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
Stanislaw Burdziej, Keith Guzik, and Bartosz Pilitowski, "Fairness at Trial: The Impact of Procedural Justice and Other Experiential Factors on Criminal Defendants’ Perceptions of Court Legitimacy in Poland," 44/2, Law and Social Inquiry, 359-390.
A large body of research supports the procedural justice hypothesis that quality of treatment matters more than outcomes for institutional legitimacy. How fairness matters across legal institutions and geographic settings remains an open question, however. This article uses a survey of criminal defendants to test the factors associated with perceived legitimacy of courts in Poland, a country whose judiciary is currently subject to intense political contestation. The findings confirm the primacy of procedural justice, while also illustrating the influence of instrumental performance factors such as time and court organization. This suggests that in contexts of political transition with disputed legal institutions, citizens’ contact with procedurally fair, operationally efficient institutions can support the legitimacy of authorities and strengthen the rule of law.
Aaron Gottlieb, "Making Gideon Count? Public Defender Resources and Felony Case Outcomes for Black, White, and Latinx Individuals." Race and Justice.
Although Gideon v. Wainright has provided indigent defendants potentially facing prison time the right to counsel, commentators and scholars have documented that the public defense system is vastly underfunded and currently in crisis. However, research has rarely examined how public defender resources impact case outcomes, and the research that does exist has yet, to my knowledge, examine how these resources impact racial disparities in case outcomes. By merging data from the Census of Public Defender Offices to data from the State Court Processing Statistics, I begin to fill this gap. Results from multivariate regression analyses with state-year fixed effects provide mixed evidence. Regardless of race, higher public defender and support staff caseloads tend to be associated with worse case outcomes. In the case of pretrial detention, I find that high public defender and support staff caseloads exacerbate Black-White disparities. With respect to sentence length, I find evidence that high public defender caseloads exacerbate Latinx-White disparities and some evidence that they mitigate Black-White disparities. In sum, these results provide strong support for the view that the public defender funding crisis harms indigent defendants regardless of race and mixed evidence regarding its impact on racial disparities in the criminal justice system.
Hannah R. Goudie, "The Guiding Hand of Counsel, for a Price: Juvenile Public Defender Fees and Their Effects" 62/3, William and Mary Law Review.
"Part I of this Note provides background on the development of the juvenile justice system and the juvenile right to counsel. Part II describes the Supreme Court precedents that are key to understanding public defender fee systems. It also discusses the different statutory schemes states use to impose and collect public defender fees in the juvenile system. Part III discusses the problems that public defender fees pose from doctrinal and practical standpoints. Finally, Part IV identifies various ways in which states could prevent public defender fees from chilling juveniles’ right to counsel. These include either minimizing parental influence on children’s decisions to waive counsel or eliminating public defender fees entirely."
Shannon Cumberbatch, "When Your Identity Is Inherently "Unprofessional": Navigating Rules of Professional Appearance Rooted in Cisheteronormative Whiteness as Black Women and Gender Non-Conforming Professionals." 34/2 Journal of Civil Rights and Economic Development. 81-123.
"In Part One, I will unearth the racist roots and oppressive ideologies that underlie the foundation upon which legal institutions and the standards of professionalism borne out of them were formed. In Part Two, I will explore the traditional standards of professional appearance in law—what the standards require of people in the profession, and how these standards are codified, communicated, and inequitably enforced. In Part Three, I will reexamine professional appearance norms through an anti-oppressive and intersectional lens, with particular emphasis on the challenges gender non-conforming people and Black women encounter while navigating white cis-heteronormative standards of professional appearance. In Part Four, I will acknowledge the challenges and offer some recommendations for beginning the process of creating an anti-oppressive culture and developing more equitable expectations of professional appearance in the legal profession that embrace instead of exclude people of marginalized identities and experiences."
Stuti S. Kokkalera, Annmarie Tallas and Kelly Goggin,
Contextualizing the Impact of Legal Representation on Juvenile Delinquency Outcomes: A Review of Research and Policy, Juvenile and Family Court Journal.
