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.
[From the website:] "[T]he modern American public defender has a surprisingly contentious history--one that offers insights not only about the "carceral state," but also about the contours and compromises of twentieth-century liberalism... First gaining appeal amidst the Progressive Era fervor for court reform, the public defender idea was swiftly quashed by elite corporate lawyers who believed the legal profession should remain independent from the state... Gideon v. Wainwright enshrined the right to counsel into law and the legal profession mobilized to expand the ranks of public defenders nationwide. Yet within a few years, lawyers had already diagnosed a "crisis" of underfunded, overworked defenders providing inadequate representation--a crisis that persists today. This book shows how these conditions, often attributed to recent fiscal emergencies, have deep roots, and it chronicles the intertwined histories of constitutional doctrine, big philanthropy, professional in-fighting, and Cold War culture that made public defenders ubiquitous but embattled figures in American courtrooms."
Also check out this review of the book in Washington Monthly.
"We present a qualitative analysis, employing semi-structured interviews and grounded theory, on the perceptions of defense attorneys regarding their roles and duties in contexts involving quasi-coercive offers of biological interventions, such as medication-assisted treatment therapies for opiate dependence or chemical castration, as rehabilitative strategies in sentencing. Data are from interviews with a sample of Canadian defense attorneys. We focus our analysis on defense attorneys’ views of their roles and duties as an attorney in contexts involving the decision to consent to biological interventions in the hope of securing favorable sentences, as well as their perceptions and concerns regarding their clients’ interests in these contexts. Our analysis appears to indicate that the classical model of the role and duties of defense lawyers can accommodate the increased use of biological therapies for criminal rehabilitation, and we ultimately discuss broader implications of biological treatments as rehabilitative strategies for the criminal justice system."
Michael Conklin, "How Do You Plead, and Why? How Attorney Experience and Defendant Background Affect Plea Bargaining." Ohio State Journal of Criminal Law.
"This essay describes the results of a first-of-its-kind study designed to analyze how a legal counsel’s level of experience affects willingness to accept a plea offer. Furthermore, the variables of participant race, gender, and political affiliation—which are largely ignored in plea bargain research—are analyzed to provide a more robust understanding of defendants’ decision making. Potential explanations for demographic disparities in plea bargain responses, such as level of trust in the legal system, are also evaluated."
Jacqueline G. Lee, Chae M. Jaynes and John Ropp, "Satisfaction, Legitimacy, and Guilty Pleas: How Perceptions and Attorneys Affect Defendant Decision-Making." Justice Quarterly.
"Though almost all convictions are the result of guilty pleas, little research has examined influences on defendant plea decisions. First, we explore how attorney satisfaction and court legitimacy affect defendant choices. Using an experimental approach, we then assess the impact of a defense attorney’s evaluation of a plea offer on the defendant’s willingness to accept a plea, and whether this is moderated by defendants’ individual views. Findings demonstrate that higher attorney satisfaction and higher court legitimacy are associated with higher willingness to accept a plea. Defendant decision-making is also impacted by their attorney’s evaluation of the plea and this influence is moderated by the defendant’s satisfaction with their representation. In line with previous research, we also find differences across guilt indicating that guilty and innocent defendants may have different decision-making processes. Results suggest that guilty plea research should continue to evolve with increased attention to the defendant and their counsel."
Cynthia S. Leon and Corey S. Shdaimah, "'We'll Take the Tough Ones': Expertise in Problem-Solving Justice." New Criminal Law Review.
"...We use professional stakeholder interview data (N = 45) from our studies of three emerging and existing prostitution diversion programs as a case study to illustrate how criminal justice actors use what we define as primary, secondary, and tertiary expertise in multi-agency working groups. Actors make use of the tools at their disposal—in this case, the concept of trauma—to further personal and professional goals. As our case study demonstrates, professionals in specialized diversion programs recognize the inadequacy of criminal justice systems and believe that women who sell sex do so as a response to past harms and a lack of social, emotional, and material resources to cope with their trauma. Trauma shapes the kinds of interventions and expertise that are marshalled in response. Specialized programs create seepage that may reduce solely punitive responses and pave the way for better services. However empathetic, they do nothing to address the societal forces that are the root causes of harm and resultant trauma. This may have more to do with imagined capacities than with the objectively best approaches."
