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.
Videos
Articles
Ashlee Beazley, Take
(What They Say) With a Pinch of Salt: Engaging in Empirical Research to
Understand the Parameters of the ‘Quality’ in ‘Poor-Quality Defence
Lawyering’
2022, 2/1, Journal of Legal Research Methodology, 75-99.
[This study] seeks to construct a theoretical framework by which poor-quality (insufficient) defence representation may be identified, understood, contextualised, addressed and remedied. To this end, the empirical research undertaken and outlined in the article which follows focuses on a particular source of information: the data acquired from semi-structured interviews held with defence practitioners about their (own) perceptions, opinions and experiences of the quality of defence representation. The article discusses the extent to which lawyers are a reliable source of data and the usefulness of empirical research as a means by which legal theory may be developed, articulated and tested. If, for example, quality lawyering is to be defined in the hope of demarcating “sufficient” quality from “insufficient”, then it is both natural and necessary to involve the subjects of this research, the lawyers. A qualitative empirical study which utilises constructivist grounded theory and critical realism is, this article suggests, one means by which this delineation may be ascertained, one which also seeks to contextualise the data obtained whilst acknowledging the role and effect of the researcher in question.
Elsa Y. Chen, Emily Chung & Emily Sands, Courtroom Workgroup Dynamics and Implementation of Three Strikes Reform. Law & Policy
In 2012, California’s voters passed a ballot initiative that scaled back the state’s “Three Strikes” sentencing law.... [T]his study examines how characteristics of courtroom workgroup members; their intergroup dynamics; political, professional, and administrative considerations; and allocated resources were perceived by court officials to facilitate or impede the implementation of this reform in county courts. Availability of staff and budget was associated with a higher proportion of completed case dispositions in the first 2 years of implementation, but resources were not the only factor associated with timely case processing. Courtroom actors’ seniority, experience, and professional security facilitated agreement on processes, schedules, and other details. Small, stable, close-knit groups established routine procedures and developed expertise more quickly, but could not always avoid bottlenecks or delays. Less stable workgroups had higher rates of denial of petitions for resentencing. Positions toward Proposition 36 shaped by political, professional, or other priorities were perceived to influence some elected DAs’ positions and line prosecutors’ behavior, manifesting in cooperation, opposition, or mixed messages.
Emily Denne, Suzanne St. George, and Stacia N. Stolzenberg Developmental Considerations in How Defense Attorneys Employ Child Sexual Abuse and Rape Myths When Questioning Alleged Victims of Child Sexual Abuse. 38/23-24 Journal of Interpersonal Violence, pp. 11914– 11934
Myths and misconceptions surrounding the nature of sexual assault play a role in shaping the perceptions of victims as credible and perpetrators as culpable. Defense attorneys often capitalize on myths in court as an element of their defense strategies.... In the current study, we examine 6,384 lines of questioning across 134 criminal trials of CSA [child sexual abuse] to assess whether defense attorneys employ developmentally sensitive strategies when asking children questions that draw upon myths about sexual violence... We found that attorneys did not vary their use of CSA myths by the age of the child. However, the probability that a child would receive a rape myth-consistent line of questioning, increased with a child’s age... Prosecutors should be prepared to counterquestion these myths in redirect examination.
Ben Grunwald, Racial Bias in Criminal Records. Journal of Quantitative Criminology
Government officials use criminal records as proxies for past conduct to decide who and how to investigate, arrest, charge, and punish. But those records may be racially biased measures of individual behavior. This paper develops a theoretical definition of bias in criminal records in terms of measurement error. It then seeks to provide empirical estimates of racial bias in official arrest records for a broad swath of offenses. I use official arrest and self-reported crime data from the Pathways to Desistance study to estimate Black-to-white and Hispanic-to-white crime ratios conditional on arrest. I also develop a novel, theory-based empirical test of differential reporting across racial and ethnic groups. Compared to white subjects with the same number of arrests, I estimate that Black subjects committed 53, 30, 23, and 56% fewer property, violent, drug, and DUI offenses, respectively, and that Hispanic subjects committed 19 and 46% fewer drug and DUI offenses. The analysis finds relatively little evidence of differential reporting that would bias my estimates upwards, with the possible exception of drug trafficking offenses. The results provide evidence that Pathways subjects’ arrest records are racially biased measures of their past criminal behavior, which could bias decisions of criminal justice officials and risk assessment algorithms that are based on arrest records.
