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Notable Recent Publications - May, 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


Derwyn Bunton, "Rising from Katrina’s Ashes but Still in Crisis: Public Defense in New Orleans." 32(1), New England Journal of Public Policy, 11 pp. 
"New Orleans’ nickname “Big Easy” was based on the “anything goes” perception of the city. Feeding this perception was a sense of lawlessness, that New Orleans was a place where the rules changed depending on who you were and who you knew. So when Hurricane Katrina hit the city in August 2005 and tossed everything around—flooding mansions and missions, damaging the Superdome and supermarkets—the storm challenged old perceptions and presented unique challenges. Katrina made at least one thing clear: New Orleans could no longer wait for change, pretend nothing happened, or look back. The city’s survival depended on its ability to move forward.
"One of the greatest challenges to New Orleans’ ability to move forward was its criminal legal system, especially the public defense system. For decades before Katrina, the public defense system in New Orleans—like others throughout Louisiana—was “plagued by negligent attorneys who provide[d] haphazard and deficient representation.” Orleans Parish Prison, for example, was packed with more than six thousand people, most of whom had no representation once Katrina hit. Fragile and underfunded, the New Orleans public defense system lacked the ability to even try to respond to the crisis of Katrina. All but four staff members were terminated immediately after the storm. Like most social institutions in New Orleans, however, public defense in New Orleans had been targeted for reform multiple times before Katrina, with few positive results."

H. Fernandez Lynch, D. J. Greiner, I. G. Cohen, "Overcoming obstacles to experiments in legal practice." 367(6482), Science
"The importance of evidence-based policy rooted in experimental methods is increasingly recognized, from the Oregon Medicaid experiment to the efforts to address global poverty that were awarded a 2019 Nobel Prize. Over the past several decades, there have been attempts to extend this scientific approach to legal systems and practice. Yet, despite progress in empirical legal studies and experimental social policy research, judges, lawyers, and legal services providers often fail to subject their own practices to empirical study or to be guided by empirical data, with a particular aversion to randomized controlled trials (RCTs) (1). This is troubling, as many questions fundamental to legal practice and those it affects, such as allocation of attorney services, bail decisions, and use of mandatory mediation, could and should be informed by a rigorous evidentiary foundation. Although there are practical obstacles to undertaking legal practice RCTs, they have also been stymied by cultural barriers within the legal profession. Whereas medical practitioners are expected to subject their practices to randomized study and rely on the data produced, the default in legal practice is to rely on experience, common wisdom, and professional judgment, often in settings in which clients face constraints on their freedom. To address ethical concerns stemming from this cultural difference, we draw on lessons from biomedical and policy research, as well as experiences of the Access to Justice Lab (A2JL), a leading institution promoting the use of RCTs to inform legal practice."  

Michael L. Perlin, Talia Roitberg Harmon, and Sarah Chatt, '“A World of Steel-Eyed Death”: An Empirical Evaluation of the Failure of the Strickland Standard to Ensure Adequate Counsel to Failure of the Strickland Standard to Ensure Adequate Counsel to Defendants with Mental Disabilities Facing the Death Penalty Defendants with Mental Disabilities Facing the Death Penalty.' Vol. 53, University of Michigan Journal of Law Reform
[From the Introduction:] "[T]o the best of our knowledge, no one has—prior to this Article—undertaken an extensive empirical analysis of how one discrete U.S. federal circuit court of appeals has dealt with a wide array of Strickland-claim cases in cases involving defendants with mental disabilities. We do this here. In this Article, we reexamine these issues from the perspective of the 198 cases decided in the Fifth Circuit from 1984 to 2017 involving death penalty verdicts in state prosecutions in which, at some stage of the appellate process, a Strickland claim was made. As we demonstrate subsequently, Strickland is indeed a pallid standard, fostering “tolerance of abysmal lawyering,” and is one that makes a mockery of the most vital of constitutional law protections: the right to adequate counsel."

Siyu Liu and Esther Nir, "Do the Means Matter? Defense Attorneys’ Perceptions of Procedural Transgressions by Police and Their Implication on Police Legitimacy." Criminal Justice Policy Review.
"Through interviews (n = 40) and surveys (n = 140) with separate samples of U.S. defense attorneys practicing criminal law in a Northeastern state, we utilize a mixed-methods approach to explore police procedural transgressions (e.g., pretextual stops, overreaching searches) during stops, searches, and seizures. With a structural equation path model, we examine whether and how procedural justice (an assessment of “the means” to control crime) and police effectiveness (an assessment of police performance or “the ends”) affect each other and influence perceptions of police legitimacy. Our findings indicate that procedural justice enhances perceptions of police legitimacy, whereas police effectiveness does not have an effect. Policy implications for developing mechanisms that discourage procedural transgressions by police are discussed."


Jack Cutrone, ed. Rosalie Joy. Accessing Federal Grants, Foundation Funds, and Other Supplemental Resources: A Toolkit for Public Defenders. National Criminal Justice Association and National Legal Aid and Defender Association.
"This guide offers step-by-step help in planning to take on a capacity building project, searching for funding and non-cash sources, applying for grants, and managing them. The guide is divided into four sections for quick access to information you need: (1) Plan the project, (2)Research funding options, (3) Apply for funding, (4) Manage the project. Emphasis in this resource guide is on searching and applying for grants awarded by the federal government. However, much of the guidance provided is applicable to other funding agencies, both public and private. Other funding sources covered include state and local governments, local sources of cash and non-cash support through connections with colleges and universities, faith-based organizations, and other types of community support. There are countless entities that offer opportunities to access supplemental capacity-building resources, and you will find references in this guide to just a sampling."

Irene Oritseweyinmi Joe & Ben Miller, When Every Sentence is a Possible Death Sentence: Public Defenders Speak From the Front Lines About COVID-19. The Justice Collaborative. 
[From the Executive Summary:] "The Justice Collaborative Institute asked nearly 200 public defenders from across the country how the COVID-19 pandemic has impacted their work and personal lives. The responses are revealing: 85% believed their work as a public defender placed them or their families at risk of developing COVID-19; 84% did not think their local court system was doing enough to protect the health of their clients; 96% said that COVID-19 has impacted their ability to effectively communicate with their clients; and 48%, as of April 2, 2020, reported that they had a client incarcerated at a facility where there has been an identified case of COVID-19. Their concerns went beyond the spread of disease. Public defenders expressed anger over the perceived lack of empathy for their clients’ health, frustration with the many officials who treat their clients’ rights as disposable, and mental distress over the impact the virus is having on their clients, their loved ones, and themselves. Taken together, their responses form a powerful argument in support of policies, also popular among voters, to dramatically and urgently reduce jail and prison populations in response to the coronavirus."

Jessica Smith and Jamie C. Vaske, North Carolina Judicial District 30B Pretrial Pilot Project, Final Report. Part I: Background, Process & Implemented Reform (Jessica Smith); Part II: Evaluation Report (Jamie V. Vaske); Factsheet.
[From Part II, Evaluation Report, page 18:] "Overall, the data shows that non-48 hour defendants who are represented by an attorney are 1.37 times more likely to have their bonds modified and 1.52 times more likely to have their bonds reduced, compared to defendants who are not represented by defense counsel at the first appearance hearing."