Speechless: The Silencing of Criminal Defendants.

Source: (-0001) New York University Law Review. 80:1449-1504.

Over one million defendants pass through the criminal justice system every year,
yet we almost never hear from them. From the first Miranda warnings, through
trial or guilty plea, and finally at sentencing, most defendants remain silent. They
are spoken for by their lawyers or not at all. The criminal system treats this pervasive
silencing as protective, a victory for defendants. This Article argues that this
silencing is also a massive democratic and human failure. Our democracy prizes
individual speech as the main antidote to governmental tyranny, yet it silences the
millions of poor, socially disadvantaged individuals who directly face the coercive
power of the state. Speech also has important cognitive and dignitary functions: It
is through speech that defendants engage with the law, understand it, and express
anger, remorse, and their acceptance or rejection of the criminal justice process.
Since defendants speak so rarely, however, these speech functions too often go
unfulfilled. Finally, silencing excludes defendants from the social narratives that
shape the criminal justice system itself, in which society ultimately decides which
collective decisions are fair and who should be punished. This Article describes the
silencing phenomenon in practice and in doctrine, and identifies the many unrecognized
harms that silence causes to individual defendants, to the effectiveness of the
criminal justice system, and to the democratic values that underlie the process. It
concludes that defendant silencing should be understood and addressed in the context
of broader inquiries into the (non)adversarial and (un)democratic features of
our criminal justice system (author’s abstract).