Notable Recent Publications features the latest empirical research
and data related to indigent defense. Should you have suggestions,
ideas for work that should be included, or trouble accessing any of the
articles featured, please write to albdavies@smu.edu.
"Mismanagement and unethical behavior are addressed in this article through the presentation of three fact-based cases written by the author to be used in undergraduate or graduate college classes in sociology, social work or human services that cover such topics as management, probation, homeless shelters and generalist social work agencies. The actions of human service staffers and management are supposed to be professionally constrained by the NASW Code of Ethics. How should a social worker respond when he/she sees a conflict that involves ethical dilemmas with colleagues, community members and clients? There are rarely easy consequence-free decisions. Each case in this paper offers sociologically framed questions that should guide students to explore their own values as they develop a “sociological eye” and train for case work and community advocacy, the duel identity of contemporary social work"
Paul Heaton The Expansive Reach of Pretrial Detention. North Carolina Law Review, Vol. 98, pp.369-378.
"Today we know much more about the effects of pretrial detention than we did even five years ago. Multiple empirical studies have emerged that shed new light on the far-reaching impacts of bail decisions made at the earliest stages of the criminal adjudication process. The takeaway from this new generation of studies is that pretrial detention has substantial downstream effects on both the operation of the criminal justice system and on defendants themselves, causally increasing the likelihood of a conviction, the severity of the sentence, and, in some jurisdictions, defendants’ likelihood of future contact with the criminal justice system. Detention also reduces future employment and access to social safety nets. This growing evidence of pretrial detention’s high costs should give impetus to reform efforts that increase due process protections to ensure detention is limited to only those situations where it is truly necessary and identify alternatives to detention that can better promote court appearance and public safety."
Peter Leasure, John Burrow, Hunter Boehme and Gary Zhang. The Effectiveness of the ABA's Efforts to Increase Defendant Notice of Collateral Consequences: A Survey of South Carolina Defense Attorneys. Justice System Journal, vol. 40/4, pp.302-318.
"Recognizing the negative impacts of collateral consequences of conviction, the American Bar Association published advisory standards and other online compendium resources aimed at increasing defendant notice of such consequences before pleading guilty. However, no study has explored defense attorney awareness of these efforts or their perceived effectiveness. The current study fills this gap with a survey of South Carolina criminal defense lawyers. Results indicate that the majority of respondents felt that non-binding standards were ineffective, and most were unaware of an ABA standard aimed at increasing notice of collateral consequences. Further, a significant number of respondents were unaware of electronic sources that provided comprehensive lists of collateral consequences. These results indicate that non-binding standards may not be effective at changing attorney practices with regard to providing notice of collateral consequences. Jurisdictions may need to consider implementing binding standards and additional training meant to educate defense attorneys about the availability of electronic legal source material that provides comprehensive lists of collateral consequences."
Brian Ostrom and Jordan Bowman. Examining the Effectiveness of Indigent Defense Team Services: A Multisite Evaluation of Holistic Defense in Practice. Justice System Journal. Online first.
"The past 50 years has witnessed the ongoing development by public defenders of what it means to “provide the effective assistance of counsel” through strong legal advocacy. More recently, many practitioners contend that in addition to the defense attorney, professional support services, such as social workers, paralegals, and criminal investigators, are critical to effective assistance of counsel in indigent defense cases. The umbrella of what we call the holistic defense model covers the most developed concepts and practices of an integrated defense team. The National Center for State Courts (NCSC) evaluated the implementation of holistic defense practices at three public defender offices: the Department of Public Advocacy in Bowling Green, Kentucky; the Hennepin County Public Defender in Minneapolis, Minnesota; and the Rhode Island Public Defender in Providence County, Rhode Island. In all offices, on-site interviews and surveys were conducted with attorneys, judges, social workers, investigators, and others with knowledge of practices at the site. Results from the evaluation clarify (1) how indigent defense providers have implemented the principles of holistic defense in practice, (2) how holistic defense practices vary among providers, and (3) what factors have facilitated or impeded implementation of holistic defense practices. A team-based approach to representation was most prevalent at Hennepin County and Rhode Island, where social workers, investigators, and attorneys worked closely together and perceived themselves to be part of a “defense team,” while local constraints reduced the level of teamwork at Bowling Green. The findings make clear that each site approaches the practice of holistic defense differently, largely driven by local priorities and funding realities."
Kyle C. Scherr, Allison D. Redlich and Saul M. Kassin. Cumulative Disadvantage: A Psychological Framework for Understanding How Innocence Can Lead to Confession, Wrongful Conviction, and Beyond. Perspectives on Psychological Science, Online first.
"False confessions are a contributing factor in almost 30% of DNA exonerations in the United States. Similar problems have been documented all over the world. We present a novel framework to highlight the processes through which innocent people, once misidentified as suspects, experience cumulative disadvantages that culminate in pernicious consequences. The cumulative-disadvantage framework details how the innocent suspect’s naivete and the interrogator’s presumption of guilt trigger a process that can lead to false confession, the aftereffects of which spread to corrupt evidence gathering, bias forensic analysis, and virtually ensure wrongful convictions at trial or through pressured false guilty pleas. The framework integrates nascent research underscoring the enduring effects of the accumulated disadvantages postconviction and even after exoneration. We synthesize findings from psychological science, corroborating naturalistic evidence, and relevant legal precedents to explain how an innocent suspect’s disadvantages can accumulate through the actions of law enforcement, forensic examiners, prosecutors, defense attorneys, judges, juries, and appeals courts. We conclude with prescribed research directions that can lead to empirically driven reforms to address the gestalt of the multistage process."
Alisa Smith & Sean Maddan. Misdemeanor Courts, Due Process, and Case Outcomes. Criminal Justice Policy Review, Online first.
"Very little research on courts and sentencing outcomes focuses on misdemeanor courts despite the fact that most crime processed through the criminal justice system is misdemeanor in nature. In fact, the overwhelming empiricism in this area is on felony court outcomes at either the federal or state levels. This research utilized a mixed methodology approach, a combination of observation, survey, and secondary data, to explore misdemeanor court outcomes across the State of Florida. In particular, this research focused on the extent of due process afforded misdemeanor defendants and how this impacted case outcomes. Findings indicate an overall lack of due process and awareness of due process rights across the vast majority of cases. This study also explored sentencing outcomes via traditional metrics associated with contemporary sentencing research. Findings suggest that misdemeanor courts processing operate much differently than felony courts. The implications for future research and policy are discussed."
Stene N. Zane, Simon I. Singer and Brandon C. Welsh The Right to a Good Defense: Investigating the Influence of Attorney Type Across Urban Counties for Juveniles in Criminal Court. Criminal Justice Policy Review, Online first.
"Juvenile defendants in criminal court represent an especially vulnerable group for whom quality legal representation is critical. While some juvenile defendants are able to obtain private counsel, indigent defendants are provided an attorney by the government. One long-standing concern is that these court-appointed attorneys are less effective. Using data on juveniles in criminal court across 37 large, urban counties, the present study examines conviction and sentencing outcomes by comparing private counsel, public defenders, and assigned counsel. Results indicate that defendants with public defenders were less likely to be convicted, less likely to be incarcerated in prison, and served shorter prison sentences compared to defendants with assigned counsel. Contrary to hypotheses, however, the effect of attorney type was not conditioned by court urbanism. The findings suggest that public defenders provide effective legal representation for juveniles in criminal court. Research is needed to determine whether this holds across different contexts (e.g., rural)."
[From p. 87] "Our main emphasis here is on how unconscious racism and biases often play a role in our everyday defense decisions."
"The right to a fair trial is fundamental to American jurisprudence. The Fifth Amendment of the Bill of Rights guarantees “due process,” while the Sixth provides the accused with the right to be “confronted with the witnesses against him.” But “time works changes, brings into existence new conditions and purposes.” So it is with software. From the smartphones we access multiple times a day to more exotic tools—the software “genies” of Amazon Echo and Google Home—software is increasingly embedded in day-to-day life. It does glorious things, such as flying planes and creating CAT scans, but it also has problems: software errors. Software has also found its way into trials. Software’s errors have meant that defendants are often denied their fundamental rights.
"In this paper, we focus on “evidentiary software”—computer software used for producing evidence—that is routinely introduced in modern courtrooms. Whether from breathalyzers, computer forensic analysis, data taps, or even FitBits, computer code increasingly provides crucial trial evidence. Yet despite the central role software plays in convictions, computer code is often unavailable to examination by the defense. This may be for proprietary reasons—the vendor wishes to protect its confidential software—or it may result from a decision by the government to withhold the code for security reasons.
"Because computer software is far from infallible—software programs can create incorrect information, erase details, vary data depending on when and how they are accessed—or fail in a myriad of other ways—the only way that the accused can properly and fully defend himself is to have an ability to access the software that produced the evidence. Yet often the defendants are denied such critical access. In this paper, we do an in-depth examination of the problem. Then, providing a variety of examples of software failure and discussing the limitations of technologists’ ability to prove software programs correct, we suggest potential processes for disclosing software that enable fair trials while nonetheless prevent wide release of the code."
