Speechless: The Silencing of Criminal Defendants

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, 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 it 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, express anger, remorse, or their acceptance or rejection of the 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 what collective decisions are fair or unfair, and who should be punished. This Article describes the silencing phenomenon in practice and doctrine, and identifies the many unrecognized harms that silence causes to individual defendants, to the effectiveness of the criminal justice system, and to democratic values that underlie the process. It proposes new ways of valuing defendant speech, and challenges conventional understandings of the attorney-client conversation, the listening role of the bench, and the public discourse about criminal justice.