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.
Articles
Duhart Clarke, S. E., Zottola, S. A.,
McKinsey, E., Kurtz, B., Shao, T. T., Morrissey, B., & Desmarais, S. L.
(2024). Indigent Injustice: A Systematic Review and Meta-analysis of People’s
Criminal Legal Outcomes. Critical Criminology, 1-41.
The United
States Constitution guarantees every citizen access to counsel to fundamentally
preserve the right to a fair trial. Over two-thirds of criminal defendants lack
the resources to secure an attorney and are thereby deemed indigent by the
court. The dearth of generalizable data for indigent defendant outcomes leads
legal scholars to cite the pragmatic and theoretical mechanisms for evaluating
the effectiveness, or lack thereof, of publicly funded defenders. Empirical
evidence is restricted by studies conducted in specific jurisdictions and on
particular stages within criminal processing. Consequently, a broad
understanding of indigent defendants’ outcomes is limited and often disjointed;
thus, underscoring the need for a systemic evaluation of the current empirical
literature. The goal of the current study was to conduct a meta-analysis on
studies of outcomes for people with public defenders, assigned counsel, and
retained attorneys to better understand what (if any) discrepancies exist in
criminal legal outcomes as a function of indigent defense status. Specifically,
this study examined the current empirical literature on pretrial, case,
sentencing, and post-case outcomes for indigent defendants compared to
defendants with private/retained attorneys and for those with public defenders
compared to assigned counsel. Overall, results showed that indigent defendants
experience worse outcomes across court processing stages than defendants with
retained counsel. Results showed fewer discrepancies between defendants with
public defenders and assigned counsel. Findings suggest that the disadvantages
indigent defendants experience in criminal legal outcomes are likely an effect
of systemic and individual biases rather than a consequence of ineffective
counsel.
Reports
Campos-Bui, S., Wallace, R., &
Virani, A. (2024). LARGELY UNCHANGED. https://www.law.berkeley.edu/wp-content/uploads/2024/06/UCLAxUCB-2024-Largely-Unchanged_WEB_Pages.pdf
In 2022, we
released our report, “Coming Up Short: the Unrealized Promise of In re
Humphrey.” In that report, we analyzed the impact of the Humphrey decision on
the behavior of various system actors and the jail population to understand
whether the decision was having its intended effects. Our analysis found that
there was no evidence that Humphrey resulted in a net decrease of the pretrial
jail population in California, a decrease in median bail amounts, or a decrease
in the average length of pretrial detention.
Further, we found that the case influenced criminal legal system actors’ behavior in a variety of ways. Judges were misinterpreting Humphrey, leading to dire consequences, such as an increase in no bail holds (holding someone in pretrial detention without setting cash bail). Defense attorneys reported that they were often dissuaded from raising Humphrey arguments and that they faced increased and new procedural hurdles post-Humphrey. Prosecutors’ offices responded inconsistently to the decision and were also encouraging the use of no bail holds. Probation departments began sharing more information with courts pretrial and proactively resourced the increased use of pretrial release conditions and probation supervision as a result of Humphrey.
Jones, L. (2024). Ability to Pay: Closing
the Access to Justice Gap with Policy Solutions for Unaffordable Fines and
Fees. National Center for Access to Justice. https://ncaj.org/sites/default/files/2024-06/Ability%20to%20Pay%20Report%20Final%20May%202024.pdf
Building on
NCAJ’s Fines and Fees Justice Index—an online tool that ranks states based on
their degree of adoption of policies that curb abusive fines and fees
practices—NCAJ set out to find examples of states that provide especially good
protection for people, focusing on states’ requirements and procedures for
determining ability to pay. NCAJ did a deep dive into the laws on the books for
each state that received credit in its Fines and Fees Justice Index for
benchmarks that touch on ability to pay; researched caselaw in each state that
requires judges to make ability to pay determinations; completed an extensive
literature review of writings and studies on ability to pay practices in fines
and fees cases across the country; analyzed bench cards that provide guidance
to judges about setting fines and fees; and interviewed practitioners across
the country.
Based on this analysis, NCAJ found that no state or locality is doing well, overall, when it comes to determining ability to pay. We did, however, find examples of laws and practices – policy models – that stand out as worthy of consideration for evaluation and for possible replication because they appear to be more protective, as compared to those in other states. In this report, we have gathered the policy models that impressed us as worthy of additional consideration and evaluation.
Nyffeler, K. (2024). Ethics in Law and
the Effects on Mental Health: An Interview Study. https://digitalcommons.unomaha.edu/university_honors_program/309/
On August 2,
1983, The American Bar Association Model Rules of Professional Conduct were
adopted by the House of Delegates. This set of rules provides legal
professionals with the guidance needed to uphold the rule of law and to
preserve justice. In this set of rules, lawyers learn the duties of
confidentiality, client relations, diligence, and the overall conduct owed to
the courts. Furthermore, these duties can be demanding and oftentimes
challenging. Therefore, this study examined the different ethical rules as they
apply to lawyers and how these demands can impact their mental health.
Interviews were conducted with six lawyers in Nebraska to help provide a
first-person point of view. This study concluded that rather than the demands
that follow the ethical standards of lawyers, it is the heavy workload and
stressful environment that has the greatest potential to lead to mental health
concerns.