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Amina Azhar-Grahama, Carina Gallo. Reimagining public defense advocacy in times of Covid-19: lessons from a task force. Vol 33/1 Current Issues in Criminal Justice.
In March 2020, the Contra Costa Public Defenders Association (CCPDA) established a task force to counter the injustices and dangers experienced by clients in custody during the Covid-19 pandemic. The purpose of this commentary is to describe the background and work of the task force, discuss the lessons learned and finally, to identify opportunities for reshaping the criminal justice landscape. In response to the humanitarian crisis in jail, the task force fought for systematic reform, including decarceration. However, while faced with increasingly divergent challenges arising from the pandemic, the task force became overextended, reverting its focus onto membership. The task force’s main lesson is that alliances with other organizations are essential to propel political and legislative change. The Covid-19 task force provided a platform for CCPDA to publicly protest the treatment of incarcerated people, while also providing an opportunity to rethink its role as a political organization. Moving forward, public defenders can, in collaboration with other organizations, play an essential role in criminal justice reform. To prevent future deaths of people in custody during this and future pandemics, we must find alternatives to the current correctional system.
Caitlin M. Brady and Jennifer H. Peck. Examining the Type of Legal Representation and Its Influence on Disaggregated Dispositions in Juvenile Court. Youth and Juvenile Justice.
While prior studies of juvenile court outcomes have examined the impact of legal representation on out-of-home placement versus community sanctions, previous research has not fully explored the variation within sanctions that youth receive. The current study examines the influence of type of legal representation (public defender or private attorney) when predicting juvenile adjudications and dispositions. Using a sample of delinquent referrals from a Northeast state between 2009 and 2014, results showed that youth do receive different outcomes (e.g., probation, drug and alcohol treatment, accountability-oriented dispositions, etc.) based on the type of legal representation. The findings have important implications for juvenile court processing related to how courtroom actors impact case outcomes.
Nikki Trautman Baszynski, Uncovering Official Lawlessness in Ohio's Criminal Court Debt Assessment and Collection: A Toolkit for Defenders. Ohio State Journal of Criminal Law.
What this Article seeks to explore are those instances where government actors go beyond quite modest legal constraints to exact even more money from indigent defendants. It seeks to bring into court debt conversations those individuals with felony convictions and those who are caged inside prisons—two groups that can often be absent in reform advocacy. And most importantly, it seeks to encourage and equip defense attorneys to monitor, challenge, and correct these unlawful practices.
Matthew Clair, Being a Disadvantaged Criminal Defendant: Mistrust and Resistance in Attorney-Client Interactions. Vol 100/1, Social Forces, pp. 194-217.
Researchers have documented the power of legal officials to administer sanctions, from arrest to court surveillance and incarceration. How do those subject to punishment interact with officials and attempt to subvert their power? Drawing on interviews and ethnographic observations among 63 criminal defendants and 42 legal officials in the Boston-area court system, this article considers how socioeconomically and racially disadvantaged defendants interact with their defense attorneys, and with what consequences. Given racialized and classed constraints, many disadvantaged defendants mistrust their court-appointed lawyers. Their mistrust often results in withdrawal from their lawyers and active efforts to cultivate their own legal knowledge and skills. Defendants use their lay legal expertise to work around and resist the authority of their lawyers. Defense attorneys and judges respond with silencing and coercion, given the unwritten norms and rules of the court. These findings complicate existing accounts of disadvantaged defendants as passive actors and contribute to cultural sociological and relational theories of how people engage with professionals across institutional spaces. Unlike in mainstream institutions such as schools and hospitals where self-advocacy is rewarded in interactions, criminal court officials reject disadvantaged defendants’ attempts to advocate for themselves.
Caroline Erentzen, Regina A. Schuller, and Kimberley A. Clow. Advocacy and the Innocent Client: Defence Counsel Experiences with Wrongful Convictions and False Guilty Pleas. Wrongful Conviction Law Review.