Isabelle M. Geczy,
Captive Without Counsel: The Erosion of Attorney-Client Privilege for Incarcerated Individuals. UCLA Law Review.
When in-person visitation was eliminated due to COVID-19 lockdowns, every communication method that incarcerated individuals were able to access carried with it the likelihood or certainty of surveillance, destroying their access to communication with attorneys that preserved the privileged nature of such communication.... What follows is a study of the four main alternative communication methods offered during COVID-19 lockdowns to incarcerated individuals: mail, phone, email, and video calls, and the ways in which each fail to afford communications actually protected by attorney-client privilege. This Comment then identifies how holistic and overarching reforms of communication systems for incarcerated individuals and their attorneys must be implemented in order to uphold attorney-client privilege and the criminal defendant’s Sixth Amendment constitutional right to counsel.
Priyanka Goonetilleke, Judicial Bias Against Minority and Female Attorneys. Unpublished job market paper.
A defendant with a Black attorney is 2.8 percentage points less likely to be released when assigned a judge in the bottom quartile of this ranking compared with being assigned a judge in the top quartile. The impacts of bias against Black attorneys would be disproportionately borne by Black defendants, given their preference for Black representation when able to hire their attorney. I find that an increase in judges’ favorability toward Black attorneys by one standard deviation of the estimated relative favorability would decrease the racial gap in pretrial release rates by 33%. As case outcomes affect not only defendants’ freedom but also attorneys’ productivity and wages, judicial bias may also help explain minorities’ continued underrepresentation in the legal profession, particularly in its higher ranks.
Carlton F. W. Larson, The Origins of Adversary Criminal Trial in America, U. C. Davis Law Review.
...American jurisdictions pioneered the use of defense counsel in felony cases, a practice that was not allowed in England until the 1730s (and then only in piecemeal fashion)....Famed American defense lawyers, such as the fictional Perry Mason, are not American copies of English originals, but a distinctive American creation. [T]he most plausible explanation for this innovation [is] the parallel development of public prosecution by lawyer prosecutors....[I]t is plausible that the American introduction of felony counsel contributed to the rise of such counsel in England. Unlike many other areas of common law, where American courts simply followed English practice, this aspect of English
law may have deep American roots.
Angelo Petrigh, Judicial Resistance to New York's 2020 Criminal Legal Reforms. 113/1, Journal of Criminal Law and Criminology, 109-174.
New York's 2020 criminal legal reforms sought to reduce pretrial detention and to provide greater access to discovery for the defense by curtailing judicial discretion to set bail and judicial power to excuse prosecutorial discovery delays. But judges opposed the law both surreptitiously and openly through defiant opinions, administrative adjustments, and routine court actions that undercut the reforms' intended effects.... Although these reforms were democratic and popular, judges were not sufficiently incentivized to properly implement the changes. If reforms are to succeed, the popular and political will to pass the reforms must extend beyond the passage of the law and must also create mechanisms to scrutinize, guide, and support the judiciary's implementation of the law.
Pollyana Piceli Rodrigues and Terezinha Richart, The Application of Free Justice in Criminal Law From the Perspective of the Public Defense Office, 3/29, Scientific Journal of Applied Social and Clinical Science.
[T]he 1998 [Brazilian] Federal Constitution established in its article 5, item: LXXIV, that the State has the obligation to provide full and free legal assistance to those who prove insufficient resources.... Through research into doctrines, laws, jurisprudence, and a case study in a specific Criminal Court in the Southern Region of Minas Gerais, it was found that there is a divergence of understandings regarding the granting of free justice to those assisted by the Public Defender’s Office - that these are people with insufficient resources - in criminal proceedings. In view of this divergence, this research exposed the arguments in favor of granting exemption from procedural costs, and the arguments that support the opposite understanding, concluding that the benefit must be guaranteed for those assisted by the Public Defender’s Office after analyzing these reflections.
Marcus Pratt and Trevor C. W. Farrow, Exploring the Importance of Criminal Legal Aid: A Canadian Perspective, 2023 Windsor Yearbook of Access to Justice, pp. 123-144
This article, through an examination of existing legal aid research primarily in the area of criminal law, explores some of what we know and do not know about the relative benefits and costs of providing different kinds of criminal legal aid services. Although not a comprehensive review of all available research, this article identifies data strengths and gaps and the need for further research and reforms.