Articles
J. Forbes Farmer, Analyzing and Confronting Managerial Impediments to the Pursuit of Social Justice by Human Service Agencies, Journal of Sociology and Social Work, Vol 7/2."Mismanagement and unethical behavior are addressed in this article through the presentation of three fact-based cases written by the author to be used in undergraduate or graduate college classes in sociology, social work or human services that cover such topics as management, probation, homeless shelters and generalist social work agencies. The actions of human service staffers and management are supposed to be professionally constrained by the NASW Code of Ethics. How should a social worker respond when he/she sees a conflict that involves ethical dilemmas with colleagues, community members and clients? There are rarely easy consequence-free decisions. Each case in this paper offers sociologically framed questions that should guide students to explore their own values as they develop a “sociological eye” and train for case work and community advocacy, the duel identity of contemporary social work"
Paul Heaton The Expansive Reach of Pretrial Detention. North Carolina Law Review, Vol. 98, pp.369-378.
"Today we know much more about the effects of pretrial detention than we did even five years ago. Multiple empirical studies have emerged that shed new light on the far-reaching impacts of bail decisions made at the earliest stages of the criminal adjudication process. The takeaway from this new generation of studies is that pretrial detention has substantial downstream effects on both the operation of the criminal justice system and on defendants themselves, causally increasing the likelihood of a conviction, the severity of the sentence, and, in some jurisdictions, defendants’ likelihood of future contact with the criminal justice system. Detention also reduces future employment and access to social safety nets. This growing evidence of pretrial detention’s high costs should give impetus to reform efforts that increase due process protections to ensure detention is limited to only those situations where it is truly necessary and identify alternatives to detention that can better promote court appearance and public safety."
Peter Leasure, John Burrow, Hunter Boehme and Gary Zhang. The Effectiveness of the ABA's Efforts to Increase Defendant Notice of Collateral Consequences: A Survey of South Carolina Defense Attorneys. Justice System Journal, vol. 40/4, pp.302-318.
"Recognizing the negative impacts of collateral consequences of conviction, the American Bar Association published advisory standards and other online compendium resources aimed at increasing defendant notice of such consequences before pleading guilty. However, no study has explored defense attorney awareness of these efforts or their perceived effectiveness. The current study fills this gap with a survey of South Carolina criminal defense lawyers. Results indicate that the majority of respondents felt that non-binding standards were ineffective, and most were unaware of an ABA standard aimed at increasing notice of collateral consequences. Further, a significant number of respondents were unaware of electronic sources that provided comprehensive lists of collateral consequences. These results indicate that non-binding standards may not be effective at changing attorney practices with regard to providing notice of collateral consequences. Jurisdictions may need to consider implementing binding standards and additional training meant to educate defense attorneys about the availability of electronic legal source material that provides comprehensive lists of collateral consequences."
Brian Ostrom and Jordan Bowman. Examining the Effectiveness of Indigent Defense Team Services: A Multisite Evaluation of Holistic Defense in Practice. Justice System Journal. Online first.
"The past 50 years has witnessed the ongoing development by public defenders of what it means to “provide the effective assistance of counsel” through strong legal advocacy. More recently, many practitioners contend that in addition to the defense attorney, professional support services, such as social workers, paralegals, and criminal investigators, are critical to effective assistance of counsel in indigent defense cases. The umbrella of what we call the holistic defense model covers the most developed concepts and practices of an integrated defense team. The National Center for State Courts (NCSC) evaluated the implementation of holistic defense practices at three public defender offices: the Department of Public Advocacy in Bowling Green, Kentucky; the Hennepin County Public Defender in Minneapolis, Minnesota; and the Rhode Island Public Defender in Providence County, Rhode Island. In all offices, on-site interviews and surveys were conducted with attorneys, judges, social workers, investigators, and others with knowledge of practices at the site. Results from the evaluation clarify (1) how indigent defense providers have implemented the principles of holistic defense in practice, (2) how holistic defense practices vary among providers, and (3) what factors have facilitated or impeded implementation of holistic defense practices. A team-based approach to representation was most prevalent at Hennepin County and Rhode Island, where social workers, investigators, and attorneys worked closely together and perceived themselves to be part of a “defense team,” while local constraints reduced the level of teamwork at Bowling Green. The findings make clear that each site approaches the practice of holistic defense differently, largely driven by local priorities and funding realities."
Kyle C. Scherr, Allison D. Redlich and Saul M. Kassin. Cumulative Disadvantage: A Psychological Framework for Understanding How Innocence Can Lead to Confession, Wrongful Conviction, and Beyond. Perspectives on Psychological Science, Online first.
