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Notable Recent Publications, May 2024

 Notable Recent Publications features the latest empirical research and data related to indigent defense. If you have suggestions, ideas for work that should be included, or trouble accessing any of the articles featured, please write to Venita Embry at vembry@rti.org. 

Recordings of IDRA Spring 2024 Virtual Conference

The recordings of all of the recorded panels from the Virtual Conference May 1st through 3rd are now available in a playlist here:

https://www.youtube.com/playlist?list=PL-x1JglqDoemjDH0Gm793eitWekd-Fb2O

Not all panels were recorded depending on panelist’s preferences, but all the others are included in this playlist. 

Articles

Mikaela Wolf-Sorokin, Liz Bradley & Whitney Viets, Padilla’s Broken Promise: Pennsylvania Case Study, 26 U. Pa. J. Const. L. 1046 (2024). Available at https://scholarship.law.upenn.edu/jcl/vol26/iss4/4/

In 2010, the Supreme Court held in Padilla v. Kentucky that criminal defense attorneys have a constitutional obligation to advise noncitizen clients of the immigration consequences of a guilty plea in criminal court proceedings. Though it has been over a decade since the decision, little research has been done regarding Padilla’s implementation by defense counsel on a statewide level. This Article provides findings from a case study on Padilla advising in Pennsylvania. Pennsylvania is unique because its state courts have interpreted Padilla narrowly and permit immigration advisals that would be deemed constitutionally deficient in other jurisdictions. Pennsylvania also does not have a state-funded public defense system, which means standards for indigent representation vary by county.

Interviews with public defenders and prosecutors in Pennsylvania reveal significant variation in the scope of advice provided to noncitizens in criminal court proceedings and the willingness of district attorney offices to consider immigration status during plea negotiations. Based on these findings, this Article offers various policy recommendations that would improve the criminal defense representation of noncitizens in Pennsylvania. While these findings and recommendations are specific to Pennsylvania, they are relevant to nationwide research on Padilla’s impact and what can be done to promote immigration-conscious criminal defense advocacy.

 

Wu, Y., & Li, S. (2024). Equality in Representation? The Efficacy of Court-Appointed Lawyers in the Chinese Criminal Courts. Asian Journal of Criminology, 1-19. https://doi.org/10.1007/s11417-024-09428-y

This study examines the effectiveness of court-appointed lawyers in comparison to private attorneys within China’s criminal justice system, focusing on the “Lawyers for All” program. Utilizing data from Guangdong courts between 2018 and 2021 and covering five types of crimes, the research employs propensity score matching to evaluate sentencing lengths and probation rates. The findings indicate that defendants represented by court-appointed lawyers typically receive shorter sentences than those with private counsel, but they are less likely to be granted probation. Additionally, an innovative metric—“actual time served in prison”—suggests a reduced incarceration period for defendants with court-appointed attorneys. The study proposes that the collaborative role of court-appointed lawyers within the Chinese courtroom workgroup potentially influences these outcomes, contrasting with the adversarial nature of private attorneys. This analysis contributes to the broader understanding of legal representation in authoritarian regimes, highlighting the unique dynamics within China’s legal system.

Reports

Berkeley Law Death Penalty Clinic. Guess Who’s Coming to Jury Duty?: How the Failure to Collect Juror Demographic Data Contributes to Whitewashing the Jury Box (2024). https://www.law.berkeley.edu/experiential/clinics/death-penalty-clinic/projects-and-cases/failure-to-collect-juror-demographic-data-contributes-to-jury-whitewashing/

This report continues the clinic’s racial justice research and advocacy by cataloging the states that gather prospective jurors’ self-identified race and ethnicity and those that do not. It examines what courts do with the information, including whether it is provided to the court and counsel for use during jury selection, and the consequences of these choices in furthering or obstructing jury representativeness and diversity. In particular, the report shows why the collection of prospective jurors’ self-identified race and ethnicity is vital to meeting state and federal fair cross-section guarantees and eliminating the discriminatory exercise of peremptory challenges.


Malia N Brink, Pamela R Metzger, Claire Buetow & Terrence Cain, Ending Arkansas’ First Appearance Crisis (2024), https://doi.org/https://doi.org/10.25172/dc.12

Arkansas law is clear: every arrested person has the right to an attorney’s help the first time they see a judge. But across the state, people often face a judge at first appearance without a lawyer by their side. Even worse, a shortage of attorneys means people sometimes wait months for a lawyer’s help. The Constitution promises that every person in jail will have access to the courts and to counsel. Yet far too often, Arkansas allows people to languish in jail alone, afraid, and undefended.

This policy brief outlines research-based solutions for Arkansas to honor the Constitution’s promises by guaranteeing counsel at first appearance, ensuring appointment of defense counsel within 72 hours of arrest, and adequately funding public defense. These reforms can end the first appearance crisis, reduce court backlogs, and ease jail overcrowding.


The Gault Center. A Tale of Two Systems:  An Assessment of Access To & Quality of Youth Defense Counsel in Utah (2024). https://www.defendyouthrights.org/document/a-tale-of-two-systems-an-assessment-of-access-to-quality-of-youth-defense-counsel-in-utah/

The Utah assessment is the 29th statewide assessment of youth defense delivery systems the Gault Center has conducted. These assessments gather information and data about the structure and funding of defense systems and examine whether youth receive counsel at all critical stages, the timing of appointments, waiver of counsel, youth defense resource allocation, supervision and training, and access to investigators, experts, social workers, and support staff. Reports note promising practices within a state and offer recommendations for improvements.


Jacquelyn Pavilon, Neil Agarwal, Rosie Wang, and Pierina Hernandez Luperdi, Evaluating the Impact of the Midwest Immigrant Defenders Alliance (New York: Vera Institute of Justice, 2024).   https://www.vera.org/downloads/publications/Evaluating-the-Impact-of-the-Midwest-Immigrant-Defenders-Alliance-Report.pdf

The Midwest Immigrant Defenders Alliance (MIDA) is a coalition formed in March 2022 by four organizations that have come together to provide high-quality immigration legal services for people facing deportation in immigration court in Chicago: The National Immigrant Justice Center (NIJC), The Resurrection Project (TRP), The Immigration Project (TIP), and the Law Office of the Cook County Public Defender (CCPD). During the first year of MIDA’s formation, these organizations, which had individually been working to advance access to counsel for people in immigration proceedings, developed a collaborative model to provide legal representation on a merits-blind basis to people in immigration detention and docketed at the Chicago immigration court.1 The goal of this collaboration is to scale up to a universal representation program that would reach everyone on the Chicago “detained” docket, which hears cases of people detained across four states in the Midwest: Illinois, Indiana, Kentucky, and Wisconsin.2 In year one, MIDA organizations only served clients in immigration detention due to capacity constraints, but with increased resources, the MIDA model could be expanded to reach all people before the Chicago immigration court in the future, including people not in immigration detention.