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Notable Recent Publications - December, 2020

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.

Articles

Bernardo Oliveira Buta, Adalmir de Oliveira Gomes & Carolina Menezes Lima, Proposal of a Performance Index for the Public Defender's Office, 16 Revista Direito GV. 1.
"The Public Defender's Office is essential for the Justice System functioning, so that evaluating the performance of this organization is fundamental to improving the provision of justice services in the country. This article aims to propose and test an index of performance for the Brazilian Federal Public Defender's Office [DPU]. The data were collected through interviews with defenders and managers and on secondary official bases of the organization and analyzed through content analysis and exploratory and confirmatory factorial analysis. The results show that, in the interviewees' perception, the performance of the Public Defender's Office should be based on the following categories: productivity, success, service capacity, quality of service, speed, access, decongesting and extrajudicial action.The results of the factorial analysis demonstrate the validity of a performance index composed of four factors, such as: assistance to citizens, number of citizens assisted, extrajudicial conciliation and success rate. The application of the index shows that the performance of the DPU has been decreasing over the last years -2014 to 2017. 
 
[Abbreviated from abstract:] "In September 2020, the National Registry of Exonerations reported that over half of the over 2,600 wrongful convictions resulting in exonerations since 1989 listed on the Registry were the result of “official misconduct” of law enforcement and prosecutors.... Historically, wrongful convictions have been deemed reflective of lack of competent defense. However, the recent Registry findings call into question the basic integrity of the criminal justice process, with inadequate defense as one of the contributing factors noted in less than 20% of the exonerations and as the sole factor in less than 5%.... This article focuses on the implications of these findings for defense service providers since they are most immediately connected with defendants at risk. Will full adherence to public defense performance standards alone – even if they can be fully adhered to – guard against wrongful convictions? Or is it now time to bring in other partners in the criminal justice process, including law enforcement and prosecution, to take responsibility for reviewing the standards of practice and canons of ethics that apply to their respective disciplines, identify and promptly redress noncompliance, with sanctions for violators, and take responsibility to work collaboratively with the defense to ensure the causes of wrongful convictions are eliminated insofar as they relate to conduct of any agency involved in the criminal justice process?"
 
Louis J. Capozzi, Sixth Amendment Federalism. 43/3, Harvard Journal of Law and Public Policy, 645-732. 
"This Article focuses ... on state law, arguing that federalism is the key to reforming our misdemeanor indigent defense system.... Descriptively, it documents the current law of the fifty States on the right to appointed counsel and finds that states have not acted in a stereotypically miserly manner. Thirty-four states guarantee a broader right to appointed counsel than the U.S. Supreme Court requires. Normatively, this Article advocates for a more dynamic federalism to improve our misdemeanor indigent defense system. First, this Article challenges the popular scholarly view that there should be a federal constitutional right to appointed counsel in all criminal cases, addressing both legal and policy arguments. Second, this Article focuses on federalism. Because the U.S. Supreme Court has not imposed a uniform solution on all of the states, there is room for experimentation. But many states have not yet seized the opportunity. Intending to shift the conversation toward finding innovative solutions within federalism, this Article introduces three alternatives to providing appointed counsel in misdemeanor cases: non-prosecution, diversion, and an inquisitorial system of adjudication."
 
Janne E. Gaub, Carolyn Naoroz and Aili Malm, Police BWCs as ‘Neutral Observers’: Perceptions of public defenders. 15/2, Policing: A Journal of Policy and Practice, pp. 1417-1428.
"The research on police body-worn cameras (BWCs) has rapidly expanded to evaluate the technology’s impact on a range of police outcomes. Far fewer studies have addressed the various effects on downstream criminal justice actors, and those that do have focused almost entirely on prosecutors. Thus, public defenders have remained on the periphery of the police BWC discussion, despite playing an important role as an end-user of the technology.This study draws on qualitative data from focus groups with public defenders in the Commonwealth of Virginia to discuss the perception of BWCs as neutral observers in a police–citizen encounter. We then provide implications and recommend avenues for future research" [This post was updated Sept 2021 to reflect volume and pagination in June, 2021 issue of this journal.]

Carlie Malone, Plea Bargaining and Collateral Consequences: An Experimental Analysis. 72 Vanderbilt Law Review. 1161-1208.  
"Despite its prominence, plea bargaining is subject to limited regulation. One consequence of this limited regulation is that courts generally only require the direct consequences of a guilty plea to be communicated to a defendant..... Results from [an] experiment demonstrate that communicating collateral consequences [to defendants] decreases the rate of plea acceptance, but the effect of communication dissipates as the difference between the plea bargain sentence and the potential sentence at trial grows larger. Because communicating collateral consequences has an important effect on guilty pleas, this Note suggests that a lawyer's failure to communicate such consequences to their client should be grounds for an ineffective assistance of counsel claim."

Reports

Caren Harp, In Focus: Improving Juvenile Indigent Defense, Office of Juvenile Justice and Delinquency Prevention 
[From the text:] "Juvenile defenders play a critical role in ensuring fairness and equity for youth and families, and in preserving public confidence in the juvenile justice system. By funding efforts that will help to improve outcomes for indigent juvenile offenders, OJJDP is helping to reduce the risk of reoffending, enhance public safety, and increase the likelihood that these youth will become productive,law-abiding members of society" 
 
Harris County Public Defender. Tenth Year Report. (Study of counsel at bail hearings in Appendix A.) 
[From the Overview in Appendix A:] "The Harris County Public Defender's Office (HCPD) with the agreement of Harris County judicial and county officials started providing representation at the first bail hearing, commonly known as the Code of Criminal Procedure's (CCP) "15.17 hearing" though their Bail Division in July 31, 2017.... This report provides a qualitative view of the process and presents general trends since the representation started."
 
[From the Executive Summary:] "This report on risk assessment tools offers useful policy considerations throughout the body of the report. These considerations will aid those in the field representing their clients as well as policymakers and advocates in evaluating the use of various risk assessment tools, and government officials in deploying and replying upon them." 

National Juvenile Defender Center, Limited Justice: Kansas Assessment.
[From the website:] "[T]he Kansas Assessment is based on interviews, court observations, and research conducted by a team of experts who analyzed Kansas’ juvenile defense systems and delinquency courts over the course of a year. The assessment found that while Kansas has succeeded in ensuring that nearly every youth who faces charges in delinquency court is represented by counsel at most stages of the proceedings, the quality of defense young people receive far too often does not fulfill constitutional obligations, meet national standards, or satisfy professional responsibility requirements."

Pretrial Justice Institute, The Case Against Pretrial Risk Assessments.
[From page 1:] "In 2020, after an extensive period of reflection, the Pretrial Justice Institute released a statement opposing RAIs. First and foremost, that position was driven by a strengthening commitment to racial equity and a conviction that the tools do not adequately address the biases inherent in the system. Underscoring this new position, though, was the understanding, based on research, that these tools are not able to do what they claim to do—accurately predict the behavior of people released pretrial and guide the setting of conditions to mitigate certain behaviors. RAIs simply add a veneer of scientific objectivity and mathematical precision to what are really very weak guesses about the future, based on information gathered from within a structurally racist and unequal system of law, policy and practice. This paper interrogates the role that RAIs are supposed to play in advancing pretrial justice, and how they fall short."

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