Much of our knowledge about wrongful convictions is derived from known exonerations, which typically involve serious violent offences and lengthy sentences. These represent only a small proportion of offences prosecuted in Canada each year, and little is known about how often innocent defendants may be wrongfully convicted of less serious offences. Recent discussions have begun to focus on the problem of false guilty pleas, in which defendants choose to plead guilty to a lesser offence to avoid the time and cost required to defend their innocence. The majority of our knowledge of the factors contributing to wrongful convictions is based on American scholarship, with less empirical research exploring wrongful convictions within the Canadian context. The present research surveyed Canadian criminal defence lawyers about their experiences representing innocent clients, including their perspective on the underlying causes of wrongful convictions in Canada and their recommendations for reform to the criminal justice system. Nearly two-thirds of defence counsel in this study reported that they had represented at least one client who was convicted despite credible claims of innocence. Many reported that they regularly see innocent clients choose to enter a strategic false guilty plea, perceiving no meaningful or realistic alternative. Counsel described a system designed to elicit a guilty plea, with lengthy pre-trial delays, routine denial of bail, inadequate funding of Legal Aid, costly defence options, padded charges, and false evidence ploys. This research expands our knowledge of wrongful convictions in Canada, their hidden prevalence, and systemic problems that increase the likelihood of their occurrence.
Jon Gould, When the Courts Are Indifferent and Legislators Apathetic: Partnering with Protectors to Protect Public Defense, Criminal Law Bulletin.
The last decade offered advocates fleeting hope that the courts would step in to reform public defense. However, recent decisions by state courts – and the intransigence of the federal judiciary – have proven those prospects a mirage. In this essay, a courts’ researcher and advocate condemns federal and state jurists for their open and continuing refusal to address a constitutional crisis occurring daily in their own courthouses. Legislatures are proving powerless to fix the problem, too. If change is possible, it will come from the most unlikely partners in an adversarial legal system – prosecutors. Far from a wild notion, this initiative is already underway in several jurisdictions. Reform makes for strange bedfellows.
Kelsey S. Henderson, Examining the effect of case and trial factors on defense attorneys’ plea decision-making. Psychology, Crime and Law.
Defense attorneys are attuned to the defendant’s likelihood of conviction at trial, based on the strength of the evidence, in forming their plea decisions. A higher threshold for conviction (i.e. unanimous jury verdict rule versus majority rule), could affect defense attorneys’ willingness to take cases to trial. In this study, we examined defense attorney decision-making by presenting defense attorneys with a hypothetical case summary in which the jury verdict rule was unanimous versus majority rule (experiment one, N = 82), and the strength of the evidence was weak versus strong (experiment two, N = 81). In experiment one, there was no direct or indirect effect of jury verdict rule on plea decision-making. Rather, defense attorney estimates of the defendant’s likelihood of conviction predicted plea decisions; defense attorneys who perceived a higher likelihood of conviction were more likely to recommend plea bargaining than those who perceived a lower likelihood of conviction. In experiment two, strength of evidence influenced a number of defense attorney decisions. Defense attorneys in strong evidence conditions were more likely to recommend plea bargaining, rated the defendant’s likelihood of conviction higher, and their probability of winning at trial lower than those in weak evidence conditions.
Jeremiah W. Jaggers, Aurene Wilford, Ileana Anderson, and Joanna Bettmann. Perceived Effectiveness of Parent Representation Social Workers by Legal Professionals Involved with Indigent Defendants. Vol. 21/2, Advances in Social Work, p.100-115.
The total number of children in the U.S. foster care system exceeds 428,000. Previous research indicates that when social workers and legal professionals work together, children and their families benefit significantly. Parents who effectively engage in the child welfare system are more likely to benefit from services and reunify with their children. The present study employed a phenomenological approach to explore how a parent representation pilot, which paired social workers with public defenders to better represent the needs of families in the child welfare system, was experienced by legal professionals. Judges and family court attorneys (n = 9) found the program to be helpful in reunifying families. Public defenders were able to leverage the social worker’s skills and experience to facilitate more positive outcomes, while reducing case burden. Challenges were also identified and included a lack of interdisciplinary training, potential overlap in ethical responsibilities, and role confusion. Structured intervention programs that encourage collaboration between social workers and legal professionals may improve case outcomes for indigent families involved in the child welfare system. It is advised that social work undertake a formal multidisciplinary approach in support of public defenders, which may serve to encourage positive case outcomes.
Brian Libgober, Getting a Lawyer While Black: A Field Experiment, vol. 24/1, Lewis and Clark Law Review, pp. 53-108.