Perlin, Michael L. and Roitberg Harmon, Talia and Wetzel, Sarah, 'Man is Opposed to Fair Play': An Empirical Analysis of How the Fifth Circuit Has Failed to Take Seriously Atkins v. Virginia SSRN, (July 25, 2020).
[From the abstract:] "In this paper, we seek to answer this question: to what extent has the Fifth Circuit given meaningful life to Atkins and its progeny? Our research reveals that, in the universe of 70 “Atkins cases” (that is, cases in the Fifth Circuit in which colorable Atkins-based arguments had been raised by defendants on habeas corpus applications), in only nine cases (12%) was any actual and meaningful relief granted to defendants...if every one of the defendants in pending cases is successful (an outcome that, based on the Fifth Circuit’s global track record, is certainly not likely), that will mean that Atkins’ claims were successful in just 24% of all cases. Our findings also revealed...preliminary relief was [more often] granted in those cases in which defendants were able to rebut allegations that they were “malingering,” in which effort to raise the so-called “Flynn effect” were prevalent, and in which the WAIS IQ test was relied upon..."
Stephen Phillippi, Jeffrey Berman, Casey L. Thomas, Kaylin Beiter, Ariel Test, "Youth and Parental Perceptions of a Holistic Juvenile Public Defense Model", Youth Justice.
"This study examines client and parent/guardian perceptions of holistic juvenile public defense. A total of 66 subjects responded to a structured survey measuring satisfaction with holistic representation. Differences between perceptions were analyzed using paired T-tests and the Pearson’s correlation coefficient was used to analyze strength of association and interrelationships among variables and satisfaction. Qualitative data were collected through open-ended survey questions. The findings of this study indicate that holistic defense was perceived positively as measured by high client satisfaction. Further empirical research is necessary to evaluate the outcomes of holistic models and offer comparison to traditional models."
"The Indiana Public Defender Commission initiated a survey to investigate the overhead costs required to support a single, full-time attorney practicing public defense in Indiana. Responses representing costs associated with overhead for 204 attorneys were evaluated in this sample. The median overhead-per-attorney in this sample was $54,455. After accounting for the median overhead amount, this median compensation leaves only $10,322 in yearly compensation for the attorney, or about $5.16 per hour, based on a 40-hour work week."
The Indiana Project: An Analysis of the Indiana Public Defense System and Attorney Workload Standards. American Bar Association Standing Committee on Legal Aid and Indigent Defendants.
[From the Executive Summary:] "The American Bar Association Standing Committee on Legal Aid and Indigent Defendants (“ABA SCLAID”) and Crowe LLP (“Crowe”) worked collaboratively to conduct an analysis of public defense workload standards on behalf of the Indiana Public Defender Commission (the “Commission”). The analysis consisted of two main phases: (1) the application of the Delphi Method as a survey process to identify how much time an attorney should spend, on average, in providing representation in certain types of cases to provide reasonably effective assistance of counsel pursuant to prevailing professional norms; and (2) an analysis of the historical caseloads for public defense in Indiana....Due to the lack of complete and reliable data in the state, it is not possible to determine the number of full time equivalent (FTE) public defenders during the study period. As a result, it is not possible to complete an analysis to determine whether public defense staffing in Indiana is adequate or deficient and, if deficient, the extent of that deficiency."
[From the blog:] "Texas A&M University’s Public Policy Research Institute (PPRI) and the Access to Justice Lab at Harvard Law School (A2J Lab) are launching a randomized study of counsel at first appearance (CAFA) in Texas—the first study of its kind. At first appearance, magistrates decide whether a person will be released while awaiting trial or held in jail. Yet only 4 of 254 Texas counties provide lawyers at this important stage. This week, the research team launches the evaluation in Hays County. Previously, counsel was typically assigned after first appearance. Going forward, the Texas Indigent Defense Commission (TIDC) will provide the funding for counsel to be present at magistration some of the time to evaluate the effect of provision of counsel. The study will randomize days on which counsel is present for a first appearance. Eligible study participants will participate in brief interviews with study attorneys before being represented."
