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Notable Recent Publications - June 2020

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.

Articles

Juan F. Gonz├ílez‐Bertomeu, "Different Ways of Losing: Public Defenders (and Private Counsel) at the Supreme Court of Argentina." 54/2, Law and Society Review, 354-390.
"Though most countries have established public defense systems to represent indigent defendants, this is far from implying their offices are in good shape. Indeed, significant variation likely exists in the systems' effectiveness, across societies and at the subnational level. Defense agencies' performance likely depends on their configuration, including their funding, their internal arrangements, and their selection and retention mechanisms. Centered on public defense in Argentina, this article compares the performance of public and retained counsel at the country's Supreme Court. Public defenders' offices received a boost in the last two decades, and are institutionally well positioned to square off against prosecutors, putting them at least on par with the averaged retained counsel. Using a fresh dataset of around 3000 appeal decisions from 2008 to 2013, the study largely tests representational capabilities by looking at whether counsel meets briefs' formal requirements, a subset of decisions particularly valuable to reduce potential biases. It finds that formal dismissals are significantly less frequent when a public defender is named in an appeal, particularly when a federal defender is involved. It also discusses and tests alternative mechanisms. The article's findings illuminate discussions of support structures for litigation, criminal justice reform, and criminal defendants' rights."

Elisabeth E. Moore, "Passed & Future: Critique of Michgan Indigent Defense Commission & The Successful Implementation of Their Minimum Standards." 20/1, The Journal of Law in Society, 191-213.
[From the introduction:] "This note begins with an introduction to the reforms that paved the way for the creation of the MIDC [Michigan Indigent Defense Commission]. This Note then explains the four MIDC minimum standards already passed, and the four proposed standards that are awaiting approval. Subsequent to this background, this Note analyzes two main points: first, predictions for the successful implementation of the minimums and positive results based on current indicators and the support of "key players." Following that, this Note will examine predictions about whether standards five thorugh eight will be passed - as they were recently sent to the Michigan Department of Licensing and Regulatory Affairs (LARA) - and what that process will look like."

Elizabeth Nevins-Saunders, "Judicial Drift." 57, American Criminal Law Review, 331-389. 
Although there is broad consensus on what constitutes procedural due process in criminal cases, in courtrooms around the country, those ideals are often disregarded. In the wake of rising public attention to misdemeanors, be it through marijuana decriminalization or concern over unduly punitive fees and surcharges, a few scholars have pointed to theories explaining the gulf between rights and reality for low-level defendants. Yet none have expressly considered the impact of administrative rules made (or not made) at the courthouse level. This Article analogizes the courthouse to an administrative agency and borrows the doctrine of "bureaucratic drift" to explain how Supreme Court, legislative, and ethical norms of due process get filtered through a courthouse bureaucracy that ultimately leaves poor defendants without access to basic rights. The argument draws on findings of a five-week court observation project, which documented the daily injustices-in violation of established law-that individuals charged with low-level crimes experienced as defendants in a New York court. To remedy the drift, the Article proposes the appointment of an independent due process ombuds to oversee procedural justice court-wide.

Ronald F. Wright, Jenny Roberts and Betina Cutaia Wilkinson, "The Shadow Bargainers." Forthcoming, Cardozo Law Review.
"Plea bargaining happens in almost every criminal case, yet there is little empirical study about what actually happens when prosecutors and defense lawyers negotiate. This article looks into the bargaining part of plea bargaining. It reports on the responses of over 500 public defenders who participated in our nationwide survey about their objectives and practices during plea negotiations.
"The survey responses create a rare empirical test of a major tenet of negotiation theory, the claim that attorneys bargain in the “shadow of the trial.” This is a theory that some defenders embrace and others reject. Describing the factors they believe to be important in plea negotiations, some public defenders – those who emphasize the importance of collateral consequences or the pre-trial custody of their clients – do not stress the likely outcome at trial. Instead, these attorneys focus on the wants and needs of clients, hoping to persuade the prosecutor to operate outside a trial-prediction framework. These defense attorneys might ask the prosecutor to dismiss charges, to divert the defendant out of the system, or to recommend a sentence far below the expected outcome. Such dispositions based on equitable factors, many of them related to the larger life circumstances of the defendant, point the prosecutor towards an outcome that is independent of any likely trial result or post-trial sentence. These defense attorneys, we argue, bargain in the “shadow of the client” rather than the shadow of the trial. Multivariate analysis of the survey answers allows us to identify which background factors identify the attorneys that embrace each of the distinct theories of negotiation. "After asking public defenders about their plea bargaining aspirations, our survey turns to actual negotiation practices. Here, defenders’ self-reported bargaining methods do not measure up to their declared aspirations. Their own descriptions of the fact investigations and legal research they typically perform ignore some viable outcomes that their clients might prefer. Particularly for attorneys who aim to negotiate in the shadow of the client, there is a wide gap between theory and practice"

