Skip to main content

Notable Recent Publications - February 2021

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

Azul A. Aguiar-Aguilar Gaining Access to Justice: A Subnational Study of Public Defender Offices in Mexico. Mexican Law Review, New Series. XIII-2. pp. 35-62. 
"With the transition to democracy, Latin American countries have embarked on implementing judicial reforms to redesign justice-sector institutions and build up the rule of law in the region.... I examine the extent to which the changes of transitioning from an inquisitorial to an adversarial system and from a non-merit-based career system to a merit-based career system have affected the way legal counsel is provided at subnational public defender offices.... I collected 50 interviews with public defense attorneys from three Mexican states: Baja California Sur, Jalisco and Nuevo León. Findings from these states suggest that as reform implementation advances, public defenders have more tools to offer legal representation; more specifically, they are better trained, in addition to having higher salaries, a lower caseload per defender and increased access to forensic services."
 
Valerio Bacak, Sarah Lageson and Kathleen Powell, The Stress of Injustice: Public Defenders and the Frontline of American Inequality. SSRN.
"Fairness and due process in the criminal justice system are all but unattainable without effective legal representation of indigent defendants, yet we know little about attorneys who do this critical work—public defenders. Using semi-structured interviews, this study investigated occupational stress in a sample of 87 public defenders across the United States. We show how the intense and varied chronic stressors experienced at work originate in what we define as the stress of injustice: the social and psychological demands of working in a punitive system with laws and practices that target and punish those who are the most disadvantaged. Our findings are centered around three shifts in American criminal justice that manifest in the stress of injustice: penal excess, divestment in indigent defense, and the criminalization of mental illness. Working within these structural constraints makes public defenders highly vulnerable to chronic stress and can have profound implications for their ability to safeguard the rights of poor defendants."
See also this news story on The Crime Report: Public Defenders Suffer From the ‘Stress of Injustice’: Study.
 
Elizabeth Dotson, David C. Brody, and Ruibin Lu, An Exploratory Study of Occupational and Secondary Traumatic Stress Among a Mid-sized Public Defenders' Office. Journal of Criminal Justice and Law, 4/1, 22-39. 
"The impact of stress on the mental and physical well-being of criminal justice professionals is of critical import for the effective operation of the criminal justice system. While a number of studies have examined various forms of stress among law enforcement and correctional officers, minimal research has examined the presence and impact of stressors among individuals working in the criminal courts. This exploratory study examines whether indigent defense attorneys suffer from occupational stress and secondary traumatic stress. A survey of attorneys from a mid-sized public defender’s office were found to have symptoms of severe occupational stress as well as high levels of secondary traumatic stress. Furthermore, regression analyses indicated that secondary traumatic stress and severe occupational stress had significant negative impacts on attorney job satisfaction. Implications for these preliminary findings are discussed as well as recommendations to limit the negative impacts stress has on indigent defense attorneys."
 
Amy F. Kimpel, Violent Videos: Criminal Defense in a Digital Age Georgia State University Law Review, vol. 37.
"Digital video evidence has exploded into criminal practice with far-reaching consequences for criminal defendants, their attorneys, and the criminal legal system as a whole. Defense attorneys now receive police body-worn camera footage, surveillance video, and cell phone video in discovery in even the most routine criminal cases. This Article explores the impact on defense attorneys of reviewing this avalanche of digital evidence. The author posits that the outsized role of digital evidence in criminal cases is taking a toll on defense attorneys in general—and public defenders in particular—resulting in increased burnout and secondary trauma. This Article includes results from a recent survey by the author that indicate that public defenders are increasingly exposed to disturbing digital content—videos capturing violence by clients, police, and others. The survey further suggests that these images are impactful, increasing the emotional workload of defense attorneys and exacerbating burnout. Videos with violent or emotional content can also strain the attorney-client relationship by collapsing the distance between attorney, client, and crime. Implicit racial bias can also color what we see when viewing violent videos. These trends raise new concerns about defense attorneys’ abilities to advocate zealously for their clients and meet constitutional standards, particularly for public defenders whose caseloads require more frequent interaction with digital video evidence and whose day-to-day practices have been reshaped dramatically by its presence. Finally, this Article suggests strategies to address the added toll of digital content on defense attorneys to ensure that defendants receive effective representation in the digital age."
 
Pascal D. König and Georg Wenzelburger, When Politicization Stops Algorithms in Criminal Justice, British Journal of Criminology.
The present paper sheds light on the conditions for successfully implementing pretrial risk assessment tools by looking at barriers to their implementation and, specifically, political factors that can derail this process. Drawing on theoretical assumptions about the role of agenda-setting and public discourse in policy change, we examine three US states where the implementation of pretrial tools was halted or heavily restricted. Our findings suggest that a politicization of these tools plays a central role for thwarting their implementation. This has less to do with their technical properties or performance. Rather, through reaching high-level politics, those tools are publicly linked to concerns about opacity, fairness and public safety such that it simply becomes politically safer for politicians to stick with the status quo. 
 
Taylor Needham, Abena Subira Mackall, and Becky Pettit, Making Sense of Misdemeanors: Fine Only Offenses in Convivial Court Rooms, Sociological Perspectives.
"This paper investigates how the complexity of and everyday interactions within the criminal legal system sow confusion about the causes and consequences of low-level misdemeanor, or fine only, legal entanglements. Drawing on data from 62 interviews with people assessed legal debt and 240 hours of ethnographic observation in courtrooms, we describe inconsistencies between the design of the criminal legal system and the organization of defendants’ lives that undermine the ability of defendants to satisfactorily or summarily resolve their legal cases. We also consider how interpersonal interactions within courts undermine the power of defendants to challenge legal authority, court norms, and established criminal legal processes. These findings illustrate a mismatch between expectations about and experiences with misdemeanor charges that place undue burden on disadvantaged defendants and highlight the scale and impact of fine only misdemeanors as a central inequality generating feature of the contemporary criminal legal system."

National Institute of Justice Crime Solutions website

National Institute of Justice, Program Profile: The Bronx Defenders Holistic Defense Model (New York), Crime Solutions.
[From the project summary:] This is a program that uses an interdisciplinary team to address factors contributing to clients’ contact with the court. The program is rated No Effects. Although participants showed a statistically significant lower likelihood of receiving jail time and were sentenced to fewer days in jail, there were no statistically significant effects on overall conviction rate and likelihood of future arrest. The preponderance of evidence suggests the program did not have the intended effects. 
[From the article:] "A new poll from Data for Progress and The Lab, a policy vertical of The Appeal, shows that voters in New York and California—two states with large numbers of federal judicial vacancies—overwhelmingly support their senators recommending more civil rights lawyers and public defenders for the federal bench." 

Thesis

The purpose of this qualitative transcendental phenomenological study was to explore the lived experiences of veteran public defenders (PDs) and reveal how their emotional intelligence and learning affects their longevity with a PD organization.... The data collection was comprised of in-depth, face-to-face interviews with six federal PDs in the southern district of California.... Six themes emerged that represent the lived experiences: (a) employees need to feel they are appreciated on the job, (b) fighting for, caring, and commitment to the client is a strong motivator, (c) the benefits of the job extend beyond the paycheck, (d) PDs learn legal work by litigating cases in court, (e) PDs don’t win a lot of cases and they view courtroom case victories differently and (f) emotional intelligence plays an effective role in the job of a PD. Recommendations for leadership was to encourage organizational growth by putting methods in place to increase a culture of appreciation and implement emotional intelligence testing and training for managers. Recommendations for future research include replicating this study on a national scale and including former public defenders that had longevity of seven years or more with the public defender system.
Labels: