Trying Not to Be Like Sisyphus: Can Defense Counsel Overcome Pervasive Status Quo Bias in the Criminal Justice System?

Abstract

This article draws on cognitive and political science literature on the quo The paper argues that prosecutors and even judges are in the grip of this bias and that one primary but under-appreciated function of defense counsel is to counteract that bias. Properly-resourced and trained defense counsel can therefore contribute to fostering the appropriate balance between stability and change in the criminal justice system. This article was written for a symposium on the Sixth Amendment right to counsel and makes concrete suggestions for how defense counsel can counteract the cognitive appeal of the status quo.