Chapters

Jessie K. Finch and Robin Stryker. "Competing Identity Standards and Managing Identity Verification," in Identity and Symbolic Interaction, eds. Richard T. Serpe, Robin Stryker and Brian Powell
"Using courtroom observations, in-depth interviews, and third-party media accounts, we examine identity management by lawyers facing challenges to verification of prominent role and social identities implicated by participation in Operation Streamline. A controversial criminal procedure in which undocumented border crossers are processed en masse, Operation Streamline provides a strategic case for theory building integrating internal and external role and social identity processes. Relying on systematic interpretative methods to refract non-laboratory data through the conceptual lens of identity theory, we found that defense attorneys participating in Operation Streamline experienced substantial role strain, that is, felt problems in meeting role expectations, because they were torn between role-related values of substantive justice and formal legality that could not be satisfied simultaneously. However, they also perceived these two values to provide culturally available and positive but competing role identity standards to draw from as resources to deflect potential non-verification of their professional identities. Latino/a lawyers—who faced intensified professional role strain and also conflict between a role identity standard of formal legality and meanings and expectations associated with their racial/ethnic identity—perceived culturally available, competing social identity group standards based on race/ethnicity and citizenship. Faced with challenges to positive identity confirmation, attorneys pushed back against role and social identity group standards whose adoption would lead to non-verification and adopted instead the competing standards facilitating verification. Based on our findings and conceptual scope conditions pertaining to our empirical case, we propose three theoretical propositions that may link internal, perceptual control and external, social structural identity processes and can be tested in further research."

Reports

Nigel Fielding, Sabine Braun and Graham Hieke. Video Enabled Justice Evaluation. University of Surrey.
[From Executive Summary:] "Defendants in video court were less likely to have legal representation than compared to non-video hearings where police bail had been denied..... Video court reduced opportunities for informal conversations between legal professionals (e.g. 'corridor conversations') and could make communication feel disjointed..... There was a concern that appearing over the video link could make defence advocates less effective, particularly in relation to bail applications.... Video court was seen as being more impersonal and former defendants commented on the inability to vide family members say int he public gallery during their hearings."

Alissa Worden, Andrew Davies,  Reveka Shteynberg and Kirstin Morgan. Early Intervention by Counsel: A Multi-Site Evaluation of the Presence of Counsel at Defendants’ First Appearances in Court. National Institute of Justice.
"This report summarizes the objectives, methodologies, and findings of an evaluation of six upstate New York counties’ attempts to ensure that defendants were provided legal counsel at arraignment. These initiatives, funded by state grants to indigent defense providers, addressed the need for counsel outside urban areas, in jurisidictions that presented programs with practical, administrative, political, and geographic challenges to implementing CAFA. The evaluation addressed three research questions. First, how effectively did administrators implement CAFA programs? ... Second, did the adoption of CAFA produce the predicted impacts on judges’ pretrial decisions and case outcomes? .... Third, what if any effects did CAFA have on features of the criminal process itself: the duration of cases to disposition, and aggregate impact on pretrial detention costscosts of providing lawyers to defendants?"

Theses

Duhart Clarke, Sarah Elizabeth, Predictive Validity of the Public Safety Assessment for Indigent Defendants. M.A. thesis, Psychology, North Carolina State University.
[From the Abstract:] "The purpose of the current study was to examine the performance of Public Safety Assessment (PSA) (VanNostrand & Lowenkamp, 2013) scores among indigent defendants, with the specific aims of: 1) Determining the predictive validity of the results of the PSA within a sample of indigent defendants; and 2) Determining whether the PSA scores demonstrate predictive bias against indigent defendants.... With respect to Aim 1, results indicated that the PSA had “fair” to “good” predictive validity among a subsample of indigent defendants. With respect to Aim 2, analyses did not show predictive bias for any of the PSA subscales as a function of indigent status."

Caroline Boylan Analysis of Criminal Court Case Outcomes Among Indigent Defendants in McLennan County, Texas. Honors thesis, Economics, Baylor University.
"The indigent defense system in the United States has been criticized for its unfair treatment of criminal defendants below a certain poverty level. This thesis employs statistical methods to analyze whether or not indigent defendants in McLennan County are dealt worse consequences than defendants who can afford to hire an attorney. I utilize ordinary least squares and logistic regressions in order to analyze the effect of various variables on sentence length, conviction rates, and the likelihood of a plea agreement. I specifically analyze the effect of indigence on these outcome variables. I also conduct a regression discontinuity design to explore whether defendants on either side of the indigence cutoff face longer sentence lengths and more convictions. My results indicate that indigent defendants may in fact encounter worse outcomes than non-indigent defendants, showing that our indigent defense system may be in need of some substantial change."

Presentations

Abenaa Owusu-Bempah, Understanding the Barriers to Defendant Participation in Criminal Proceedings. All Souls Seminar Series, Oxford, UK.

Stephen Goldmeier, COVID-19 and Justice Systems II: Youth support, safety, and accountability. Forthcoming June 3, 2020, 1-3pm ET.
[From the website:] "Organized by the NYS Youth Justice Institute, this series of web-based panel discussions will explore the pandemic’s current and foreseeable impacts on children, teens, and young adults, as well as innovative approaches to the present crisis. Each panel will focus on a key environment affected by the pandemic and relevant to justice-involved youth: their homes, schools, communities, justice systems, as well as detention and placement settings. Experts from diverse fields will examine these issues while centering on the disparate impacts of COVID-19 on historically marginalized populations. Join us in reimagining a more equitable, compassionate, and empirically-driven youth justice system."

Announcements

Deason Center receives $26K grant from Texas Bar Foundation
[From the press release:] "The Deason Criminal Justice Reform Center at SMU Dedman School of Law was awarded a $26,890 grant from the Texas Bar Foundation to fund research to improve access to counsel for impoverished defendants in rural Texas... Through the funding of this project, the Deason Center will:
  • look at changes in rates of appointment of counsel within counties over time, and assess whether use of a MAC or a defender office caused those rates to change; 
  • conduct a qualitative investigation of how rural areas provide counsel to indigent defendants; and 
  • interview justice-system officials in strategically selected counties, asking them about challenges they face in supplying indigent defense services."