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.
"The study we present in this Article demonstrates that the core support for retribution’s use has been shaken by implicit racial bias. Our national empirical study, conducted with over 500 jury-eligible citizens, shows that race cannot be separated from the concept of retribution itself. The study finds, for example, that Americans automatically associate the concepts of payback and retribution with Black and the concepts of mercy and leniency with White. Furthermore, the study showed that the level of a person’s retribution-race implicit bias predicted how much they supported retribution as a desirable punishment rationale — the stronger the anti-Black implicit racial bias they held, the more likely they were to harbor retributivist views of criminal punishment."
Kristian Lum, Chesa Boudin and Megan Price. The Impact of Overbooking on a Pre-Trial Risk Assessment Tool. Proceedings of FAT*2020: The ACM Conference on Fairness, Accountability, and Transparency.
"Pre-trial risk assessment tools are used to make recommendations to judges about appropriate conditions of pre-trial supervision for people who have been arrested. Increasingly, there is concern about whether these models are operating fairly, including concerns about whether the models’ input factors are fair measures of one’s criminal activity. In this paper, we assess the impact of booking charges that do not result in a conviction on a popular risk assessment tool, the Arnold Public Safety Assessment. Using data from a pilot run of the tool in San Francisco, CA, we find that booking charges that do not result in a conviction (i.e. charges that are dropped or end in an acquittal) increased the recommended level of pre-trial supervision in around 27% of cases evaluated by the tool."
Samantha Luna and Allison Redlich. The decision to provide discovery: an examination of policies and guilty pleas. Journal of Experimental Criminology.
"...Open-file discovery policy...is the leading reform to address the withholding of exculpatory evidence. A US Supreme Court decision, however, ruled prosecutors do not have to turn over...impeachment evidence in the context of guilty pleas (U.S. v. Ruiz, 2002). The present study investigated the impact of two discovery policies (open-file (OF) and the Ruiz Supreme Court decision (SC)).... Participants playing the role of prosecutor were randomly assigned to one of four conditions (neither OF or SC, only OF, only SC, both OF and SC) and....had the opportunity to withhold four potentially exculpatory items.... Participants in the OF conditions turned over significantly more discovery and significantly more exculpatory items than those not in the OF conditions. Conversely, participants in the SC conditions turned over significantly less discovery and significantly fewer exculpatory items than those not in the SC conditions, regardless of their decision to offer a plea or go to trial."
Raymond Valerio. Likelihood ratios for lawyers…I didn't go to law school for this! WIREs Forensic Science, 4pp.
"With the proliferation of probabilistic genotyping software in forensic DNA analysis, prosecutors are faced with the challenge of understanding complex statistical conclusions and their corresponding meanings. Unlike many scientists, lawyers rarely learn statistics in college or law school; statistics are neither a subject on state bar examinations nor a topic in any core continuing legal education course. Therefore, when faced with complicated DNA comparison statistics, prosecutors may unknowingly present misleading—or even incorrect—arguments to the fact finder. In this primer, I explain how to fairly argue probabilistic genotyping statistics in forensic DNA analysis."
"A groundbreaking new study by a team of researchers from the RAND Corporation and the University of Pennsylvania Law School (Penn Law) examines an innovative and promising approach to defending poor clients in criminal cases: holistic defense. This study, summarized here, is the first large-scale empirical evaluation of the impact of holistic representation on criminal justice outcomes, and it marks an important contribution to the nascent body of literature on effective approaches in indigent defense."
Noy Davis with Amy Harfeld and Elisa Weichtel. A Child's Right to Counsel, Fourth Edition. U San Diego School of Law and First Star Institute.
"Twelve years ago, First Star published the first edition of A Child ’s Right to Counsel, evaluating state laws relating to the legal representation of children in civil child abuse and neglect proceedings. Since then, as this report shows, state grades have steadily increased with 31 states showing improvement between 2009 and 2018. Currently, a record 19 states are now “A” states. Unfortunately, 11 states have statutes that fall far short of providing these children with quality legal representation. High quality representation has been associated with better outcomes and shorter times in care for children in dependency cases. Five states received an “F” and six received a “D” in the current edition."
Janne E. Gaub, Carolyn Naoroz & Aili Malm. Understanding the Impact of Police Body-Worn Cameras on Virginia Public Defenders. A Report Submitted to the Virginia Indigent Defense Commission. UNC Charlotte.
