Group 15: Criminal Legal System Structures
Angelo Petrigh, Boston University
The American criminal legal system is structured to protect those accused of crimes, yet everyday attorneys and judges in different courts and jurisdictions replicate the system of mass incarceration. Criminal court actors perpetuate a system of staggering pretrial incarceration, a near complete erasure of the factual adjudicatory process, and a meting out of punishment with little process.
There are differing schools of thought as to what animates criminal court actors. Prevailing models suggest that efficiency, social control, or morality explain why court actors abrogate rights to impose substantial punishment. This paper proposes an overlooked mechanism: the individual fear of court actors, as mediated by structure, plays a determinative role in court actor behavior and criminal court operation.
Judges, prosecutors, and defense attorneys face drastic consequences for leniency, which causes an over-corrective chilling effect and reinforces that the safe decision is to continue the system of mass incarceration. Since these actors form a working group that establishes reasonable bounds, they each reinforce the other’s fears. Over time these fears condition them to believe their job is the replication of the system of mass incarceration. This fits into a larger feedback loop with society, with court actors mistaking these fears for democratic accountability and society mistaking court actor fear for higher level legal expertise. This affective economy explains how court actor decision-making replicates mass incarceration, clarifies why only certain communities face punitiveness, and points towards a system closer to its purported aims.
Revisiting Unitary Review
Bradley Hall, Michigan State
In virtually every American jurisdiction, criminal direct appeals are limited to the trial record, whereas postconviction review is for developing new facts. But this bifurcation causes delay and inefficiency, while failing to remedy constitutional violations such as ineffective trial counsel.
In 1974, Paul H. Robinson proposed a fix called “unitary review”—a mechanism for new claims and a hearing directly after sentencing, thus expanding the record for appeal. The concept resurfaced in 2007, when Eve Brensike Primus proposed “relocating” ineffective trial counsel claims to direct appeal, with new counsel and ample time. Yet the concept remains elusive.
Reexamining history may help overcome the inertia. Bifurcated review emerged not from common law or intentional design but by historical accident. While direct appeals were devised to ensure fair trials, postconviction review responded to the rapid federalization of new constitutional protections. Since then, retroactive new rights have waned while most protections are filtered through the right to effective counsel—a trial right that logically should, and conceivably could, be established on direct appeal.
Indeed, that is exactly what is happening in a few isolated and ignored jurisdictions. A small handful of states, two federal circuits, and military appellate courts have evolved some combination of expanded new trial motion, practices, remand procedures for new facts on direct appeal, or new counsel on direct appeal. And Michigan, alone among states, employs a fully unitary review process and provides new counsel for all appeals, proving the viability of a more efficient and protective criminal review process.