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Notable Recent Publications - June 2023

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


David M. Feldman, Paul M. Silvasi, Dayna Rotshtyn, Caleigh Covell Intersections of the Legal System and the Deaf Community From Law Enforcement to Incarceration. (Springer Cham.)

This book examines how those with disabilities, and in particular, the Deaf and hard-of-hearing, are impacted by the influence language and culture in policing, criminal law, and corrections... [T]his book can serve as an important resource to the myriad of issues and difficulties that may be experiences by the Deaf suspect, defendant, or inmate, as well as by law enforcement officers, attorneys, and correctional officers. 


Kelsey S. Henderson, Kelly T. Sutherland, and Miko M. Wilford, “Reject the Offer”: The Asymmetric Impact of Defense Attorneys’ Plea Recommendations. Criminal Justice and Behavior.

In two studies, we examined the impact of defense attorney recommendation on defendant plea decision-making. Community members and college students participated in a 2 (guilt status: innocent or guilty) × 2 (defense attorney recommendation: accept or reject offer) between-subjects factorial design study. The plea scenario was conveyed via an interactive computer simulation. In both studies...guilty participants were more likely to plead guilty than innocent participants. In Study 2, participants advised to accept the plea were more likely to plead guilty than those advised to reject the plea. Furthermore, being advised to reject the plea resulted in larger changes in willingness to accept a plea (WTAP) than being advised to accept the plea. This asymmetric effect was driven by those participants who were initially inclined to plead guilty but then received advice inconsistent with that inclination.

Banks Miller and Brett Curry. When Advocates Become Adjudicators: Tracing the Effects of Prosecutorial and Public Defense Experience on Judicial Decision Making. American Politics Research.

We assess the influence professional background – specifically, having been a prosecutor or a public defender – exerts on decision making by federal district court judges. Focusing on search and seizure cases, we analyze nearly 1500 motions to suppress evidence from 2000 to 2022. In addition to controlling for judicial ideology and a judge’s prior experience as a prosecutor or public defender, we utilize matching to address endogeneity concerns related to one’s ability to self-select into one of these positions—which may itself be influenced by that individual’s ideological predispositions. We find that having been a former prosecutor, as well as the length of time that service spans, makes a judge significantly more likely to rule against a motion to suppress. Former public defenders are significantly more likely to grant that suppression motion, though their propensity to do so is not affected by the length of time served in that capacity. 

Michael L. Perlin and Heather Ellis Cucolo, “Take the Motherless Children off the Street”: Fetal Alcohol Syndrome and the Criminal Justice System, 77(3) University of Miami Law Review, 561-612.

Remarkably, there has been minimal academic legal literature about the interplay between fetal alcohol syndrome disorder (“FASD”) and critical aspects of many criminal trials, including issues related to the role of experts, quality of counsel, competency to stand trial, the insanity defense, and sentencing and the death penalty. In this Article, the co-authors will first define fetal alcohol syndrome and explain its significance to the criminal justice system. We will then look at the specific role of experts in cases involving defendants with FASD and consider adequacy of counsel. Next, we will discuss the impact of FASD on the major fundamentals of criminal law and procedure, especially as it relates to questions of culpability. Under this broad umbrella of topics, we consider questions that may arise in the criminal trial process, such as those related to competency to stand trial (and, to a limited extent, other criminal competencies), the insanity defense, sentencing, and the death penalty. We look carefully at the way that courts all too often dismiss effectiveness-of-counsel claims in such cases, and the implications of this case law. Finally, we investigate why it is so significant that the caselaw in this area has totally ignored the teachings of therapeutic jurisprudence and offer some conclusions and recommendations (based on therapeutic jurisprudence principles) that, we hope, can (at least partially) ameliorate this situation.


Kyle C. Barry, Molly Bernstein, Timothy E. Bradley. Behind the State Bench. State Law Research Initiative.

[From the website:] [W]e researched and analyzed the legal career of every active justice in every state supreme court... [W]e tracked “indigent defense experience,” which includes both public defenders and lawyers who, for example, served on panels of attorneys appointed when public defenders have a conflict-of-interest. We also tracked civil experience either defending the criminal legal system [or] holding it accountable... [The study found] former prosecutors far outnumber former public defenders, and only a small fraction of state supreme court justices hold any civil rights experience. This trend is especially pronounced when lawyers who practiced civil rights solely on behalf of government agencies are excluded. State courts, like their federal counterparts, remain skewed toward the prosecution and law enforcement perspective of the criminal legal system.

Malia Brink, Pamela Metzger & Jiacheng Yu, How to Solve the Initial Appearance Crisis, Deason Criminal Justice Reform Center.

The Constitution promises that every person in jail will have access to the courts and to counsel. Yet far too often, people languish in jail alone, afraid, and undefended. To honor the Constitution’s promise, jurisdictions must guarantee initial appearance, with the assistance of counsel, within 24 hours of arrest. To enforce these rules, jurisdictions should adopt accountability measures such as automatic review hearings and automatic release. These reforms can help to end the initial appearance crisis.

Gillian Hunter and Nicola Campbell. A short report on the quality of legal representation in the youth justice system. Institute for Crime and Justice Policy Research.

[From the report:] The project addresses four questions...: What knowledge, skills and attributes do criminal defence solicitors need to work effectively with child suspects and defendants? To what extent do criminal solicitors have the requisite knowledge, skills, and attributes? What factors support or undermine solicitors’ acquisition of the knowledge, skills and attributes for effective practice in the YJS [Youth Justice System]? What specific interventions and additional training could enhance the quality of solicitors’ work with child suspects and defendants? [The research includes] an online survey...19 key informant interviews [and] some limited court observations...


Zachary J. Porreca, Essays on the Economics of Law and Crime, Ph.D. thesis, Economics, John Chambers College of Business and Economics at West Virginia University.

[See especially chapter 3 summarized in the abstract:] [W]e exploit a novel data set of criminal trials in 19th century London to evaluate the impact of an accused’s right to counsel on convictions. While lower-level crimes had an established history of professional representation prior to 1836, individuals accused of committing a felony did not, even though the prosecution was conducted by professional attorneys. The Prisoners’ Counsel At of 1836 remedied this imbalance and first introduced the right to counsel in common law systems. Using a difference-in-difference estimation strategy we identify the causal effect of defense counsel. We find the surprising result that the professionalization of the courtroom led to an increase in the conviction rate, which we interpret as a consequence of jurors perceiving the trial as being fairer. We go further and employ a topic modeling approach to the text of the transcripts to provide suggestive evidence on how the trials changed when defense counsel was fully introduced.