"To better understand how a local police department’s decision to implement BWCs [Body-Worn Cameras] impacts public defenders, the research team worked with the Virginia Indigent Defense Commission (VIDC) to track attorney time spent on BWC-related tasks and conduct focus groups to understand attorneys’ perceptions of the utility of BWCs for public defenders."
Genevieve Citrin Ray. Enhancing Caseflow Management to Ensure Effective Assistance of Counsel. Justice Programs Office, School of Public Affairs, American University.
[From the Foreword:] "To explore the tension between caseflow management and ensuring the constitutional right to counsel, JPO, in partnership with R2C consortium member, the National Association for Court Management (NACM), held a day and a half long meeting with practitioners to take a closer look at court practices that may prevent, resolve, or mitigate this tension and to develop strategies to implement that enhance caseflow management to effective assistance of counsel..... Attendees included subject-matter experts in the areas of right to counsel, caseflow management, and court governance, and seven judge-court administrator pairs.... The meeting findings have been incorporated into this white paper, which serves as a management document for courts, outlining the issue, summarizing the meeting, and sharing practical action items that judges and court administrators can take into their jurisdictions to ease the tension between caseflow management and ensuring the constitutional right to counsel.”
[From the study abstract:] "To examine the digital turn in public criminal defense, I conducted an ethnographic study of a public defender office and its in-house, digital forensics laboratory. The goal was to understand how digital evidence is shaping criminal case processing, especially defense work, and the relationship between public defenders and their indigent clients. I developed an original framework called the “life cycle.” This framework makes an important contribution to socio-legal studies and scholarship in the area of communication and technology by presenting a process-oriented approach that allows scholars and legal practitioners to understand how different moments in the life of a case unfold in the digital turn. Using the life cycle approach, I trace the life of digital evidence in public criminal defense, from the evidence’s arrival in the public defender office to its eventual application during hearings, plea negotiations, and trials. Throughout the analysis,I highlight the challenges and opportunities public defenders experience in the digital turn."
Articles
Justin D. Levinson, Robert J. Smith, Koichi Hioki. Race and Retribution: An Empirical Study of Implicit Bias and Punishment in America. Vol 53, U. C. Davis Law Review, pp. 839-891."The study we present in this Article demonstrates that the core support for retribution’s use has been shaken by implicit racial bias. Our national empirical study, conducted with over 500 jury-eligible citizens, shows that race cannot be separated from the concept of retribution itself. The study finds, for example, that Americans automatically associate the concepts of payback and retribution with Black and the concepts of mercy and leniency with White. Furthermore, the study showed that the level of a person’s retribution-race implicit bias predicted how much they supported retribution as a desirable punishment rationale — the stronger the anti-Black implicit racial bias they held, the more likely they were to harbor retributivist views of criminal punishment."
Kristian Lum, Chesa Boudin and Megan Price. The Impact of Overbooking on a Pre-Trial Risk Assessment Tool. Proceedings of FAT*2020: The ACM Conference on Fairness, Accountability, and Transparency.
"Pre-trial risk assessment tools are used to make recommendations to judges about appropriate conditions of pre-trial supervision for people who have been arrested. Increasingly, there is concern about whether these models are operating fairly, including concerns about whether the models’ input factors are fair measures of one’s criminal activity. In this paper, we assess the impact of booking charges that do not result in a conviction on a popular risk assessment tool, the Arnold Public Safety Assessment. Using data from a pilot run of the tool in San Francisco, CA, we find that booking charges that do not result in a conviction (i.e. charges that are dropped or end in an acquittal) increased the recommended level of pre-trial supervision in around 27% of cases evaluated by the tool."
Samantha Luna and Allison Redlich. The decision to provide discovery: an examination of policies and guilty pleas. Journal of Experimental Criminology.
"...Open-file discovery policy...is the leading reform to address the withholding of exculpatory evidence. A US Supreme Court decision, however, ruled prosecutors do not have to turn over...impeachment evidence in the context of guilty pleas (U.S. v. Ruiz, 2002). The present study investigated the impact of two discovery policies (open-file (OF) and the Ruiz Supreme Court decision (SC)).... Participants playing the role of prosecutor were randomly assigned to one of four conditions (neither OF or SC, only OF, only SC, both OF and SC) and....had the opportunity to withhold four potentially exculpatory items.... Participants in the OF conditions turned over significantly more discovery and significantly more exculpatory items than those not in the OF conditions. Conversely, participants in the SC conditions turned over significantly less discovery and significantly fewer exculpatory items than those not in the SC conditions, regardless of their decision to offer a plea or go to trial."
