Skip to main content

Notable Recent Publications, December 2019

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

Typically in Notable Recent Publications, we highlight empirical research on indigent defense issues. Occasionally, we also feature pieces written by our members, even when they are non-empirical, or don’t deal with indigent defense topics. In so doing, we hope we can serve both to update IDRA on the latest research in our field, and on the most recent activities by our members.

This week we feature a piece by our friend the late Ken Strutin, formerly Director of Legal Services at the New York State Defenders Association, who passed away suddenly at the end of 2018. His piece, “From Poverty to Personhood: Gideon Unchained,” appeared posthumously in the Mitchell Hamline Law Review this month, and we are pleased to include it here in his memory.

IDRA Special issue of Criminal Justice Policy Review

 IDRA’s third collection of defense-related empirical research will be published shortly in Criminal Justice Policy Review.  The collection includes seven articles authored by IDRA members and touching on diverse aspects of empirical work in our field.  Articles are published online before print, and this month the Davies et al. piece below became available.

Andrew L. B. Davies, Giza Lopes and Alyssa Clark – Unique New York? Theorizing the Impact of Resources on the Quality of Defense Representation in a Deviant State. Criminal Justice Policy Review (online first).

Litigation in New York State has resulted in the allocation of substantial new funding to limit indigent defense caseloads and improve representation provided to criminal defendants. Funding injections have rarely been studied in defense, however, so it is not clear what will be the effects of the new resources. Defense critics expect their impact to be transformative, but empirical scholarship is more pessimistic. We sort between these perspectives using exploratory interviews with the individuals most critical to the planned reforms: executive-level chief public defenders. Conceptualizing defense service quality in terms of “public value,” we find points of deviation from both  the  optimistic  and  pessimistic  accounts.  New  York  is  a  “deviant  case,”  we  argue, which can be used to break new theoretical and empirical ground around the question of how resources impact defense service quality.


Catherine Burnett – Choosing Choice: Empowering Indigent Criminal Defendants to Select Their Counsel. South Texas Law Review, vol. 60/2, pp. 277-324.

[From the introduction:] “For those policymakers struggling to bridge the divide between system-delivered counsel and client-selected counsel, this Article proposes another option, one that incorporates concepts of well-chosen defaults, principled choice options, and personal freedom in making those choices. It proposes that a pilot program be commissioned in a major American city with a strong public defender presence, building on the preliminary, groundbreaking work of the Texas Indigent Defense Commission in Comal County, Texas.

“Part II of this Article briefly outlines key constitutional basics of the Sixth Amendment guarantee of counsel in criminal prosecutions in terms of the right to counsel, the requirement of effective counsel, and the right to choose counsel. Part III highlights delivery methods currently used to provide counsel for indigent defendants, together with the major advantages and challenges of each system. Part IV describes the two "choice" models currently under theoretical consideration. Part V dives more deeply into the competing arguments surrounding client choice paradigms by considering benefits and challenges of choice systems both systemically and for the individual defendant. Part VI examines the sole project in the nation to date to have examined the implications of a system where indigent defendants choose their own counsel. The Article concludes in Part VII with areas for further study and a recommendation that informed client choice finds its way into the mainstream of alternatives for providing counsel for the indigent criminal defendant.”

George Burruss, Jennifer Peck, and Alesha Cameron – Fifty Year post Gault: A Meta-Analysis of the Impact of Attorney Representation on Delinquency Outcomes. Journal of Criminal Justice, online first.

Purpose: The United States Supreme Court decision In re Gault highlighted the importance of legal representation throughout juvenile justice proceedings. However, prior studies indicate that juveniles with legal representation have been both advantaged and disadvantaged across juvenile court outcomes. Some research suggests a “lawyer penalty” where youth represented by legal counsel are punished more severely than their non-representedcounterparts.
Methods: Given the implications of these findings on both the court and life outcomes of juvenile offenders, the current study performs a meta-analysis comparing the dispositional sanctions of adjudicated juvenile offenders with counsel to those without representation.
Results: Juveniles represented by legal counsel were over two times more likely to receive an out-of-home placement compared to those without attorneys. The lawyer penalty was robust over time, across bivariate and multivariate studies, and whether individual-level or state-level data were analyzed, as having an attorney present increased the odds of a juvenile being removed from their home by over 200%.
Conclusions: Evidence of a lawyer penalty has persisted since the In re Gault decision despite an increase in sophistication of statistical analyses. The implications for juvenile court practice, the role of legal representation in juvenile court proceedings, and future research are discussed.

