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Imagine that a new majority of justices of the Supreme Court of the United States decides to reverse Brady v. Maryland on the ground that this landmark opinion is not “deeply rooted” in our nation’s history. Brady, after all, dates from 1963 — a vintage year for the Supreme Court but certainly not chronologically deep in our nation’s past. What would this mean to us, as defenders, representing individuals facing government power in state and federal courts?
As deeply rooted as we think Brady might be, we ought to pause and consider. We should pause and consider what the reversal of Brady — or other “defense-friendly” precedent — would mean given that the Supreme Court appears to be poised to overturn Roe v. Wade and Planned Parenthood v. Casey — two well-established opinions that have been described as “super precedent” by many. No matter what side of the abortion debate you find yourself, as defenders we must appreciate the fact that reversal of Roe, as well-established precedent, would profoundly impact our capacity to defend our clients from arbitrary or excessive government power in three significant ways.
First, reversal of Roe represents an assault on precedent that undermines our capacity to defend our clients based on rights recognized by the Supreme Court, especially procedural justice opinions of the Warren Court era. Think Gideon, Miranda, and a dozen other civil rights and civil liberties opinions that we carry with us into battle before trial, during trial, and (often) after trial on appeal. Furthermore, jettisoning respect for precedent does not bode well for defenders over the short and medium term, at the very least, given that our judiciary is populated largely by former prosecutors, government lawyers, and corporate lawyers. We rely on precedent to defend our clients from arbitrary or excessive government power and, once the doctrine of stare decisis is gutted, we face the very real possibility that our prosecution-leaning federal courts will allow state legislatures to reshape our most fundamental understandings of Due Process, Equal Protection, and the Bill of Rights just when we have started to repair the destruction wrought by the War on Drugs and other misplaced criminal “justice” policies.
Second, reversal of Roe represents an assault on the legitimacy of the Supreme Court. Reversal of Roe would deeply undermine the legitimacy of the Court by revealing that the concept of precedent, and the promises of nominees during confirmation hearings, mean less to the Court than the number of votes a particular “block” can corral at a given moment in the Court’s history. One president (in this case, Donald J. Trump) happens to have three Supreme Court nominees and, consequently, “super-precedent” in the form of Roe drops away and “rights” are reshaped — a scenario in tension with the very concept of rights and of the rule of law itself. As defenders, we traffic in rights and law, and the erosion of these concepts makes our work in the trenches much harder. The erosion of institutions, like the Supreme Court, will cost all of us dearly in the long run if we hope to limit legislative and executive overreach.
Third, and most importantly in my view, reversal of Roe represents an assault on limitations of criminal laws, worsening the modern trend toward overcriminalization that has filled our prisons at a rate much greater than any other comparable nation. Reversal of Roe would greatly expand the reach of criminal laws into the most personal and private aspects of human life and would do so by blowing past decades of carefully constructed doctrine protecting individuals from state and federal interference in personal decision-making.{1} 1 Some observers also predict an increase in prosecution generally as the entire criminal code could potentially be applied to acts which harm a fetus if the fetus meets a state’s new standard for personhood. As many have observed, this expansion would lay the foundation for the criminalization of other conduct that simple majorities might condemn based on their own personal, religious, and moral views. Marriage equality? Interracial marriage? Contraceptive rights? There is no limit once the Court empowers politically motivated state legislatures to regulate personal choice.
Put simply, reversing Roe would open the floodgates to a greater degree of overcriminalization than we have ever experienced — just at the time in which we are beginning to repair the human and communal damage of decades of overcriminalization. If states can criminalize a practice that has been protected by “super precedent” and believed to be moral by a majority of Americans, then there are no limits on the power to criminalize by a legislative majority in a particular state at a particular moment. This sobering truth, as many of you know, is the central theme of NACDL’s landmark 2021 report, Abortion in America: How Legislative Overreach Is Turning Reproductive Rights Into Criminal Wrongs, authored by NACDL Past President Nina J. Ginsberg and Board Members Lindsay A. Lewis and C. Melissa “Missy” Owen.{2} 2 In the words of Past President Ginsberg, “Make no mistake, the United States is on the precipice of a shocking and dramatic expansion of its criminal legal system.”
