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Notable Recent Publications - February, 2022

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

Journal Articles

Nicole Gonzalez van Cleve, Due Process & the Theater of Racial Degradation: The Evolving Notion of Pretrial Punishment in the Criminal Courts Daedelus, 151(1), Winter, 2022, 135-152.

Most theorists assume that the criminal courts are neutral arbiters of justice, protected by the Constitution, the rule of law, and court records. This essay challenges those assumptions and examines the courts as a place of punitive excess and the normalization of racial abuse and punishment. The essay explains the historic origins of these trends and examines how the categories of “hardened” and “marginal” defendants began to assume racialized meanings with the emergence of mass incarceration. This transformed the criminal courts into a type of public theater for racial degradation. These public performances or “racial degradation ceremonies” occur within the discretionary practices and cultural norms of mostly White courtroom professionals as they efficiently manage the disposition of cases in the everyday practice of law. I link these historical findings to a recent study of the largest unified criminal court system in the United States–Cook County, Chicago–and discuss court watching programs as an intervention for accountability and oversight of our courts and its legal professionals.

Peter Leasure, John Burrow, Gary Zhang & Hunter M. Boehme, Collateral Consequences of Conviction in South Carolina Courts: A Study of South Carolina Defense Lawyers. Justice System Journal.

Recognizing the negative impacts of collateral consequences, policy-makers and scholars have sought to implement formal and informal standards aimed at increasing defendant notice of such consequences before pleading guilty. However, very few studies have sought to explore the actual practices of courtroom actors regarding collateral consequence notice. The current study filled this gap in knowledge using a survey of South Carolina defense lawyers. Specifically, South Carolina defense attorneys were surveyed about their practices regarding collateral consequence notice as well as their observations of judicial practices regarding collateral consequences. Results indicate that while a large majority of defense attorneys felt that it was their responsibility to inform their clients of collateral consequences, only 36% of respondents agreed that attorneys do a good job informing clients about collateral consequences. In fact, few respondents noted that they always inform their clients about collateral consequences that ex-offenders, probation and parole officers, and social workers consistently identify as particularly impactful to a successful reentry (those related to employment, housing, civic rights, and public benefits) and many never or rarely do so. However, 94.3% of respondents noted that they commonly discuss other collateral consequences with clients. Further, respondents noted that few judges always or often discuss collateral consequences. These results suggest that some collateral consequences are being discussed with some defendants, but also that these practices are inconsistent. Informed by these findings, recommendations for increasing defendant notice of collateral consequences are discussed. 

Maria Katarina E. Rafael, and Chris Mai. Understanding the Burden of Legal Financial Obligations on Indigent Washingtonians. Social Sciences 11:17. 

In criminal courts across the country, judges assess a variety of fines, fees and other legal financial obligations (LFOs) that many defendants struggle to pay. This paper examines the disproportionate burden that fine and fee assessment and collection practices impose on low-income, system-involved individuals, using administrative court data for criminal cases filed in Washington’s courts of limited jurisdiction between 2015 and 2020. The authors find that the majority of defendants do not or only partially pay their LFOs, but that these observations are more pronounced for indigent defendants. The authors also find that, of defendants who fully pay off their fines and fees, individuals with a public defender satisfy their debt after a greater number of days, as compared to individuals with private counsel. This is all in spite of public defender defendants generally being assessed smaller amounts in fines and fees at the outset. Additionally, the authors uncover that when defendants do pay off all of their fines and fees, they tend to do so on the day of assessment, with the likelihood of satisfying full payment generally decreasing as time goes on. These findings suggest that many people struggle with criminal justice debt, but that this problem disproportionately impacts indigent Washingtonians, subjecting them to a greater possibility of harm through the various methods of collections enforcement.

Book Review

Reimagining the Public Defender Sarah A. Seo.

This review addresses three recent books: Gideon’s Promise: A Public Defender Movement to Transform Criminal Justice by Jonathan Rapping, Free Justice: A History of the Public Defender in Twentieth-Century America by Sara Mayeux, and Privilege and Punishment: How Race and Class Matter in Criminal Court by Matthew Clair.


National Association of Counsel for Children, Recommendations for Legal Representation of Children and Youth in Neglect and Abuse Proceedings.

[From the Document:] These revised Recommendations for Legal Representation of Children and Youth in Neglect and Abuse Cases call upon attorneys and legal service delivery systems to anchor legal representation around the voice and interests of children and youth, as defined by youth with lived experience in the child welfare system. They establish 10 primary duties of attorneys for children and youth. Together, these duties reflect NACC’s overall vision for effective, high-quality children’s lawyering in neglect and abuse proceedings.  

American Bar Association, The Oregon Project: An Analysis of the Oregon Public Defense System and Attorney Workloads Standards.

[From the report:] Oregon needs an additional 1296 FTE contract attorneys –more than three times its current level - to meet the standard of reasonably effective assistance of counsel guaranteed by the Sixth Amendment. In other words, with a consistent annual workload, Oregon has only 31% of the public defense attorneys it needs to handle its adult and juvenile caseloads.

American Bar Association, The New Mexico Project: An Analysis of the New Mexico Public Defense System and Attorney Workload Standards 

[From the report:] New Mexico needs an additional 602 full-time attorneys –more than twice its current level - to meet the standard of reasonably effective assistance of counsel guaranteed by the Sixth Amendment. In other words, with a consistent annual workload, New Mexico has only 33% of the public defense attorneys it needs to handle its adult and juvenile caseloads.