Books
Sara Mayeux, Free Justice: A History of the Public Defender in Twentieth Century America. University of North Carolina Press.[From the website:] "[T]he modern American public defender has a surprisingly contentious history--one that offers insights not only about the "carceral state," but also about the contours and compromises of twentieth-century liberalism... First gaining appeal amidst the Progressive Era fervor for court reform, the public defender idea was swiftly quashed by elite corporate lawyers who believed the legal profession should remain independent from the state... Gideon v. Wainwright enshrined the right to counsel into law and the legal profession mobilized to expand the ranks of public defenders nationwide. Yet within a few years, lawyers had already diagnosed a "crisis" of underfunded, overworked defenders providing inadequate representation--a crisis that persists today. This book shows how these conditions, often attributed to recent fiscal emergencies, have deep roots, and it chronicles the intertwined histories of constitutional doctrine, big philanthropy, professional in-fighting, and Cold War culture that made public defenders ubiquitous but embattled figures in American courtrooms."
Also check out this review of the book in Washington Monthly.
Articles
Colleen M. Berryessa & Jennifer A. Chandler (2020), "The role of the defense attorney in relation to biological interventions as rehabilitative strategies" Journal of Offender Rehabilitation."We present a qualitative analysis, employing semi-structured interviews and grounded theory, on the perceptions of defense attorneys regarding their roles and duties in contexts involving quasi-coercive offers of biological interventions, such as medication-assisted treatment therapies for opiate dependence or chemical castration, as rehabilitative strategies in sentencing. Data are from interviews with a sample of Canadian defense attorneys. We focus our analysis on defense attorneys’ views of their roles and duties as an attorney in contexts involving the decision to consent to biological interventions in the hope of securing favorable sentences, as well as their perceptions and concerns regarding their clients’ interests in these contexts. Our analysis appears to indicate that the classical model of the role and duties of defense lawyers can accommodate the increased use of biological therapies for criminal rehabilitation, and we ultimately discuss broader implications of biological treatments as rehabilitative strategies for the criminal justice system."
Michael Conklin, "How Do You Plead, and Why? How Attorney Experience and Defendant Background Affect Plea Bargaining." Ohio State Journal of Criminal Law.
"This essay describes the results of a first-of-its-kind study designed to analyze how a legal counsel’s level of experience affects willingness to accept a plea offer. Furthermore, the variables of participant race, gender, and political affiliation—which are largely ignored in plea bargain research—are analyzed to provide a more robust understanding of defendants’ decision making. Potential explanations for demographic disparities in plea bargain responses, such as level of trust in the legal system, are also evaluated."
Jacqueline G. Lee, Chae M. Jaynes and John Ropp, "Satisfaction, Legitimacy, and Guilty Pleas: How Perceptions and Attorneys Affect Defendant Decision-Making." Justice Quarterly.
"Though almost all convictions are the result of guilty pleas, little research has examined influences on defendant plea decisions. First, we explore how attorney satisfaction and court legitimacy affect defendant choices. Using an experimental approach, we then assess the impact of a defense attorney’s evaluation of a plea offer on the defendant’s willingness to accept a plea, and whether this is moderated by defendants’ individual views. Findings demonstrate that higher attorney satisfaction and higher court legitimacy are associated with higher willingness to accept a plea. Defendant decision-making is also impacted by their attorney’s evaluation of the plea and this influence is moderated by the defendant’s satisfaction with their representation. In line with previous research, we also find differences across guilt indicating that guilty and innocent defendants may have different decision-making processes. Results suggest that guilty plea research should continue to evolve with increased attention to the defendant and their counsel."
Cynthia S. Leon and Corey S. Shdaimah, "'We'll Take the Tough Ones': Expertise in Problem-Solving Justice." New Criminal Law Review.
"...We use professional stakeholder interview data (N = 45) from our studies of three emerging and existing prostitution diversion programs as a case study to illustrate how criminal justice actors use what we define as primary, secondary, and tertiary expertise in multi-agency working groups. Actors make use of the tools at their disposal—in this case, the concept of trauma—to further personal and professional goals. As our case study demonstrates, professionals in specialized diversion programs recognize the inadequacy of criminal justice systems and believe that women who sell sex do so as a response to past harms and a lack of social, emotional, and material resources to cope with their trauma. Trauma shapes the kinds of interventions and expertise that are marshalled in response. Specialized programs create seepage that may reduce solely punitive responses and pave the way for better services. However empathetic, they do nothing to address the societal forces that are the root causes of harm and resultant trauma. This may have more to do with imagined capacities than with the objectively best approaches."
