Legal education, information technology and law practice add up to an expensive thinking machine. So, the right to counsel means access to a million-dollar brain—the product of natural and artificial intelligences. Now that lawyers have been upgraded by technology, the right to counsel needs upgrading as well.
Computer-cultivated lawyers are a generation pledged to palm-sized devices with million volume libraries, while AI moves from predicting recidivism to judging guilt. See Ken Strutin, “Automatic Justice: Shaping the Legal Mind of Tomorrow,” LLRX, June 4, 2017.
The state’s attorney enters a courtroom armed with a law degree, an arsenal of digital assets, and countless hours reading, arguing and practicing law, their competence scaled to technology forbidden to the unrepresented prisoner.
No amount of poorly illumined book learning will overtake computer intelligence. Without counsel, every prisoner is confined to information solitary.
Lawyering has graduated from jurisprudence to computer science. So, technologically-enhanced legal practice demands an Information Age right to representation. Otherwise, prisoners are condemned to lose legal battles in Gothic style, without lawyers or legal knowledge.
In the Twelfth Century, an anemic English appeals system, “cannon law and royal absolutism” barred access to counsel for the accused. See Marvin Becker and George Heidelbaugh, “Right to Counsel in Criminal Cases an Inquiry into the History and Practice in England and America,” 28 Notre Dame L. Rev. 351, 355-356, 361 (1953). Yet, a right to counsel existed.
Looking back, Sir William Blackstone “believed that the denial of benefit of counsel was ‘not at all of a piece with the rest of the humane treatment of prisoners by the English law.’” George E. Heidelbaugh and Marvin Becker, “Blackstone’s Use of Medieval Law in Criminal Cases Involving Benefit of Counsel,” 7 U. Miami L. Rev. 184, 185-186 (1953).
Likely, he would have recognized a post-conviction right to counsel born behind bars. See Ken Strutin, “Litigating from the Prison of the Mind: A Cognitive Right to Post-Conviction Counsel,” 14 Cardozo Pub. L. Pol’y & Ethics J. 343 (2016).
After all, Oxford’s first Vinerian Professor of Common Law showed that the consilium prohibition in the Laws of Henry I (c. 1120 A.D.), which barred lawyers from representing the accused at trial, had been misinterpreted. It really applied to conferring with others outside court.
This error in thinking would haunt litigants for centuries, most significantly in Betts v. Brady, 316 U.S. 455, 466 (1942), where it slowed the acceptance of Gideon by 20 years.
Indeed, it suppressed a right to counsel that had washed up on America’s shores in the 17th century. See John Felipe Acevedo, “The Ideological Origins of the Right to Counsel,” 68 S.C. L. Rev. 87 (2016) (discussing “Body of Liberties of Massachusetts Bay”).
Lawyering was invented for voices drowned out by the din of prejudice, poverty and prison. Still, the incarcerated are trapped in a pre-Gideon world, where appointment of counsel remains unobligated.
An infallible justice, like an unsinkable ship, has no need for lifeboats. But after more than 2,000 sinkings, change is imperative. See National Registry of Exonerations.
Indeed, jury trials can hardly be life preservers when only a small percentage of cases are litigated and 95 percent plead out. See Missouri v. Frye, 132 S. Ct. 1399, 1407 (2012).
The cruel momentum of misidentifications, false confessions, faulty forensics, official misconduct and the sinister energy of racism keeps people perpetually locked up.
Even still, the latest report from the National Registry affirms the indispensable work by innocence networks, conviction integrity units and individual lawyers—the vanguard of an undeclared right to post-conviction counsel. See Exonerations in 2017 (NRE 2018), at 15.
From Field Code to Source Code
The human mind is no longer a standalone application. It is integrated into instant messaging, datamining, and Internet transactions. Professional competence is vested in knowledge management tools that operate at AI levels.
Evolution has turned towards the digital, disadvantaging unrepresented millions in poverty and in prison.
A legal researcher relies on redundant results from different databases to confirm relevance, a practice that is impossible without technology. See Susan Nevelow Mart, “Results May Vary in Legal Research Databases,” ABA J., March 2018. Evermore, legal reasoning yields to inscrutable automation.
In People v. Harris, 885 N.W.2d 832, 838-39 (Mich. 2016), the court sought the plain meaning of “information,” a statutory term, in the Corpus of Contemporary American English (COCA), a computerized analytic tool with 500 million plus words.
A prisoner can be their own lawyer, but not their own computer. The incarcerated rely on law books arranged by Nineteenth Century salesmen. Chained to antiquity, they are denied the technology and advice to sway modern decision-makers. See Emily Garcia Uhrig, “The Sacrifice of Unarmed Prisoners to Gladiators: The Post-AEDPA Access-to-the-Courts Demand for a Constitutional Right to Counsel in Federal Habeas Corpus,” 14 U. Pa. J. Const. L. 1219 (2011-2012).
If all pro se pleadings were pressed into a master key, they would not open a single door because the lock has been digitized. Without counsel, the pro se have no say.
Legal reasoning has departed to a digitally different plane of thinking. And big data can’t squeeze through prison bars. So, when justice is finally devoured by algorithms, the punished will be the only humanity in a machine-readable prison.
A prisoner could live a thousand years and not move one whit closer to justice. Forced to stumble in ignorance and exhaustion, pro se litigants linger on the banks of despair, their rejected handwritten petitions filling an already crowded living space.
After 10,000 unanswered letters, the last lawyer a prisoner will ever see is in the mirror, the victim of unfinished justice and unkept promises, for no matter how people end up in prison, it is want of counsel that keeps them there.
The unnatural language of computers removes human safeguards—precedent, legal reasoning, education and experience. Without counsel’s watchful eye, algorithms will derogate from justice, leaving self-created lawyers to serve computer-generated sentences.
Ken Strutin is director of legal information services at the New York State Defenders Association.