The Ideological Origins of the Right to Counsel

Forthcoming  68 South Carolina Law Review__ (2016).

I am pleased to announce that my paper will be published in Volume 1 of the South Carolina Law Review. The paper's abstract is below:

The defense counsel is a paramount actor in modern criminal trials, but this was not always the case. Indeed the allowance of counsel to felony defendants can be traced to only a few hundred years ago, a relatively modern innovation in the area of legal history. This essay examines the intellectual origins of the right to counsel, which it situates in the era of the English Revolution. Drawing on pamphlet literature, cases, and statutes from the Seventeenth-Century in both England and North America it argues that the right originated from a fear of unfairness brought on by a mistrust of the law among puritan reformers who worried that without the guiding hand of counsel defendants would be wrongly convicted. The right to assistance of counsel is found in nascent form in the Body of Liberties of Massachusetts Bay, which is the first Anglo-American legal code to remove the prohibition on defense counsel. Although initially opposed by the colony’s leaders the code reflected their desire to reform the Common Law and their attempt to blend religious law with English law. The intellectual origin of the right to counsel thus also represents the transatlantic circulation of legal ideas.

A previous version of this paper was presented at the Law, Culture, and Society Workshop, at The University of Chicago on 7 June 2010.

Restoring Community Dignity Following Police Misconduct

Forthcoming, 59 Howard Law Journal  (2016).

Several highly publicized encounters between police officers and African Americans have exposed patterns of police-initiated violence and, often, deeply racist law enforcement. With each new encounter, citizens and politicians are left wondering how to heal the rifts between minority groups on the one hand, and local communities and law enforcement on the other hand. The two most common solutions involve awarding large sums to the victims or their families via the tort system, or having the Department of Justice launch one of its rare investigations into local police practices. Neither of these solutions recognizes that racially motivated police brutality fundamentally harms the dignity of targeted individuals and groups. I draw on existing American and international practices of community involvement and dignity restoration to offer new remedies that recognize the growing legal salience of “dignity” and which can better redress harms caused by police misconduct.

Dissertation

Acevedo, John F. 2013. Harsh Mercy: Criminal Law in Seventeenth-CenturyMassachusetts Bay. PhD dissertation, The University of Chicago. Ann Arbor: ProQuest/UMI. (Publication No. 1492330755).


Abstract: 

As the first sustained study of crime in Massachusetts Bay from the founding of the colony in 1630 until the Salem Witchcraft trials this dissertation demonstrate the changes in colonial criminal law admiration and dispel some of the misconceptions about criminal law in the Massachusetts Bay colony. The colonists of Massachusetts Bay began to alter the Common Law of England to their own ends as soon as they arrived in North America. The colonial Puritan leaders sought to make a godly society on earth, in order to achieve this they attempted to implement Biblical law in their society. However, this proved not to be entirely possible because of the harshness that would emerge from the proscribed punishments being inflicted and the general lack of criminal procedure in the Bible. In creating their new legal code they sought to establish certainty in punishment, but instead the Body of Liberties lead to an increase in defendant’s rights and greater leniency in punishment, but not to certainty. The replacement of this code combined with disturbances in the colony resulting from the English Civil War and Restoration led to an increase in the harshness of punishments under the Laws and Liberties. Finally, the Revolution of 1688 was not an unproblematic event in the colony, contributing to the rigid application of the Common Law during the Salem witchcraft trials.