Raymond Valerio. Likelihood ratios for lawyers…I didn't go to law school for this! WIREs Forensic Science, 4pp.
"With the proliferation of probabilistic genotyping software in forensic DNA analysis, prosecutors are faced with the challenge of understanding complex statistical conclusions and their corresponding meanings. Unlike many scientists, lawyers rarely learn statistics in college or law school; statistics are neither a subject on state bar examinations nor a topic in any core continuing legal education course. Therefore, when faced with complicated DNA comparison statistics, prosecutors may unknowingly present misleading—or even incorrect—arguments to the fact finder. In this primer, I explain how to fairly argue probabilistic genotyping statistics in forensic DNA analysis."
Reports
James M. Anderson, Maya Buenaventura, Paul Heaton. Holistic Representation. An Innovative Approach to Defending Poor Clients Can Reduce Incarceration and Save Taxpayer Dollars — Without Harm to Public Safety. RAND Research Briefs."A groundbreaking new study by a team of researchers from the RAND Corporation and the University of Pennsylvania Law School (Penn Law) examines an innovative and promising approach to defending poor clients in criminal cases: holistic defense. This study, summarized here, is the first large-scale empirical evaluation of the impact of holistic representation on criminal justice outcomes, and it marks an important contribution to the nascent body of literature on effective approaches in indigent defense."
Noy Davis with Amy Harfeld and Elisa Weichtel. A Child's Right to Counsel, Fourth Edition. U San Diego School of Law and First Star Institute.
"Twelve years ago, First Star published the first edition of A Child ’s Right to Counsel, evaluating state laws relating to the legal representation of children in civil child abuse and neglect proceedings. Since then, as this report shows, state grades have steadily increased with 31 states showing improvement between 2009 and 2018. Currently, a record 19 states are now “A” states. Unfortunately, 11 states have statutes that fall far short of providing these children with quality legal representation. High quality representation has been associated with better outcomes and shorter times in care for children in dependency cases. Five states received an “F” and six received a “D” in the current edition."
Janne E. Gaub, Carolyn Naoroz & Aili Malm. Understanding the Impact of Police Body-Worn Cameras on Virginia Public Defenders. A Report Submitted to the Virginia Indigent Defense Commission. UNC Charlotte.
"To better understand how a local police department’s decision to implement BWCs [Body-Worn Cameras] impacts public defenders, the research team worked with the Virginia Indigent Defense Commission (VIDC) to track attorney time spent on BWC-related tasks and conduct focus groups to understand attorneys’ perceptions of the utility of BWCs for public defenders."
Genevieve Citrin Ray. Enhancing Caseflow Management to Ensure Effective Assistance of Counsel. Justice Programs Office, School of Public Affairs, American University.
[From the Foreword:] "To explore the tension between caseflow management and ensuring the constitutional right to counsel, JPO, in partnership with R2C consortium member, the National Association for Court Management (NACM), held a day and a half long meeting with practitioners to take a closer look at court practices that may prevent, resolve, or mitigate this tension and to develop strategies to implement that enhance caseflow management to effective assistance of counsel..... Attendees included subject-matter experts in the areas of right to counsel, caseflow management, and court governance, and seven judge-court administrator pairs.... The meeting findings have been incorporated into this white paper, which serves as a management document for courts, outlining the issue, summarizing the meeting, and sharing practical action items that judges and court administrators can take into their jurisdictions to ease the tension between caseflow management and ensuring the constitutional right to counsel.”
Dissertations
Fanny Anne Ramirez. The Digital Turn in Public Defense. Rutgers Graduate Program in Communication, Information and Media.[From the study abstract:] "To examine the digital turn in public criminal defense, I conducted an ethnographic study of a public defender office and its in-house, digital forensics laboratory. The goal was to understand how digital evidence is shaping criminal case processing, especially defense work, and the relationship between public defenders and their indigent clients. I developed an original framework called the “life cycle.” This framework makes an important contribution to socio-legal studies and scholarship in the area of communication and technology by presenting a process-oriented approach that allows scholars and legal practitioners to understand how different moments in the life of a case unfold in the digital turn. Using the life cycle approach, I trace the life of digital evidence in public criminal defense, from the evidence’s arrival in the public defender office to its eventual application during hearings, plea negotiations, and trials. Throughout the analysis,I highlight the challenges and opportunities public defenders experience in the digital turn."