[From the introduction:] "This Article presents the results of several audit experiments exploring the extent and causes of racial discrimination in the market for legal services. The principal finding is that in response to cold email requests for representation, lawyers respond to individuals with white-sounding names twice as frequently as those with black-sounding names.... Do lawyers put equal effort into serving their black clients as their white ones? [F]inding racial disparities in one context makes it all the more likely that disparities are also prevalent in other areas that are harder to observe."
Christi Metcalfe, Toward a method for evaluating court actor influences on plea negotiations: A preliminary exploration of public defenders. Behavioral Sciences and the Law.
Plea negotiations remain difficult to study, partly because their informality implicates workgroup-related factors within decision-making. In quantitative analyses, these factors are impossible to measure using the case-level data alone. The current study proposes a combined method using survey data and administrative case data as a means of contextualizing the plea process from the standpoint of workgroup members and quantifying workgroup characteristics that can be used as variables in models predicting actual plea outcomes. A preliminary exploration of this kind is conducted with public defenders. The survey data revealed that public defenders thought pleas were necessary to manage caseloads and resources, but also felt the benefits to defendants outweighed the drawbacks. In a descriptive analysis linking survey- and case-level data, the percent of charge reductions among plea cases varied substantively based on both workgroup relationship characteristics and ideologies of the public defenders. Directions for future research adopting this type of approach are discussed.
Kelly Murphy, Shelby Hickman. and Rebecca M. Jones. Looking Up at the Ivory Tower: Juvenile Court Judges’ and Attorneys’ Perceptions of Research Use. Journal of Research in Crime and Delinquency.
Objectives: Explore how judges and attorneys define, acquire, interpret (i.e., determine the accuracy and relevancy), and use research in their decision-making in delinquency cases. Methods: We conducted semi-structured interviews with 30 judges, 15 prosecutors, and 13 defense attorneys. We used stratified purposeful sampling, stratifying participants by region of the U.S. and urbanicity. Results: Judges and attorneys have a sound understanding of how research can enhance their work. Typically, judges and attorneys acquire research from intermediaries. Beyond being a conduit for research, intermediaries play an important role in vetting the quality of research and identifying viable recommendations for practice. While practitioners are willing to use research, they feel that their ability to do so is limited by factors such as state policy, funding, and inaccessibility of research. Conclusions: While we caution generalization of the findings, this study contributes to the evidence-base on the use of research by documenting that judges and attorneys most often use research conceptually (i.e., research changes their perspective which then changes their behavior). Although respondents also reported using research-based tools to make specific decisions (instrumental use), many reported overriding research when they felt it conflicted with their judgment, suggesting that political use of research may be prevalent.
Esther Nir and Siyu Liu, Defending Constitutional Rights in Imbalanced Courtrooms, 111 J. Crim. L. & Criminology 501 (2021).
Safeguarding Fourth Amendment protections is critical to preserving individual privacy rights and fostering positive perceptions of police legitimacy within communities. Maintaining an effective accountability structure for police stops, searches, and seizures is a necessary step toward achieving these objectives. In this article, we use qualitative interviews and survey data with defense attorneys to explore—from a court community perspective— their use of discretion to uphold the Exclusionary Rule through bringing suppression motions. Data demonstrate that power dynamics within the court community lead defense attorneys to conclude that litigating rights violations is often a futile effort that interferes with favorable case outcomes and important professional relationships. As a result, they sometimes opt to refrain from filing suppression motions in exchange for favorable plea offers and career aspirations. While understandable, these decisions frustrate the ability of the judicial system to hold the police accountable for Fourth Amendment violations.
Jeffrey J. Shook, Sara Goodkind, Karen M. Kolivoski PhD, MSW, Kess L. Ballentine. Procedural justice and legal socialization among juvenile offenders: The role of defense attorneys. Vol. 77/2 Journal of Social Issues, pp. 484-503.
Research is increasingly focusing on how young people interpret their experiences with the legal system and whether and how this shapes attitudes and beliefs about the system. This study adds to the extant literature by examining the relationship between perceptions of procedural justice and attitudes toward the law and legal system for a sample of youth (N = 227) in residential placements. Specifically, it focuses on how youths’ perceptions of their defense attorneys shape their attitudes toward the legal system. Results demonstrate that youth who feel they were treated more fairly by their defense attorneys viewed the police and courts as more legitimate. White youth viewed the police as more legitimate than did youth of color and girls viewed courts as less legitimate than did boys. Attitudes toward the legal system were also related to other contextual characteristics.