Perlin, Michael L. and Roitberg Harmon, Talia and Wetzel, Sarah, 'Man is Opposed to Fair Play': An Empirical Analysis of How the Fifth Circuit Has Failed to Take Seriously Atkins v. Virginia SSRN, (July 25, 2020).
[From the abstract:] "In this paper, we seek to answer this question: to what extent has the Fifth Circuit given meaningful life to Atkins and its progeny? Our research reveals that, in the universe of 70 “Atkins cases” (that is, cases in the Fifth Circuit in which colorable Atkins-based arguments had been raised by defendants on habeas corpus applications), in only nine cases (12%) was any actual and meaningful relief granted to defendants...if every one of the defendants in pending cases is successful (an outcome that, based on the Fifth Circuit’s global track record, is certainly not likely), that will mean that Atkins’ claims were successful in just 24% of all cases. Our findings also revealed...preliminary relief was [more often] granted in those cases in which defendants were able to rebut allegations that they were “malingering,” in which effort to raise the so-called “Flynn effect” were prevalent, and in which the WAIS IQ test was relied upon..."
Stephen Phillippi, Jeffrey Berman, Casey L. Thomas, Kaylin Beiter, Ariel Test, "Youth and Parental Perceptions of a Holistic Juvenile Public Defense Model", Youth Justice.
"This study examines client and parent/guardian perceptions of holistic juvenile public defense. A total of 66 subjects responded to a structured survey measuring satisfaction with holistic representation. Differences between perceptions were analyzed using paired T-tests and the Pearson’s correlation coefficient was used to analyze strength of association and interrelationships among variables and satisfaction. Qualitative data were collected through open-ended survey questions. The findings of this study indicate that holistic defense was perceived positively as measured by high client satisfaction. Further empirical research is necessary to evaluate the outcomes of holistic models and offer comparison to traditional models."
Reports
Torrin Liddell, Indiana Public Defense Overhead Costs: Statewide Survey and Findings. Indiana Public Defender Commission."The Indiana Public Defender Commission initiated a survey to investigate the overhead costs required to support a single, full-time attorney practicing public defense in Indiana. Responses representing costs associated with overhead for 204 attorneys were evaluated in this sample. The median overhead-per-attorney in this sample was $54,455. After accounting for the median overhead amount, this median compensation leaves only $10,322 in yearly compensation for the attorney, or about $5.16 per hour, based on a 40-hour work week."
The Indiana Project: An Analysis of the Indiana Public Defense System and Attorney Workload Standards. American Bar Association Standing Committee on Legal Aid and Indigent Defendants.
[From the Executive Summary:] "The American Bar Association Standing Committee on Legal Aid and Indigent Defendants (“ABA SCLAID”) and Crowe LLP (“Crowe”) worked collaboratively to conduct an analysis of public defense workload standards on behalf of the Indiana Public Defender Commission (the “Commission”). The analysis consisted of two main phases: (1) the application of the Delphi Method as a survey process to identify how much time an attorney should spend, on average, in providing representation in certain types of cases to provide reasonably effective assistance of counsel pursuant to prevailing professional norms; and (2) an analysis of the historical caseloads for public defense in Indiana....Due to the lack of complete and reliable data in the state, it is not possible to determine the number of full time equivalent (FTE) public defenders during the study period. As a result, it is not possible to complete an analysis to determine whether public defense staffing in Indiana is adequate or deficient and, if deficient, the extent of that deficiency."
Blogs
New study! Evaluating Counsel at First Appearance in Hays County, TX, A2J Lab blog.[From the blog:] "Texas A&M University’s Public Policy Research Institute (PPRI) and the Access to Justice Lab at Harvard Law School (A2J Lab) are launching a randomized study of counsel at first appearance (CAFA) in Texas—the first study of its kind. At first appearance, magistrates decide whether a person will be released while awaiting trial or held in jail. Yet only 4 of 254 Texas counties provide lawyers at this important stage. This week, the research team launches the evaluation in Hays County. Previously, counsel was typically assigned after first appearance. Going forward, the Texas Indigent Defense Commission (TIDC) will provide the funding for counsel to be present at magistration some of the time to evaluate the effect of provision of counsel. The study will randomize days on which counsel is present for a first appearance. Eligible study participants will participate in brief interviews with study attorneys before being represented."