed as anything other than resistance to an unjust system. As such, the scholarly discourse must change to reflect reality; it must focus on the discourse of resistance. The discourse of resistance is similar to the discourse of autonomy rights in that both focus on agency, but unlike rights-based autonomy, resistance involves agency that occurs not because of the law but in reaction to the law. A shift from autonomy rights to resistance has two critically important effects. First, it accurately situates the criminal legal system as a modern complement to race-based slavery. Second, it illuminates the need for radical structural change instead of mere procedural tinkering.
Just as with slavery, autonomy within the criminal legal system exists despite, and not because of, the law. Adopting a resistance frame enabled slavery historians to find evidence of individual and collective agency in an obviously oppressive system. For the criminal legal system, a resistance frame would do the opposite: it would illuminate the criminal legal system as an all-encompassing system of racial subordination and oppression. Such thinking is in line with that of Monica Bell, who argues that a resistance frame emphasizes the oppressive structure of the criminal legal system and can inspire fundamental transformation:
[A]n understanding of . . . everyday resistance is critical for illuminating pathways toward more innovative systemic criminal justice transformation, for finding touchpoints that community members find the most dehumanizing or the least productive, and for building a legal structure that is more responsive to community concerns.422
Resistance is the better frame for examining defendant agency within the criminal legal system both because it explicitly and accurately connects the criminal legal system to the institution of slavery and because it exposes the failure of the law to protect autonomy. In doing so, the resistance frame illuminates the oppressive nature of the criminal legal system and the need for radical structural change and, ultimately, abolition. Put another way, when autonomy may only be expressed by resistance to a system, the system is broken: the system must be abolished and its subjects emancipated.
Conclusion
When the Framers conceived of our criminal legal system, they sought to ensure protection of the self-determination and self-expression of criminal defendants. Instead, the criminal legal system has morphed into a bloated tool of racial subordination, where criminal defendants lack the ability to make meaningful choices. Rather than grapple with context and structural defects, the Court has employed lofty rhetoric in support of six “autonomy rights” that seem to apply more to theoretical criminal defendants than to the flesh-and-blood individuals who find themselves ensnared by the criminal legal system. The Court’s decisions have driven the scholarly discourse on autonomy. Criminal legal scholars and practitioners have debated how best to protect defendant autonomy and when other values should eclipse its importance but have always taken for granted the ability of the law to protect self-determination and self-expression within the criminal legal system. These scholars are wrong: the law has failed to protect the autonomy of criminal defendants. Instead, the agency of criminal defendants—just as with enslaved people before them—occurs despite, and not because of, the law in the form of resistance. A resistance frame illuminates the subordinating nature of the criminal legal system and, with it, the need for radical structural change.