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Notable Recent Publications - October 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


Pamela Metzger, Criminal (Dis)Appearance, George Washington Law Review.
"Across the United States, thousands of newly-arrested people disappear. They languish behind bars for days, weeks – or even months – without ever seeing a judge or an attorney. Yet, the Supreme Court requires more constitutional process for the seizure “of a refrigerator, . . . temporary suspension of a public school student, or . . . suspension of a driver’s license,” than it does for a person who has just been arrested and detained. A new arrestee has no clearly-established constitutional right to a prompt initial appearance procedure. As a result, there is no constitutional doctrine that guarantees her the right to appear promptly before a judge, to challenge the evidence that supports her arrest, to receive the prompt assistance of counsel, or to participate in an adversarial bail hearing. Amidst our national conversation about the need for criminal justice reform, this Article is the first scholarly work to address the initial appearance crisis." 

Kaitlin Sidorski and Wendy Schiller. Litigating Lives and Gender Inequality: Public Defenders, Policy Implementation, and Domestic Violence Sentencing, Journal of Women, Politics and Policy.
"In this article, we show that domestic violence public policies are implemented inconsistently across states under federalism. Using original survey data of public defenders across 16 states, with data on domestic violence laws, we demonstrate that there are differing policies and implementation practices regarding domestic violence cases depending on where they are adjudicated. State level domestic violence laws, such as mandatory arrest and firearm access restrictions, combined with structural elements of the judicial system, and public defender personal characteristics, exert significant influence in determining the outcomes of domestic violence cases. Overall, our analysis shows that the lack of uniformity in the implementation of domestic violence policy creates inequality in the criminal justice system’s treatment of domestic violence and makes personal security for women contingent on where they live." 

Alisa Smith, The Cost of (In)Justice: A Preliminary Study of the Chilling Effect of the $50 Application Fee in Florida's Misdemeanor Courts. University of Florida Journal of Law and Public Policy, vol. 30, pp. 59--97.
"At least 27 states, including Florida, charge application fees to poor defendants to determine whether they qualify for the appointment of counsel. Whether these fees dissuade poor defendants from asserting their right to counsel is an empirical question with an empirical answer. The Supreme Court, however, has treated this question as a matter of settled fact, determining that added fees do not chill the assertion of the right to appointed counsel. In reaching this conclusion, the Court did not rely on empirical studies or research, and to date, no empirical research has directly answered this question. The present research begins to explore that empirical void. Relying on court observations and interviews with defendants who entered pleas during their misdemeanor court arraignments without counsel, this preliminary research found that the application fee might chill defendants' decisions to request appointed counsel, at least indirectly, and more empirical research is necessary on this important constitutional question."


Access to Counsel at First Appearance: A Key Component of Pretrial Justice. National Legal Aid and Defender Association.
[From the Executive Summary:] "This paper aims to provide indigent defense service providers and other criminal legal system stakeholders with legal arguments, standards, examples from the field, and empirical data to help them promote CAFA in their own jurisdictions. The discussion undertaken in this guide is divided into six parts: 1. A brief overview of existing problems in the criminal legal system—particularly overuse of pretrial incarceration—that can be partially solved by providing CAFA; 2. Legal arguments stemming from Rothgery v. Gillespie County and its progeny that advocates can use to support introduction or maintenance of CAFA in a given jurisdiction; 3. The advantages that provision of CAFA brings for quality representation, in alignment with practice standards; 4. Case studies and empirical examples of jurisdictions that have implemented CAFA programs, showing that these programs are both feasible and successful; 5. More recent efforts to implement CAFA in various jurisdictions; and 6. Key policy components for successful implementation of a CAFA program."  

Oregon Assessment, National Juvenile Defender Center.
"[T]he Oregon Assessment is based on interviews, court observations, and research conducted by a team of experts who analyzed Oregon’s juvenile defense systems and delinquency courts over the course of a year. The assessment found that while Oregon’s public defense system has adopted minimum qualifications and best practices for those representing young people in delinquency cases, it does not provide oversight or enforcement. As such, the system does not ensure quality representation for young people across the state."

Review of the Municipal Court Indigent Defense Service Delivery Eugene, Oregon. National Legal Aid and Defender Association.
[From 'Background and Methodology':] "[T]his report is divided into chapters as follows. Chapter 2 discusses the Eugene Municipal Court’s structure and operation. Chapter 3 focuses on the structure and operation of Eugene’s indigent defense system, including compensation of indigent defense attorneys. Chapter 4 outlines relevant national standards and best practices for indigent defense systems and uses those as a lens for analyzing the current system in Eugene. Finally, Chapter 5 presents findings and recommendations."

The Right to Counsel in Santa Cruz County, California: Evaluation of Trial-Level Indigent Representation Services. The Sixth Amendment Center.
[From this blog post:] "For decades, Santa Cruz County has delegated to private law firms, through county contracts, all decision-making about the provision of Sixth Amendment right to counsel services. The county cannot accurately say how many people or cases, and of what case types, require appointed counsel nor by whom the representation is being provided, if at all. At the same time, the county does not require that the contract private law firms explain: how much tax-payer money they spend on overhead and what is acquired; how much money they pay to partners, associate attorneys, and staff; nor what services are provided in exchange. A new 6AC report explains why these problems result from the State of California’s failure to uphold its constitutional obligations."

Conference papers

Bernardo Oliveira Buto, Characterizing the Autonomy of Nationwide Public Defenders' Offices: A Systematic Comparison Between 15 Latin American Countries. Encontro de Administração da Justiça (Administration of Justice meeting; ENAJUS).
"In most Latin American countries, the provision of legal assistance to the economically and socially vulnerable population is carried out by public Defender’s offices (PDOs), entities composed of state-paid career lawyers. These entities have different institutional design and various levels of autonomy. Studies on autonomy have focused mainly on regulatory agencies in developed western countries. In this way, a study on Latin American PDOs brings a great contribution to the literature on delegation of authority to autonomous entities. The aim of this paper is twofold: characterize the autonomy of the nationwide Latin American PDOs, and explain the cross countries variations in the autonomy levels. Therefore, a scale to measure autonomy was built allowing access to the autonomy of 15 different PDOs. Data were gathered through content analysis of the statutes that organize the PDOs. The results demonstrate different levels of autonomy among Latin American PDOs. There are indications of a positive relationship between de facto and formal autonomy. The level of autonomy varies according to factors related to institutional and social contexts, and reputational mechanisms. The level of poverty and income is especially relevant, in view of the institutional mission of PDOs and the social inequality historically observed in the region. The data set generated by this study is unique and covers a large amount of Latin American Countries. It could be used in futures studies to evaluate the consequences of the agencification of the policies related to access to justice in Latin America."