Erica Hashimoto


Some constitutional rights of criminal defendants lend themselves to systematic violations at the trial level. In particular, state officials may gravitate toward such violations when (1) the nature of the relevant right renders violations difficult to detect at the trial level, and (2) constitutional compliance imposes especially high costs. For rights with those two characteristics, a trial-level remedy may not adequately protect the right, and a robust appellate remedy may be necessary to provide an adequate incentive for constitutional compliance. But because the Court has not considered the importance of deterring constitutional violations outside of the exclusionary rule context, it has significantly limited the availability of appellate remedies. As a result, states have an incentive to violate these high-cost constitutional rights in situations where the violation is unlikely to be discovered. The Strickland right to effective assistance of counsel provides a paradigmatic, and widespread, example of the breakdown in remedies where constitutional violations are both hidden at the trial level and cost effective for state actors.

This Article argues that as to this category of constitutional violations, the Court should reformulate remedies to foster meaningful compliance with critical constitutional protections afforded to criminal defendants. At the very least, the Court should put in place strengthened remedies if the defendant can establish that a state both has abridged a constitutional right and has a custom of doing so. Only by embracing this new remedial approach can the Court close the gap between its articulation of theoretical individual rights and the real-world incentives of states to violate certain constitutional rights.