Speaking of majorities and states, the criminalization of reproductive health dovetails with another complex issue that does not fall within NACDL’s Mission but which we must all consider as defenders: Should we — as criminal defense attorneys — care about the erosion of voting rights as a criminal justice issue? I pose this second thorny question because, as individuals and as an organization, we have been confronted over the last years with the fragility of our institutions to a degree unprecedented since the Civil War. Americans of all political stripes appear to agree that our institutions have failed us in our collective efforts to face recent economic, social, political, and environmental challenges. Does this matter — should this matter — to those of us who represent clients in criminal courtrooms across the country?
In my personal view, the answer is “absolutely.” Although NACDL — given its Mission — does not have policies regarding electoral reform and practices, I believe that we, as defenders, should care about voting rights considering the profound, complex, intertwining system of disadvantages that we and our clients face in the courtroom. This uneven, unbalanced, and unfair system leans hard in favor of the prosecution as reflected in its defining feature, the trial penalty, and its most obvious characteristic, unjustifiable and inhumane rates of incarceration. This prosecution-leaning system has many causes and effects but, ultimately, is rooted in the polices of elected prosecutors and in the laws enacted by legislatures. Defenders have always played upon an uneven field and, therefore, reform efforts are almost as important to the welfare of our clients as is direct advocacy — perhaps less important for the clients we have today and more important for the clients we will have in the near and distant future. And, of course, without voting reform, few politicians have any interest in serving those impacted by the criminal legal system. In this respect, as sixth grade civics class clarified for many of us, legislators hold the keys to change even though community leaders may be the drivers of criminal justice reform.
In other words, all reform requires legislative or executive action and, with politicians focused on eligible voters, our elected leaders often ignore the rights of those impacted by the criminal legal system. In this respect, we cannot forget that the War on Drugs devastated communities and effectively disenfranchised nearly five million Americans, including a disproportionate number of people of color.{3} 3 Restrictive voting laws most often affect voters of color due in great part to disenfranchisement related to felony convictions. As many as 11 states permanently strip voting rights for some individuals with felony convictions. Another 15 states have complex processes to restore voting rights. Only three states do not automatically revoke voting rights from people with criminal convictions. Ironically — tragically really — not only are felons prohibited from voting but, in fact, people housed in prisons are counted as residents in the poorly populated communities where they are housed.{4} 4 Christopher Uggen & Jeff Manza, Democratic Contraction? Political Consequences of Felon Disenfranchisement in the United States, 67 Am. Soc. Rev. 777, 778 (2002) (describing impact of felony disenfranchisement on presidential and Senate election outcomes).
NACDL’s Mission focuses on the criminal legal system and, of course, the voting issues touched upon above exceed the parameters of our Mission. Nevertheless, as defenders and members of a reform-oriented association, we must appreciate the implications on our work of the assault on precedent, the assault on the legitimacy of our courts, and the assault on the limits of criminal laws. No matter our personal political or religious views, we must appreciate the fact that this three-part assault — coupled with the erosion of voting rights — presages dark days for those we represent, especially the most vulnerable, including women of color and women living in poverty. As defenders and as members of NACDL, we need to pause and consider how we respond to this challenge because business as usual will not work if the playing field tilts any further against the people and against the rights we defend. We have been down this road before — overcriminalization leading to mass incarceration — and we know that we must do everything we can now before individuals, families, and communities suffer irreparably.
About the Author
Martín Sabelli represents individuals in state and federal courts in a wide range of civil and criminal matters from the simplest of cases and gang-related prosecutions to the most complex white collar investigations and death penalty prosecutions. He is a speaker at seminars and trial training programs for NACDL, the National Criminal Defense College, and other defense programs around the world.
Martín A. Sabelli (NACDL Life Member)
Law Offices of Martín A. Sabelli
San Francisco, California
415-298-8435
msabelli@sabellilaw.com
http://sabellilaw.com
