Right to Counsel in the U.S.

1. Legal Representation and Criminal Processing in Chinese Courts: A Pilot Study in Fujian (2009-2011) (Supported by MacArthur Foundation) Phil He College of Criminal Justice, Northeastern University

2. Right to Counsel in the U.S. • 6th Amendment, US Constitution (“in all criminal prosecutions, the accused shall…have the assistance of counsel for his defense.” • What happens when one could not afford an attorney? • Facts about Indigent defense in the U.S. (BJS, 2000 Special Report) • 66% felony defendants (in federal ct.) and 82% felony defendants (in state ct.) were represented by public defenders/assigned counsel • 90% of federal defendants and 75% state defendants were found guilty, regardless of the type of attorney used • Among those found guilty, higher % of the defendants with publicly financed counsel were sentenced to incarceration (FC-88% vs. 77%; SC-71% vs.54%) • 95% of all criminal defendants are tried in state courts

3. Evolution of the Right to Counsel Debates in the U.S. (1853-2002) • Webb v. Baird, (1853), Indiana Supreme Court (principle of civilized society) • Powell v. Alabama (1932), US Supreme Court (all state capital cases) • Johnson v. Zerbst(1938), U.S. Supreme Court (reaffirm the right in all federal courts) • Betts v. Brady (1942), US Supreme Court (denied extending it to state felony proceedings) • Gideon v. Wainwright (1963), US Supreme Court (overruled Betts) • In re Gault (1967), US Supreme Court (children) • Argersinger v. Hamlin (1972), US Supreme Court (misdemeanor state proceedings with a potential loss of liberty) • Strickland v. Washington (1984), US Supreme Court (effective counsel) • Alabama v. Shelton (2002), US Supreme Court (counsel must be provided for the accused in order to impose a suspended prison sentence)

4. The American Reality Re Indigent Defense • “Gideon’s Broken Promise: America’s Continuing Quest for Equal Justice” (ABA 2004 Special Report) • Lack of adequate funding (inadequate compensation; lack of resources/state fiscal crises/resource disparity between prosecution and indigent defense) • Inadequate legal representation (competency; caseload; contact; ethics) • Structural defects (uneven service; delays in process; lack of data) • Recommendations: adequate funding; raising assigned counsel fees; increase state oversight

5. Chinese Court Structure • Supreme People's Court (1 national) • Higher People's Court (29 provincial) • Intermediate People's Court (337 prefectural and larger cities) • District People's Court (2,902 rural counties; municipal districts; autonomous counties)

6. The Chinese Reality • About 724,112criminal cases tried in 2007 (plus about 200,000 reeducation through labor cases rendered by the police per yr) • China had about 3,000 practicing lawyers in 1980 and about 143,967in 2007 (1.3 billion pop.); US has 1.2 million lawyer (307 million pop.) • Legal representation not mandated in criminal cases (except for capital offenses and a few other circumstances) • Estimated lawyer density ratio in China:1 per 8,867 citizens (US ratio: 1 per 281) • Over 450 law schools now (2 in 1978); Chinese Bar passage rate: 7%-14% in recent years • No law firm in 206 counties nationwide

7. What do we know about legal representation in China today? • Availability of lawyers • Prevalence of legal representation (mixed estimates) • 2002 National estimate: 15%-30%; C city/2004: 44% (Zuo, 2007); 20% (Lu & Miethe, 2002, based on 237 theft cases from one district ct) • How are clients represented in Chinese courts? • Lu & Miethe (2002): lack of effectiveness; do not challenge “facts” • Liang’s (2008) court observation study (54 cases from Chengdu and Beijing, including 22 criminal cases): professionalism and effectiveness varies greatly

8. Key Questions for Fujian Pilot Study • What is the extent of legal representation for criminal defendants in District level courts? • How are criminal defendants represented? • What is the dynamic of the courtroom working group (judges, prosecutors and defense attorneys)? • How are the outcomes of criminal cases really decided in these courts? • What are the prevailing perceptions of legal practitioners on court reform?

9. Why Fujian? • Research partner at XMU, School of Law • Alumni base and good rapport with courts • 35 million population; diverse economy; market economy experimentation; distance from Beijing • Feasibility, efficiency, training, research control, depth of inquiry • IRB Protocol • Possible experimentation and policy impact

11. Fujian Pilot Key Hypotheses • Level of legal representation in criminal cases is low in Chinese District People’s Court • There is a modest increase in legal representation in the past three decades • There could be an accelerated increase in legal representation after the latest revision of the Chinese Lawyers’ Law (6/1/08)

12. Fujian Pilot Key Hypotheses (cont. -a) • There is a difference in the use of legal representation by case types (e.g., violent crime defendants are more likely to seek legal representation) • There are variations in both the availability and quality of legal representation across regions of different economic development • There are variations in both caseload and distribution of case categories across regions of different economic development

13. Fujian Pilot Key Hypotheses (cont.-b) • Chinese criminal lawyers have little substantive impact on sentencing outcome based on the defense they provide in court • Chinese criminal lawyers focus not on acquittal but on presenting mitigating circumstances to impact the sentencing decision • Extra-legal factors (such as sensitivity of the case, a defendant’s residency/employment statuses, an attorney’s professional reputation in the courtroom and political connections) play significant role in determining case process and outcome

14. Fujian Pilot Key Hypotheses (cont.-c) • Criminal defense attorneys are marginalized in Chinese court by their professional peers such as judges and prosecutors • There are increased specializations in Chinese District People’s court in the past three decades • There are decreased (communist) party influence on case outcomes in the lowest court (i.e., less requests submitted by a presiding judge to the judicial committee)

15. Fujian Pilot Key Hypotheses (cont.-d) • There is an increase in qualification and professionalism among Chinese legal practitioners in the past three decades • Job satisfaction (with regard to prestige, stress, turnover, financial reward and upward political mobility) is low for judges, prosecutors and defense attorneys who work in the lowest level Chinese court

16. Data Collection • Questionnaire Surveys • XMU Juris Master (current candidates & alumni) • Provincial Lawyer’s Association • Case level data collection • Summary judgment • Court Observations • Pilot study (court access) • Data Collection Instruments & Online data entry (controlled access)

17. Fujian Pilot Tentative Findings • Prevalence of legal representation: • based on initial survey results: 43% (violent crime cases)-55%(property crime cases) • based on pilot court observations (193 criminal trials; 54 Fujian courts; July-August, 2009): 85% • Effectiveness of legal representation • Survey results (See examples in handout) • Court observation (ongoing) • Summary judgment files (ongoing)

18. What’s next after the pilot? • Follow-up study? • Court experiments and evaluation?? • Some personal thoughts • Tipping point? • Resources for court research and reform? • Hong Kong/Taiwan/Japan/Korea?