Marian R. Williams, "Right to Counsel in Pretrial Proceedings." In Christine S. Scott-Hayward, Jennifer E. Copp, Stephen Demuth, eds. Handbook on Pretrial Justice. Routledge.
"A number of pretrial decisions are made that can negatively affect defendants in the criminal justice system. To assist defendants, the right to appointed counsel at every stage of the pretrial process is critical to ensuring that the rights of defendants are upheld. These stages include questioning by police, first appearance, and bail hearings, to name a few. The U.S. Supreme Court has ruled that defendants are entitled to counsel in most of these proceedings; however, whether counsel is provided and the extent to which it is supported in the states remains inconsistent. This chapter explores the right to assistance of counsel for defendants, focusing on U.S. Supreme Court cases and the effect that having a counsel has on a defendant’s case. "
Milton Heumann, Rick Kavin, and Anu Chugh, Courtroom Workgroups: "A Prosecutor, a Defense Attorney, and a Judge Walk into a Bar.” In Ronald F. Wright, Kay L. Levine, and Russell M. Gold, The Oxford Handbook of Prosecutors and Prosecution (Oxford, OUP).
[From the chapter:] “[W]e begin with the vast literature on criminal courts to address the place of workgroups among the myriad factors at play int he court process. We then before beyond the body of extant research and report the results of our own interviews…. We…raise three concerns and questions about worlgroups that were implied in the literature and then highlighted by our interviews.”
Ellen Yaroshefsky, “The Relationship Between Prosecutors and Defenders.” In Ronald F. Wright, Kay L. Levine, and Russell M. Gold, The Oxford Handbook of Prosecutors and Prosecution (Oxford, OUP).
[From the chapter:] “This chapter relies upon those [previously cited] studies and recent interviews by this author to examine the interrelated factors that affect the relationship between prosecutors and defenders in the United States, and in some other common law countries and civil law countries. First, it discusses the respective roles of prosecutors and defenders and the attitudes that often result from these roles. It then considers the most significant factor in all countries: the power of prosecutors and differences in how different prosecutors exercise that power. Other factors that affect the relationship between these lawyers are discussed in turn. These are social architecture of the offices, the reward structures and the lawyer’s individual characteristics. It discusses structural changes in the past decades that have changed or may change those relationships. The article then addresses the comparable relationship in common law and civil law countries.”
Julian Adler, Sarah Picard, and Caitlin Flood, Arguing The Algorithm: Pretrial Risk Assessment And The Zealous Defender. Center for Court Innovation.
“The authors contend that defense attorneys are in a position to challenge the data science undergirding risk assessments and use their implementation as a lever for renegotiating the “going rates"—the default rules that expedite the disposition of cases and drive the plea-bargaining process in a given jurisdiction. Additionally, focusing on recent pretrial reform efforts in New York and New Jersey, the article underscores the potential of defenders to influence broader policy debates that ultimately affect practice on the ground.”
Stephen Hanlon, Malia Brink & Norman Lefstein. Use of Delphi Method in ABA SCLAID Public Defense Workload Studies: A Report on Lessons Learned. American Bar Association.
[From the conclusion:] “In 2012, ABA SCLAID sought to develop a way of accurately quantifying maximum workloads using reliable data and analytics. The goal of this project has been to provide public defense organizations and attorneys with the information needed to advocate for relief when their workloads are too high. There is now a considerable body of reliable data and analytics in public defender workload studies for that community to use in managing their operations, advocating for increased resources with policymakers and, if that fails, litigation. Organizations and attorneys in jurisdictions that have been the subject of a Delphi workload study have found the studies useful in explaining caseload and budget issues to key policymakers and advocating for greater resources and improved caseload controls.”
National Association for Public Defense, Harris County Misdemeanor Assessment Report
[From Executive Summary, pp. 1, 7:] “[T]he National Association for Public Defense (NAPD) was retained by Harris County to (1) evaluate its current misdemeanor indigent defense systems in Harris County, and (2) determine the need for essential support staff and holistic services to promote zealous and effective indigent defense…. Harris County has made progress in creating and funding value-centered structures to ensure effective county-wide representation of persons charged with a misdemeanor who cannot afford counsel. At the same time, there remain measures critical to realizing the goal of effective client-centered holistic representation across all indigent cases in Harris County that are yet to be accomplished.”