Jessica M. Salerno and Hannah J. Phalen – Traditional Gender Roles and Backlash Against Female Attorneys Expressing Anger in Court. Journal of Empirical Legal Studies, online first.

Trial advocacy education often stresses the importance of attorneys expressing arguments with emotion to signal conviction. Yet, female attorneys must approach this advice with caution given potential backlash for expressing emotions traditionally considered masculine, like anger. Two experiments (Study 1, N = 220; Study 2, N = 273) demonstrated that people most likely to endorse traditional gender roles exhibited bias against female attorneys expressing anger in court. Participants were recruited nationally and randomly assigned to view an attorney delivering a closing statement in court who either (1) was a man or a woman, and (2) used a neutral or angry tone. They reported how hirable and effective they perceived the attorneys to be and completed measures of several individual difference factors that are established predictors of endorsement of traditional gender roles: ambivalent sexism, political conservatism, and age. Participants who were more likely to hold traditional gender values (i.e., more benevolently sexist, more politically conservative, and older) were more likely to favor attorneys who conformed to gender norms (i.e., male attorneys who expressed anger relative to no anger) and less likely to favor attorneys who violated gender norms (i.e., female attorneys who expressed anger relative to no anger). Thus, female attorneys are faced with the challenge of walking the line between exhibiting traditionally masculine behaviors that are valued by the legal system—but not so much so that they suffer backlash for violating gender norms.

Ken Strutin – From Poverty to Personhood: Gideon Unchained. Mitchell Hamline Law Review, vol 45/1, pp. 266-318.

[From the conclusion:] “The isolated prisoner is helpless before the law without the guidance of counsel. The prisoner faces the weight of the state and the public’s condemnation, and has neither the ability nor the resources to wage a battle for freedom from inside a cell. But his attorney does. The capable attorney is equipped with legal education and training, and possesses knowledge and skills designed to aid the client in his endeavors. Thus, the attorney can accomplish feats that the client cannot. For this simple reason alone—from indictment to conviction, from jail to prison—the impoverished prisoner not only deserves to be represented, representation should be a basic, fundamental, constitutional right. Thus, Gideon must be unchained so that the innocent may go free.”

Book chapters

Jocelyn M. Pollock – Whatever Happened to Atticus Finch? Lawyers as Legal Advocates and Moral Agents, in Justice, Crime and Ethics by Michael C. Braswell, Belinda R. McCarthy, Bernard J. McCarthy (eds). 2020, Routledge, New York.

[From the chapter:] “One of the reasons for the public’s disdain for lawyers is found in the role they play vis-à-vis their clients: Are attorneys in an amoral hired-gun role or are they professionals who balance their clients’ interests against respect for the law and some objective standard of justice? This concept of the lawyer as a legal advocate (with no individual contribution of morality) versus a moral agenda (whereby the lawyer imposes a personal view of morality into his or her activities for the client) has been discussed and debated vigorously in the literature.”


Justice Management Institute – Reducing Failure to Appear at Criminal Court Arraignment: Evaluation of Contra Costa County, California “Innovative Solutions in Public Defense” – the Early Representation Program [ERP].
[Not available online. For further information see here and here.]

[From Executive Summary:] "Despite many challenges and limitations with the data available for analysis, reasonable estimates of the effects could be made, and they are remarkable on program and policy levels. Every defendant who was part of ERP was subject to significant efforts to contact them. The rate at which these ERP defendants were issued bench warrants was about half the baseline rate. Defendants who were successfully contacted were issued bench warrants only 10 percent of the time - nearly 75 percent below the baseline. As many as 25 percent of clients received legal assistance outside of traditional public defense relating to collateral consequences. Richmond ERP provided these services before the arraignment of its clients' criminal cases."