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
Roni Factor, Dana Kariti, Hagit Lernau & Danielle Yaffe Ayubi, Videoconferencing in Legal Hearings and Procedural Justice. Victims and Offenders.
The use of videoconferencing (VC) technology in legal hearings has been expanding recently. However, the effects of using VC in court hearings on different elements of procedural justice have not yet been widely investigated. Systematic observations conducted in 370 extension-of-detention hearings were used to compare the court settings and dimensions of procedural justice between hearings where the detainee was present in person vs. through VC. Multivariate regression analysis indicates that the voice, respect, and neutrality elements of procedural justice are significantly lower in VC hearings than in-person hearings, controlling for various variables. The findings suggest that legal bodies should consider measures to improve the quality of procedural justice during VC hearings, thereby improving satisfaction and acceptance of courts’ decisions.
Lindsay Graef, Sandra G. Mayson, Aurélie Ouss, and Megan T. Stevenson, Systemic Failure to Appear in Court. University of Pennsylvania Paw Review (forthcoming).
[From the Abstract:] Recent policy and scholarship have addressed FTA mostly as a problem of criminal defendants, in connection with questions about how bail systems should operate. But ten years of data from Philadelphia reveal a striking fact: It is not defendants who most frequently fail to appear but rather the other parties necessary for a criminal proceeding—witnesses and lawyers. Between 2010 and 2020, an essential witness or lawyer failed to appear for at least one hearing in 53% of all cases, compared to a 19% FTA rate for defendants. Police officers, victims, other witnesses, and private attorneys each failed to appear at rates substantially higher than defendants.
Jennifer E. James, Emily F. Dauria, Riya Desai, Adelaide Bell and Jacob M. Izenberg, “Good
luck, social distance”: rapid decarceration and community care for
serious mental illness and substance use disorder during the COVID‑19
pandemic. 11/39, Health and Justice.
The COVID-19 pandemic inspired calls for rapid decarceration of prisons and jails to slow the spread of disease in a high-risk congregate setting. Due to the rarity of intentionally-decarcerative policies, little is known about the effects of rapid decarceration on individuals with serious mental illness (SMI) substance use disorder (SUD), a population who receive many services via the criminal legal system (CLS). We conducted interviews with 13 key informants involved in CLS in San Francisco, CA to better understand the implication of the decarcerative policies put into practice in early 2020. Participants described a tension between the desire to have fewer people incarcerated and the challenges of accessing services and support – especially during the lockdown period of the pandemic – outside of the CLS given the number of services that are only accessible to those who have been arrested, incarcerated, or sentenced. These findings emphasize the need for investing in community social services rather than further expanding the CLS to achieve the goal of supporting individuals with SMI and SUD shrinking the US system of mass incarceration.
Kelin Meng From 'Sentencing Negotiations' to 'Prosecution Defense Negotiations': On the Improvement Path of the Guilty Plea Bargaining System. Law and Economy.
In China’s guilty plea cases, only limited sentencing negotiations involving the parties are allowed, and the voluntary nature lacks guarantees, resulting in a low willingness of the parties to participate in negotiations and difficulty in realizing the efficiency value of the leniency system for guilty pleas. In contrast to China’s limited sentencing negotiation system, some countries have adopted a prosecution defense negotiation system, which allows comprehensive negotiations between the prosecution and defense on issues such as guilt, conviction, and sentencing, to achieve the active and voluntary guilty pleas by criminal suspects. This system has a high applicability rate and effectively resolves a large number of criminal cases. It is of great significance to absorb and learn from the rationality of the prosecution defense negotiation system, define the negotiation subjects, expand the scope of negotiations, regulate negotiatio n behavior, clarify the consequences of negotiation, and establish a localized prosecution defense negotiation system in China, which is crucial for improving China’s leniency system for guilty pleas and balancing values of justice and efficiency.
Zane Phelps Indigent Defense in Louisville: Conditions for Unionization. The Cardinal Edge
This paper begins by examining the unionization efforts of the Louisville Metro Public Defender Corporation and seeks to link those conditions with national trends to cultivate a rich understanding of why the attorneys are unionizing and what policy solutions they hope to achieve. After surveying the sources of funding and oversight for indigent defense across varying state systems, it synthesizes a policy recommendation wherein federal intervention (National Labor Relations Board), state and local government budgetary oversight and appropriations powers (Kentucky General Assembly, Louisville Metro Council), and the collective bargaining and unionization process (concerted activity), protected by law, are utilized in conjunction to bring the remedies the attorneys desire after.
