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
David Abrams, Viet Nguyen, Aurélie
Ouss, and Julia Reinhold, “A (Plea) Offer You Can Refuse”
Plea bargaining is ubiquitous in the US justice system, yet lack of data
on rejected plea offers limits analyses. Addressing this
gap, we compile a dataset including all initial plea
offers—accepted and rejected—from 23,000 felony cases in Philadelphia, enabling us to analyze the interplay between plea offers, defendant
decisions, and case outcomes. Our
analysis yields three significant insights. First, even after controlling for detailed case observables, initial plea offers are longer for Black
defendants, especially for those in jail
pretrial. Second, initial plea offers that are rejected tend to exceed eventual sentences, even for defendants convicted in jury trials. This
challenges prevailing theories that
defendants are penalized at sentencing for opting for protracted trial proceedings. Third, our empirical analyses highlight limitations of using
plea bargains as counterfactuals for rejected offers, which
can lead to inaccurate estimations of the trial penalty’s
magnitude and even direction. Our study underscores the complexity of bargaining dynamics, emphasizing the need for new theoretical frameworks
and data on rejected offers to inform both theory and
practice.
Bettens, T., & Cleary, H. M. (2024). Defense attorney perspectives about juvenile interrogations: SROs, parents, and the adolescent defendant. Psychology, Crime & Law, 1-27.
Adolescent suspects’ developmental
immaturity renders them more susceptible than adults to unreliable and
involuntary confessions. Defense attorneys can mitigate youths’
interrogation-related vulnerabilities; however, no quantitative studies examine
attorneys’ views on juvenile interrogations and confession evidence. We
surveyed 137 juvenile defense attorneys regarding the role of counsel, parents,
school administrators, and school resource officers (SROs) in juvenile
interrogations and confessions and whether juvenile client age and indigent
status related to perceptions. Defense attorneys reported that most juveniles
waive their rights and incriminate themselves to police before attorneys even
receive the case. Attorneys agreed that parents should be allowed to
participate if they wish, even though they believed parents are often
uninformed or unhelpful in the defense process. According to this attorney
sample, SROs often question students without Mirandizing them, and students
believe they must answer questions from both SROs and school administrators.
Attorneys reported numerous challenges associated with defending interrogated
juveniles, including dispositional vulnerabilities, parent-related problems,
systemic challenges, and litigation difficulties. Overall, findings indicate
the need for policy and practice reforms like required assistance of counsel
during interrogations, electronic recording of interrogations,
developmentally-informed training for school administrators, SROs, prosecutors,
and judges, and improved discovery and funding to support youth.
Reports
Michelle Miao, Does a Lawyer
Make a Difference? A Study on the Sentencing of Death-Eligible Drug Offenders
in China, 114 J. Crim. L. & Criminology 43 (2024).
https://scholarlycommons.law.northwestern.edu/jclc/vol114/iss2/3
Does legal representation affect
critical judicial decisions? This Article highlights a paradox at the heart of
the court sentencing processes used for death-eligible drug offenders in China.
On the one hand, lawyers are regarded as a staple of due process. On the other,
court decisions are insensitive to the availability (whether drug offenders
have access to legal assistance) and the quality (the varieties and the
conditions of legal services provided by private versus court-appointed
attorneys) of legal representation. I argue that this perplexing contradiction
derives from the institutional alienation of criminal lawyers in China, a
theory containing three main dimensions: power deficit, identity confliction,
and proceduralbased legitimacy. The defense lawyer has little power to
determine capital drug sentencing decisions; at the same time, criminal defense
lawyers are unable to fully realize themselves in their professional
activities. They are used as instruments to advance bureaucratic and political
interests and are therefore exposed to impoverished and instrumental
relationships with judicial institutions and their own activities. This
paradox—the insignificance of differences—takes place in China’s
non-adversarial judicial settings and its authoritarian political environment.
It is differentiated but connected with a paradox between eradicating
inequality and providing adequate assistance to the most marginalized
defendants in adversarial criminal justice systems. This Article adopts mixed
research methods, including qualitative interviews of legal professionals
across China and quantitative measures based on a regression analysis of
national-level (N=10,132) and provincial-specific (N=3,955) samples of court
judgments.
Naraharisetti, S. (2024). Public Defense Attorneys' Perception of Race and Bias. https://www.innovatingjustice.org/publications/public-defense-attorneys-perception-race-and-bias
Public defense attorneys play a pivotal role in addressing the racial inequities that many clients face in the criminal legal system while also experiencing the impact of those racial inequities themselves. This exploratory study aims to illuminate how attorneys consider race in their work, conceptualize their role in addressing racial inequity, and experience the impact of their racial or ethnic identities in the workplace. Our survey of 690 public defense attorneys reveals that race significantly influences public defense practice and culture. Attorneys recognize racial inequities in the legal system and adapt their strategies accordingly, with notable differences between attorneys who are white and attorneys who are Black, Indigenous, or People of Color (BIPOC). White attorneys often find that race hinders their relationships with BIPOC clients, while BlPOC attorneys are more likely to report adjusting case strategies for BIPOC clients. Inequities within the profession—such as a lack of diversity among attorneys and leadership, limited opportunities for dialogue, and workplace racism—are particularly felt by BIPOC attorneys. We hope this report will inspire reflection and discussion among public defense agencies about racial bias in the field and help pave the way to identifying and evaluating actionable solutions.
Michael L. Perlin, Talia Harmon, Maren
Geiger & Moana Houde-Camirand, “Their Futures, So Full of Dread”: How
Barefoot’s Contamination of the Death Penalty Trial Process Continues, 27 RICH.
PUB. INT. L. REV. 77 (). Available at: https://scholarship.richmond.edu/pilr/vol27/iss3/5
We wrote this paper to assess how the
Fifth Circuit has construed Barefoot v. Estelle (463 U.S. 880 (1983) for the
past forty years. The cases we discuss fall mainly into these groupings:
• Cases that rely on the shibboleth that the adversary process can be counted
on to, in Justice White’s unfortunate phrase, “separate the wheat from the
chaff.
• Cases that reject Daubert’s potential impact on the holding of Barefoot, in
some instances finding specifically that Daubert has no application to capital
cases.
• Cases that reject adequacy-of-counsel arguments based on Strickland v.
Washington , and
• Cases that involve the so-called “battle of the experts.”
We argue that, in spite of the Fifth Circuit’s decisions on this question,
Daubert and Kumho have implicitly overruled Barefoot in this context, and that
lower courts should acknowledge this. We then construe these findings through
the lens of therapeutic jurisprudence (TJ), focusing on the Court’s failure to
take seriously defendants’ Strickland-based arguments and its obeisance to the
adversarial process cliche, concluding that continued adherence to Barefoot
mocks TJ principles.