Nicholas M. Pace, Dulani Woods, Roberto Guevara, Chau Pham, Shamena Anwar, Provisional Caseload Standards for the Indigent Defense of Adult Criminal and Juvenile Delinquency Cases in Utah. RAND Corporation.
“[T] his project conducted three data collection efforts to provide the empirical foundation for the Utah standards: an analysis of attorney time records maintained by two large public defender offices in Salt Lake County, a survey of indigent defenders practicing in Utah, and the convening of a panel of experts to reach consensus on recommended average time expenditures for counsel representing indigent defendants in various categories of criminal matters in Utah trial courts. The authors present for the IDC's consideration recommended caseload standards based on analysis of the collected data.”
[From Executive Summary:] “[T]his report is the result of a statewide evaluation of the provision of the right to counsel in adult criminal cases at the trial level, conducted at the request of the Illinois Supreme Court. Through data collection and analysis, interviews with criminal justice stakeholders, and courtroom observations, the evaluation assessed indigent defense services against national standards and Sixth Amendment caselaw that establish the hallmarks of a structurally sound indigent representation system, which include the early appointment of qualified and trained attorneys, who have sufficient time and resources to provide effective representation under independent supervision. The absence of any of these factors can show that a system is presumptively providing ineffective assistance of counsel. This evaluation focuses closely on the practices of nine counties – Champaign, Cook, DuPage, Gallatin, Hardin, LaSalle, Mercer, Schuyler, and Stephenson – which taken together illustrate the wide variations among Illinois county governments and courts in their efforts to fulfill the Sixth Amendment right to counsel.”
Al'leta Ector, Effect of Race and Education on Plea Outcomes for Public Defender Clients. Masters Thesis, Middle Tennessee State University.
“[H]ow does race and educational level of a defendant explain the case disposition for those accepting a guilty plea? I use secondary data from a single county in Tennessee compiled from public defender’s (PD) records for the years 2016-2019 to examine four case outcomes: cases dismissed, deferred to probation, guilty to a lesser charge, and guilt as charged. Of the 6,800 cases, nearly 60 percent of cases were guilty as charged and only a smaller percentage (3.5%) were deferred to probation. White clients were more likely to plead guilty as charged compared to Black clients. Those with higher education were more likely to have cases dismissed or deferred to probation. In addition, younger ages and females were more likely to negotiate lesser charges, be deferred to probation, or have their cases dismissed than older, male clients. Felony cases were more likely to negotiate lesser charges than misdemeanor cases. Implications of these findings and limitations of the data are discussed.”
Newbill, Selma. How to Defend Those Who Defend: An Examination of the Underfunding of the Public Defender System. University of Southern Mississippi, Honors Thesis.
“The purpose of this research is to examine the history of the public defender system, to address the problems within the system as it stands today, to explore what scholars suggest can be done to improve the system, and to give my own suggestions as to what should be done after conducting this research. The specific shortcomings that will be investigated include the lack of financial support given to public defenders; the disparate impact a lack of public defenders has on specific communities; and how implementing standardization to the current legislation would allow all public defenders to provide their defendants with adequate representation.”
The goals of this project were to: describe the implementation of holistic defense principles in three indigent defense programs; measure each program's impact on pretrial court practices, manner of disposition, sentencing, and other case outcomes; and explore an appropriate methodology to assess the cost-efficiency of these programs in comparison with traditional criminal defense practice. Researchers collected data on both holistic and traditional defense delivery via interviews, surveys, focus groups, observation during site visits, and administrative data from public defender and court information systems. This evaluation was conducted in three research sites: Rhode Island Public Defender (Providence office); Minnesota Public Defender (Minneapolis office); and the Kentucky Department of Public Advocacy (Bowling Green office). The evaluation focused on adult criminal cases. A process evaluation examined how holistic defense has been implemented in each site. The impact evaluation used a quasi-experimental design that includes matched comparison groups and alternative statistical models to examine the relative impact of holistic defense on a range of outcomes, controlling for defendant characteristics. The project investigated the parameters necessary to conduct a cost-efficiency analysis within the context of holistic defense and, to the extent possible, began to estimate the costs/benefits of holistic defense services. In addition to data sets for archiving and a summary report to NIJ, anticipated work products include professional conference presentations, manuscripts for submission to professional journals, and research briefs.