"False confessions are a contributing factor in almost 30% of DNA exonerations in the United States. Similar problems have been documented all over the world. We present a novel framework to highlight the processes through which innocent people, once misidentified as suspects, experience cumulative disadvantages that culminate in pernicious consequences. The cumulative-disadvantage framework details how the innocent suspect’s naivete and the interrogator’s presumption of guilt trigger a process that can lead to false confession, the aftereffects of which spread to corrupt evidence gathering, bias forensic analysis, and virtually ensure wrongful convictions at trial or through pressured false guilty pleas. The framework integrates nascent research underscoring the enduring effects of the accumulated disadvantages postconviction and even after exoneration. We synthesize findings from psychological science, corroborating naturalistic evidence, and relevant legal precedents to explain how an innocent suspect’s disadvantages can accumulate through the actions of law enforcement, forensic examiners, prosecutors, defense attorneys, judges, juries, and appeals courts. We conclude with prescribed research directions that can lead to empirically driven reforms to address the gestalt of the multistage process."
Alisa Smith & Sean Maddan. Misdemeanor Courts, Due Process, and Case Outcomes. Criminal Justice Policy Review, Online first.
"Very little research on courts and sentencing outcomes focuses on misdemeanor courts despite the fact that most crime processed through the criminal justice system is misdemeanor in nature. In fact, the overwhelming empiricism in this area is on felony court outcomes at either the federal or state levels. This research utilized a mixed methodology approach, a combination of observation, survey, and secondary data, to explore misdemeanor court outcomes across the State of Florida. In particular, this research focused on the extent of due process afforded misdemeanor defendants and how this impacted case outcomes. Findings indicate an overall lack of due process and awareness of due process rights across the vast majority of cases. This study also explored sentencing outcomes via traditional metrics associated with contemporary sentencing research. Findings suggest that misdemeanor courts processing operate much differently than felony courts. The implications for future research and policy are discussed."
Stene N. Zane, Simon I. Singer and Brandon C. Welsh The Right to a Good Defense: Investigating the Influence of Attorney Type Across Urban Counties for Juveniles in Criminal Court. Criminal Justice Policy Review, Online first.
"Juvenile defendants in criminal court represent an especially vulnerable group for whom quality legal representation is critical. While some juvenile defendants are able to obtain private counsel, indigent defendants are provided an attorney by the government. One long-standing concern is that these court-appointed attorneys are less effective. Using data on juveniles in criminal court across 37 large, urban counties, the present study examines conviction and sentencing outcomes by comparing private counsel, public defenders, and assigned counsel. Results indicate that defendants with public defenders were less likely to be convicted, less likely to be incarcerated in prison, and served shorter prison sentences compared to defendants with assigned counsel. Contrary to hypotheses, however, the effect of attorney type was not conditioned by court urbanism. The findings suggest that public defenders provide effective legal representation for juveniles in criminal court. Research is needed to determine whether this holds across different contexts (e.g., rural)."
Book chapters
Andrea D. Lyon and Mortimer Smith. Racial Bias, the Defense, and the Challenge of Understanding. in Bias in the Law: A Definitive Look at Racial Prejudice in the U. S. Criminal Justice System, eds. Joseph Avery and Joel Cooper. Lexington Books. Pp. 87-96.[From p. 87] "Our main emphasis here is on how unconscious racism and biases often play a role in our everyday defense decisions."
Unpublished manuscripts
Bellovin, S. M., Blaze, M., Landau, S., & Owsley, B. Seeking the Source: Criminal Defendants’ Constitutional Right to Source Code."The right to a fair trial is fundamental to American jurisprudence. The Fifth Amendment of the Bill of Rights guarantees “due process,” while the Sixth provides the accused with the right to be “confronted with the witnesses against him.” But “time works changes, brings into existence new conditions and purposes.” So it is with software. From the smartphones we access multiple times a day to more exotic tools—the software “genies” of Amazon Echo and Google Home—software is increasingly embedded in day-to-day life. It does glorious things, such as flying planes and creating CAT scans, but it also has problems: software errors. Software has also found its way into trials. Software’s errors have meant that defendants are often denied their fundamental rights.
"In this paper, we focus on “evidentiary software”—computer software used for producing evidence—that is routinely introduced in modern courtrooms. Whether from breathalyzers, computer forensic analysis, data taps, or even FitBits, computer code increasingly provides crucial trial evidence. Yet despite the central role software plays in convictions, computer code is often unavailable to examination by the defense. This may be for proprietary reasons—the vendor wishes to protect its confidential software—or it may result from a decision by the government to withhold the code for security reasons.
"Because computer software is far from infallible—software programs can create incorrect information, erase details, vary data depending on when and how they are accessed—or fail in a myriad of other ways—the only way that the accused can properly and fully defend himself is to have an ability to access the software that produced the evidence. Yet often the defendants are denied such critical access. In this paper, we do an in-depth examination of the problem. Then, providing a variety of examples of software failure and discussing the limitations of technologists’ ability to prove software programs correct, we suggest potential processes for disclosing software that enable fair trials while nonetheless prevent wide release of the code."