Skip to main content

Notable Recent Publications, July 2024

 

Notable Recent Publications features the latest empirical research and data related to indigent defense. If you have suggestions, ideas for work that should be included, or trouble accessing any of the articles featured, please write to Venita Embry at vembry@rti.org


Articles

Duhart Clarke, S. E., Zottola, S. A., McKinsey, E., Kurtz, B., Shao, T. T., Morrissey, B., & Desmarais, S. L. (2024). Indigent Injustice: A Systematic Review and Meta-analysis of People’s Criminal Legal Outcomes. Critical Criminology, 1-41.

The United States Constitution guarantees every citizen access to counsel to fundamentally preserve the right to a fair trial. Over two-thirds of criminal defendants lack the resources to secure an attorney and are thereby deemed indigent by the court. The dearth of generalizable data for indigent defendant outcomes leads legal scholars to cite the pragmatic and theoretical mechanisms for evaluating the effectiveness, or lack thereof, of publicly funded defenders. Empirical evidence is restricted by studies conducted in specific jurisdictions and on particular stages within criminal processing. Consequently, a broad understanding of indigent defendants’ outcomes is limited and often disjointed; thus, underscoring the need for a systemic evaluation of the current empirical literature. The goal of the current study was to conduct a meta-analysis on studies of outcomes for people with public defenders, assigned counsel, and retained attorneys to better understand what (if any) discrepancies exist in criminal legal outcomes as a function of indigent defense status. Specifically, this study examined the current empirical literature on pretrial, case, sentencing, and post-case outcomes for indigent defendants compared to defendants with private/retained attorneys and for those with public defenders compared to assigned counsel. Overall, results showed that indigent defendants experience worse outcomes across court processing stages than defendants with retained counsel. Results showed fewer discrepancies between defendants with public defenders and assigned counsel. Findings suggest that the disadvantages indigent defendants experience in criminal legal outcomes are likely an effect of systemic and individual biases rather than a consequence of ineffective counsel.

Reports

Campos-Bui, S., Wallace, R., & Virani, A. (2024). LARGELY UNCHANGED. https://www.law.berkeley.edu/wp-content/uploads/2024/06/UCLAxUCB-2024-Largely-Unchanged_WEB_Pages.pdf

In 2022, we released our report, “Coming Up Short: the Unrealized Promise of In re Humphrey.” In that report, we analyzed the impact of the Humphrey decision on the behavior of various system actors and the jail population to understand whether the decision was having its intended effects. Our analysis found that there was no evidence that Humphrey resulted in a net decrease of the pretrial jail population in California, a decrease in median bail amounts, or a decrease in the average length of pretrial detention.

Further, we found that the case influenced criminal legal system actors’ behavior in a variety of ways. Judges were misinterpreting Humphrey, leading to dire consequences, such as an increase in no bail holds (holding someone in pretrial detention without setting cash bail). Defense attorneys reported that they were often dissuaded from raising Humphrey arguments and that they faced increased and new procedural hurdles post-Humphrey. Prosecutors’ offices responded inconsistently to the decision and were also encouraging the use of no bail holds. Probation departments began sharing more information with courts pretrial and proactively resourced the increased use of pretrial release conditions and probation supervision as a result of Humphrey.

Jones, L. (2024). Ability to Pay: Closing the Access to Justice Gap with Policy Solutions for Unaffordable Fines and Fees. National Center for Access to Justice. https://ncaj.org/sites/default/files/2024-06/Ability%20to%20Pay%20Report%20Final%20May%202024.pdf

Building on NCAJ’s Fines and Fees Justice Index—an online tool that ranks states based on their degree of adoption of policies that curb abusive fines and fees practices—NCAJ set out to find examples of states that provide especially good protection for people, focusing on states’ requirements and procedures for determining ability to pay. NCAJ did a deep dive into the laws on the books for each state that received credit in its Fines and Fees Justice Index for benchmarks that touch on ability to pay; researched caselaw in each state that requires judges to make ability to pay determinations; completed an extensive literature review of writings and studies on ability to pay practices in fines and fees cases across the country; analyzed bench cards that provide guidance to judges about setting fines and fees; and interviewed practitioners across the country. 

Based on this analysis, NCAJ found that no state or locality is doing well, overall, when it comes to determining ability to pay. We did, however, find examples of laws and practices – policy models – that stand out as worthy of consideration for evaluation and for possible replication because they appear to be more protective, as compared to those in other states. In this report, we have gathered the policy models that impressed us as worthy of additional consideration and evaluation.

Nyffeler, K. (2024). Ethics in Law and the Effects on Mental Health: An Interview Study. https://digitalcommons.unomaha.edu/university_honors_program/309/

On August 2, 1983, The American Bar Association Model Rules of Professional Conduct were adopted by the House of Delegates. This set of rules provides legal professionals with the guidance needed to uphold the rule of law and to preserve justice. In this set of rules, lawyers learn the duties of confidentiality, client relations, diligence, and the overall conduct owed to the courts. Furthermore, these duties can be demanding and oftentimes challenging. Therefore, this study examined the different ethical rules as they apply to lawyers and how these demands can impact their mental health. Interviews were conducted with six lawyers in Nebraska to help provide a first-person point of view. This study concluded that rather than the demands that follow the ethical standards of lawyers, it is the heavy workload and stressful environment that has the greatest potential to lead to mental health concerns.