This study examines the empirical research on legal representation in
delinquency proceedings and situates it in the broader investigation of
how states provide legal assistance to juvenile defendants. Our review
of empirical studies found that attorney presence was an aggravating
factor in dispositional decisions. After closely examining state
statutory provisions on legal representation in juvenile delinquency
proceedings, we suggest that the penalty effect of attorney presence is
an artifact of the variation in state laws governing access and
oversight of juvenile counsel. We conclude with suggestions for future
research, policy, and practice.
Book chapters
Lisa Flower, The Loyal Defense Lawyer. The Edward Elgar Research Handbook on Law and Emotions, Forthcoming.
[From the chapter:] "In this chapter I explore how defense lawyers’ performance of loyalty is central to their work, particularly, the emotional performance of loyalty. One of the biggest challenges is that lawyers’ performances must remain emotionally appropriate within what I refer to as the “emotional regime of law” – an overarching framework that guides emotional performances and upholds the illusionary division between rationality and emotionality. Professionalism requires complying with emotional norms. This chapter presents some of the findings from my research on defense lawyers in Sweden, drawing on ethnographic fieldnotes from observations of over 50 criminal trials and interviews with defense lawyers. I find a criminal trial to be an inherently emotional and interactional accomplishment with the reproduction of defence lawyers’ loyalty to their clients a crucial component. The Swedish context is particularly interesting as it calls for subtle drama with understated performances."
Lisa R. Pruitt and Andrew Davies, "Investigating Access to Justice, the Rural Lawyer Shortage, and Implications for Civil and Criminal Legal Systems," forthcoming 2022 in Weisheit, Peterson and Pytlarz, Research Methods for Rural Criminologists (New York, Routledge).
[From the chapter:] "When lawyers are not readily available, Access to Justice [A2J] is undermined, and costs to litigants and courts rise. Many quantitative factors measured in relation to A2J are unidimensional and have limited ability to reveal the full complexity of impediments to accessing legal processes.... In both the civil and criminal contexts, the more revealing studies deploy mixed methods; in studying indigent defense, interviews with key stakeholders have proved particularly effective. Surveys of litigants, attorneys, and judges have proved highly informative, too, especially in rural settings without infrastructure for tracking data.... This chapter...begins with a broad introduction to Access to Justice. Next, it turns a geographic lens on the A2J landscape, highlighting spatial and place-specific issues as a prelude to discussing rural deficits, including the lawyer shortage. The chapter concludes by discussing rural criminal justice, with a focus on indigent defense."
Report
Lisa Bailey Vavonese, Jennifer A. Tallon, Marea Beeman, Amanda Berman, Michela Lowry, Elizabeth Ling, Suvi Hynynen Lambson and Brett Taylor, BJA’s Sixth Amendment Initiative: Strengthening the Constitutional Protections of the Accused A Report on Ten Sites Participating in Strategic Planning.
[From the report:] "The purpose of the Sixth Amendment Initiative is to enhance the capacity of state and local governments to protect all rights guaranteed by the Sixth Amendment. In 2017, BJA awarded funding to three agencies to provide training and technical assistance (TTA) to sites across the country seeking to address issues within their jurisdictions. The Center for Court Innovation (the Center), with its partner National Legal Aid and Defender Association (NLADA), was selected to provide strategic planning services; the Sixth Amendment Center (6AC) was selected to provide assessment services (statewide evaluation with recommendations); and NLADA was selected to provide on-demand services (light touch or discrete challenges), produce publications, deliver trainings, and build a website."
Thesis
Jessica L. Kuehn
University of Idaho, Anchoring Effects in Judicial Sentencing Decisions: An Examination of Whether A Second Defense-Derived Anchor Mitigates the Anchoring Effect of Prosecutor Recommendations
Many studies have proposed such disparate sentences result from anchoring effects, in which the prosecutor’s recommendation, or even an irrelevant anchor, influences the judge’s final sentencing decision. The present research examines whether a second anchor—a numerical sentencing recommendation given by the defense counsel—mitigates any observed relationship between the prosecutor-derived anchor and length of sentence imposed. The present study did not find a significant anchoring effect (e.g., sentencing decisions given by those in the high prosecutor-derived anchor conditions did not significantly differ from decisions given by those in the low prosecutor-derived anchor conditions). There was no statistically significant difference between any of the four conditions.