Gillian Slee, Of the State, Against the State: Public Defenders, Street-Level Bureaucracy,and Discretion in Criminal Court. 97/4, Social Service Review.
This study draws on fieldwork with public defenders to describe how institutional position and professional knowledge condition discretion. I analyze how the dynamics of representation inform defenders’ understandings of and advocacy for clients with varying criminal-legal backgrounds and needs. In this case study, defenders’ perceived strategic options penetrate their estimations of clients’ deservingness and drive their advocacy. Tailored representation elevates the needs of individuals without records and those with unremitting criminal-legal contact, helping attorneys manage their caseloads and advance their aspirations, but it produces uneven defense. I develop a role concept, “structural antagonist,” to signify and describe a uniquely situated street-level bureaucrat whose mandate includes both serving and straining the institution.
David Z. Smith, Kevin W. Borders, Steve Katsikas, and Tina Maschi, Holistic Defense: Attorney Perception and Social Integration in the Courtroom. Journal of Forensic Social Work.
The goal of this project is to survey attorney perceptions of social workers. This will lead to suggestions on how social workers can be more effectively integrated into the courtroom and legal system as well as to suggestions for further study.
Emily Suiter & Christi Metcalfe, The Impact of the Defense Attorney on Plea Decision-Making: An Experimental Analysis, Criminal Justice and Behavior.
[W]e administered an
experimental vignette to a national sample, manipulating defense
attorney type, race, sex, experience, familiarity with other courtroom
workgroup members, and empathy toward the defendant. We found that
respondents were more likely to accept a plea offer if the defense
attorney was experienced and empathic. When the defense attorney was
private, experienced, familiar, or empathic, respondents rated their
defense attorney as more qualified, which then influenced their
acceptance of the plea offer. Uncertainty of the outcome, consequences
of a plea, and reasonableness of the plea offer were the common
motivators in decision-making.
Elizabeth Webster, Beth M. Huebner, Alessandra Milagros Early, and Luis C. Torres, "Court Can Happen Anywhere": Courtroom Workgroup Members' Perceptions of the Challenges and Opportunities of a Transformed Workplace. 50/11 Criminal Justice and Behavior, pp. 1737-1756.
This study employs a courtroom communities perspective to examine how courtroom workgroup members perceived COVID-19’s impact on their work, their workgroup relationships, and the future of criminal court procedures. It analyzes data from semi-structured interviews with 22 prosecutors, 17 defense attorneys, and 10 judges in Milwaukee, WI, and St. Louis, MO. We find that moving to virtual proceedings limited opportunities for informal interaction. The immediate impact was to upend the courtroom communities’ familiarity, proximity, and stability with implications for plea negotiations and case resolution. Nevertheless, most participants supported using virtual proceedings for certain types of court hearings. Public defenders were more likely than prosecutors, judges, or private defense attorneys to express concerns about technological difficulties for defendants. We conclude by discussing policy and practice implications and identifying areas for future research.
Ning Yang, Examination of Foreign Legal Aid Systems and Their Operating Mechanisms, 5(1), Academic Journal of Management and Social Sciences, pp. 181-184.
The extraterritorial experience of legal aid mechanisms should also be examined in a dynamic and practical manner. It is impossible to understand the actual system of a country on the basis of its legislative texts or the jurisprudence of its courts. As Ehrman, a famous comparative law researcher, emphasized, “When comparing, it is possible to know what must be functionally compared rather than just words. No matter how serious it is, it cannot be based only on legal provisions. No matter how clear and explicit it is, we must observe its actual effects.” Therefore, it is necessary to use the “five pairs of relationships” that support China's legal aid operation mechanism as the basic analytical framework to examine the basic experience of representative extraterritorial countries' legal aid operation mechanisms, and present their normative structure and practice. In order to objectively analyze the advantages and ingrained habits of the extraterritorial legal aid system, and reconsider the interrelationships between the five entities of the government, legal aid agencies, aid lawyers, aid recipients, and case handling agencies.
Arturo Romero Yáñez and Neel U. Sukhatme, Judges for Sale: The Effect of Campaign Contributions on State Criminal Courts. Social Science Research Network.
