Are Our Criminal Courts Too Much Like “McJustice”?

A friend once drew an analogy between many crowded criminal courts and McDonalds. We are just McJustice. Steven Zeidman (CUNY School of Law) has posted Eradicating Assembly-Line Justice: An Opportunity Lost by the Revised American Bar Association Criminal Justice Standards (Hofstra Law Review, Vol. 46, No. 293, 2017) on SSRN.

Here is the abstract:

Every day in criminal courts across the country, thousands of people enter guilty pleas within hours of their arrest at their initial appearance or arraignment before a judge. The practice is so rampant that it has spawned its own phrase — “meet ‘em, greet ‘em, and plead ‘em” — that derisively, but accurately, captures the routine. At this critical moment in time, none of the institutional players — judge, prosecutor or defense counsel — has engaged in any kind of factual or legal investigation of the charges, or knows much of anything about the defendant, the arresting officer, or any potential victim or witnesses. And yet, the majority of misdemeanor cases will end then and there. While all institutional players bear responsibility for the blight of meet, greet, and plead, this Article focuses on whether defense counsel is providing constitutionally required effective assistance pursuant to the Sixth Amendment and adhering to the standards of professional behavior outlined in the American Bar Association’s (“ABA”) Standards for Criminal Justice.

The ABA Standards for Criminal Justice are becoming more directly relevant when courts consider whether counsel provided constitutionally required effective assistance. After many years of minimizing the impact of the standards when analyzing whether an attorney’s performance met constitutional muster, the Supreme Court now seems more inclined to take the Standards into active consideration and almost imbue them with constitutional heft. As courts look to the ABA Standards to define the parameters of effective assistance in the plea bargaining context, it is essential that the Standards take every occasion to finally, clearly, directly and unequivocally condemn meet, greet, and plead.

This Article examines the latest incarnation of the ABA Standards for the Defense Function adopted in 2015 and its impact on meet, greet, and plead. The revisions presented an opportunity, if not a necessity, to make clear that defense counsel should not recommend to a client that he accept a guilty plea at arraignment, and that counsel should advise a client more affirmatively to reject any guilty plea offered at arraignment. In the final analysis, the new standards send mixed messages and are a lost opportunity to finally rid the criminal justice system of the very symbol of assembly-line justice.

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