Alisa Smith, I get Worried with This...Constitutionality by Statistics: A Critical Analysis of Discourse, Framing, and Discursive Strategies to Navigate Uncertainties in the Argersinger Oral Arguments. UCLA Criminal Justice Law Review, 7/1.
Framing and discursive strategies influence the direction of oral arguments and, ultimately, case outcomes, and these strategies benefit dominant interests and sideline marginalized voices. This paper critically evaluates the oral arguments in the 1972 Supreme Court, Argersinger v. Hamlin, decision holding (for the first time) that some misdemeanor defendants were entitled to counsel. The case was argued twice (1971 and 1972) and decided under tremendous uncertainty about its effect, including (1) how many misdemeanor defendants would be affected by the ruling, (2) how lawyers might be recruited for representation, and (3) what kind of impact mandated representation might have on small, rural communities. Drawing on critical discourse analysis, this paper investigates how lexicality and framing shifted questions and arguments that constructed social realities perpetuating and reproducing dominant interests while obscuring and backgrounding non-dominant interests on the scope of the right to counsel. The analysis shows that common legal framing strategies amplified the voices and concerns of the judges, lawyers, and systemic interests while undermining defendants’ interests, particularly in resolving factual uncertainties. Guidance in structuring contemporary arguments to avoid these inequities that result in the unintended marginalizing of constitutional rights is discussed.
Lucy Welsh, Informality in magistrates’ courts as a barrier to participation. International Journal of Law, Crime and Justice.
...I argue that the veil of informality that falls over magistrates’ court proceedings undermines defendants’ abilities to participate in proceedings. Data gathered through observation of magistrates’ court proceedings and follow up interviews with lawyers highlighted that the courtroom workgroup operates as a network perpetuating co-operative behaviours. That data suggests defendants cannot properly participate because a strong culture of workgroup cooperation both informalises the proceedings and obscures their complexity.
Alix S. Winter Matthew Clair
“The roughest form of social work:” How court officials justify bail decisions.
Criminology.
Growing research has analyzed quantitative patterns of bail decisions and outcomes, but we know far less about how court officials justify their bail decisions. To enhance understanding of how bail decisions—and their resulting pretrial outcomes—are generated, we interviewed 104 judges, prosecutors, and public defenders in a northeastern state. Court officials in our study reported three primary justifications at bail: ensuring defendants return to court, preventing crime, and lessening harm. The first two justifications have been suggested in the literature, but the latter is novel and encompasses two secondary justifications: lessening criminal legal system harm and lessening societal harm. We show how these justifications and the decisions they enable blend risk management with rehabilitation and emerge from court officials’ shared assumption of defendants’ social marginality but varied beliefs about what to do about such marginality pretrial. Each justification allows for distinct, but at times overlapping, bail decisions. We discuss the implications of our findings for theories of court official decision-making, research on racial and socioeconomic inequality, and bail reform policy.
Reports
Nicholas M. Pace, Malia N. Brink, Cynthia G. Lee, Stephen F. Hanlon, National Public Defense Workload Study. RAND Corporation.
[From the website:] To create new national public defense workload standards, researchers conducted a comprehensive review and analysis of 17 state-level public defense workload studies conducted between 2005 and 2022 and then employed the Delphi method to facilitate the efforts of a panel of 33 expert criminal defense attorneys from across the country to come to a consensus on the average amount of time needed to provide constitutionally appropriate representation in an array of adult criminal cases.... Based on the consensus of an expert Delphi panel, the average time needed to represent an individual in an adult criminal case ranged from 286 hours to 13.5 hours, depending on case type.
ABA Ten Principles of a Public Defense Delivery System (Revision issued Aug 29, 2023).
[Note especially the new Principle 4:] "Data Collection and Transparency. To ensure proper funding and compliance with these Principles, states should, in a manner consistent with protecting client confidentiality, collect reliable data on public defense, regularly review such data, and implement necessary improvements. Public Defense Providers should collect reliable data on caseloads and workloads, as well as data on major case events, use of investigators, experts, social workers and other support services, case outcomes, and all monetary expenditures. Public Defense Providers should also collect demographic data on lawyers and other employees. Providers should also seek to collect demographic data from their clients to ensure they are meeting the needs of a diverse clientele. Aggregated data should be shared with other relevant entities and made publicly available in accordance with best practices."
Thesis
Lawrence Peterson.
Efficacy of a Single Session Act-Based Intervention for Public Defender Attorneys: A Multiple Baseline Single Case Study. PhD. Thesis, School of Education, State University of New York at Albany.