Scholars and policymakers have long sought to determine whether campaign contributions affect democratic processes. Using data on donations from Texas, we show that criminal defense attorneys who contribute to a district judge’s electoral campaign are preferentially assigned by that judge to indigent defense cases, i.e., public contracts in which the state pays private attorneys to represent poor defendants. We estimate that attorney donors receive twice as many cases as non-donors during the month of their campaign contribution. Nearly two-thirds of this increase is explained by the contribution itself, with the remainder attributable to shared preferences within attorney-judge pairs, such as professional, ideological, political, or personal ties. Defendants assigned to donor attorneys also fare worse in cases resolved in the month of contribution, with fewer cases dismissed and more defendants convicted and incarcerated. Further evidence suggests recipient judges close cases to cash out their attorney benefactors, at the expense of defendants. Our results provide some of the strongest causal evidence to date on the corrosive potential of campaign donations, including their impact on the right to counsel as guaranteed by the U.S. Constitution.
Reports
Marea Beeman and Clare Buetow. Gideon at 60: A Snapshot of State Public Defense Systems and Paths to System Reform.
In collaboration with the U.S. Department of Justice’s Office for Access to Justice (ATJ), the National Institute of Justice (NIJ) sponsored this report on contemporary public defense system models in recognition of the 60th anniversary of Gideon. The report presents findings from a national scan of the models currently used for adult, trial-level, criminal cases in U.S. state, local, and tribal jurisdictions. Key research questions were to identify the prevalence of different models, factors contributing to how jurisdictions select different models, and variations in case and other outcomes associated with each model.
Lisa Bailey Vavonese and Alysha Hall, The Failure of Gideon and the Promise of Public Defense. Center for Justice Innovation.
[From the website:] In a system rife with economic and racial disparities and swollen jail populations, what would change if everyone—no matter their income—got the minimum that all people deserve: someone with the time, resources, and training to effectively defend them in court? That question was the focus of a roundtable hosted by the Center for Justice Innovation on the 60th anniversary of the Gideon v. Wainwright decision, which ruled that anyone facing incarceration has a right to an attorney regardless of their ability to pay. Building off that conversation, this policy brief identifies key areas where public defenders and jurisdictions are, despite their limited resources, testing out new initiatives and working to make the promise of Gideon a reality.
Book Chapter
Charles D. Weisselberg, Look Forward, Not Back: A Perspective on Defense Lawyering in the United States. Forthcoming in Poor Defence Lawyering: A Comparative View (Panzavolta, M. & Sanders, A. eds., 2023)
The chapter reviews different models and concludes that the best way forward is to build and fund institutional structures based on a public defender office model. Regrettably, given our federalist system, this must be done state-by-state, and even county-by-county.
News item
Russell Contreras, AI helps defense attorneys sift through police body cam videos, Axios.
A new tool that uses artificial intelligence to quickly sift through thousands of videos is helping defense attorneys comb through mountains of police body cam footage to find videos helpful to defendants' cases.
Book review
Sara Mayeux, The Defender: The Battle to Protect the Rights of the Accused in Philadelphia by Edward W. Madeira Jr. and Michael D. Schaffer. 90/4, A Journal of Mid-Atlantic Studies, pp. 642–644.
Thesis
Annmarie Khairalla, Examining the Role of Race in Plea Decision-Making for Defense Attorneys and Laypeople. Ph.D. thesis, Forensic Psychology, Ontario Tech University.
...Study 1 explored the extent to which defense attorney recommendations differ depending on the race of the defendant and the strength of the evidence. Results indicate that defense attorneys do not make decisions based solely on the race of the client, but rather in conjunction with other factors, such as the evidence. Defense attorneys thought that it would be better for Black defendants with strong evidence to accept a plea deal than similarly situated white defendants. Study 2 explored the extent to which peer recommendations differ depending on the race of the defendant and the strength of the evidence. Results indicate that students are influenced by both race and evidence strength separately, but not together. Student participants are influenced by the race of the client, but in a counterintuitive pro-Black direction where they thought that their white friends were more guilty, so they were more likely to recommend the plea deal. The additional analysis compared the results of Study 1 and Study 2 to explore if defense attorneys and student participants make different plea-related recommendations and judgments. Results of the additional analysis indicate that student participants demonstrate more racial bias in their recommendations, and they are more pro-plea than defense attorneys...
Conference Materials
IDRA panels at the American Society of Criminology meeting. The full program from the event can be found here.