Notable Recent Publications, July 2025
Articles
Gonzales Rose, J., Bhasin, A., & Piston, S. (2025). Antiracist expert evidence. Yale Law Journal, 134(7), 2362. https://www.yalelawjournal.org/article/antiracist-expert-evidence
Since 2020, when mass protests against racism swept across the United States, scholars, lawyers, and the general public have become increasingly aware that racism permeates society and the criminal legal system, from overt racial animus to the nuanced effects of structural racism. Demonstrating the influence of racism is therefore vital to the practice of criminal defense, yet many attorneys do not know how to prove racism in court. We surveyed over seven hundred criminal-defense attorneys across the United States, and nearly half had never heard of expert witnesses testifying or submitting written reports on racism—what we call “antiracist expert evidence.” This finding would be unremarkable if such experts were unhelpful, but nearly ninety percent of surveyed attorneys expected that antiracist expert evidence would benefit their criminal-defense practices.
This Article is the first to provide an empirical, theoretical, and doctrinal examination of the use of expert testimony to prove racism. It first conceptualizes, categorizes, and instantiates six different expressions, manifestations, or mechanisms of racism relevant to criminal defense: (1) racist affiliations and views; (2) racist language, sounds, and imagery; (3) racial stereotypes; (4) racial disparities; (5) implicit racial bias; and (6) the impact of racism on health and behavior. It next presents and analyzes survey results showing criminal-defense attorneys’ levels of familiarity with antiracist expert evidence, their perceptions of its utility, and the barriers they anticipate to its introduction. This Article then examines these barriers and identifies means of overcoming them. By elevating the voices of criminal defenders and reviewing federal and state case law, we seek to spark the collective imagination about how antiracist expert evidence can help level the evidentiary playing field for criminal defendants.
O'Hear, M., & Wheelock, D. (2025). The Sentencing Advantage of Female Defendants in Homicide Cases. Drake L. Rev., 72, 37. https://heinonline.org/HOL/LandingPage?handle=hein.journals/drklr72&div=4&id=&page=
Sentencing researchers commonly find that female defendants receive more lenient sentences than male defendants, but the precise dynamics driving gender disparities remain elusive. This Article explores the phenomenon of gender-related sentencing disparities using a unique data set comprised of 543 major homicide cases in Wisconsin over a fifteen-year time period. On average, the male defendants received prison sentences that were more than seven years longer than the female defendants. In regression analyses, controls were introduced for criminal history and an unusually rich set of offense characteristics and case processing variables, but sharp differences remained in the sentences for male and female defendants. Indeed, the only covariate that showed an equally large effect size was another gender-related variable, that is, whether the victim was female. The striking role of gender in this study raises questions about the possible influence of gender stereotyping in the sentencing process.
Perlin, Michael and Roitberg Harmon, Talia and Geiger, Maren and Henning, Chelsea, "Tolling for the Outcast": A Therapeutic Jurisprudence Consideration of the Relationship Between the Americans with Disabilities Act, Death Row Conditions, and Capital Punishment (June 27, 2025). Available at SSRN: https://ssrn.com/abstract=5327281 or http://dx.doi.org/10.2139/ssrn.5327281
(shortened) Death-row prisoners are often incarcerated in solitary confinement, and are subject to much more deprivation and harsher conditions than other prisoners. As a result, many experience declining mental health, and it has become clear that persons with mental illness are disproportionately put to death. Some litigants have turned to the Americans with Disabilities Act (ADA) as a potential source of relief; the Supreme Court’s decision in Pennsylvania Department of Corrections v. Yeskey underscored that the act’s language “unmistakably includes State prisons and prisoners in its coverage.
In our paper, we first discuss the relevant aspects of the ADA, describe our methodology, and then assess the individual cases that have sought relief under that law. Next, we examine the denouement of those cases in which a court had preliminarily granted some ADA-based relief (with a separate focus on nitrogen hypoxia-based cases). Further, we consider these issues through the filter of therapeutic jurisprudence (TJ). Here we conclude that it is imperative that the courts and counsel for prisoners weigh the TJ implications of prison conditions that violate the ADA.
Alisa Smith and Sarah K. Stice, No Lawyer, No Jail: A Critical Case Study of Pragmatism and the Flaws of “Purposeful” Decision Making in Argersinger v. Hamlin, 48 SEATTLE U. L. REV. 921 (2025). https://digitalcommons.law.seattleu.edu/sulr/vol48/iss4/6/
By releasing conference notes and internal communications, Supreme Court Justices provide insight into the otherwise private decision-making process, shedding light on how case outcomes and legal reasoning are framed and negotiated. The watershed case of Argersinger v. Hamlin (1972) extended the constitutional right to counsel to some, but not all, misdemeanor defendants. The case was argued twice, and the Court relied on empirical and authoritative sources to answer complex and practical questions about requiring counsel. This case study employs critical discourse analysis to uncover what influenced the Justices’ decisions and how they framed, shaped, and constructed social realities to foreground the values of legal elites at the expense of nondominant interests. Pragmatic considerations and expert authorities emerged as two prominent and discursive strategies that shifted the emphasis, favored the voices and values of legal elites, and narrowed the scope of the right to counsel. Conclusions drawn from these findings show the implications for criminal defendants’ interests and advance the need for future qualitative research that critically scrutinizes the hegemonic influence of legal pragmatism on constitutional decision-making.
Reports, Briefs, and Other Resources
Acie, L. L. (2025). Examining Job Demands and Resources: Predicting Burnout Among Criminal Defense Investigators (Doctoral dissertation, National University). https://www.proquest.com/openview/adaaa614ba092230daea51201833eca2/1?pq-origsite=gscholar&cbl=18750&diss=y
(shortened) Sixty-four percent of the adult workforce will experience burnout during their career. The problem addressed was the lack of knowledge regarding job characteristics that predict burnout among criminal defense investigators. Burnout can have a negative impact on workers and their organization. The purpose of this study was to determine job characteristics that were predictive of burnout among criminal defense investigators. This study consisted of 106 criminal defense investigators employed in public defense throughout the US. The research questions presented were to what extent do job demands and job resources predict exhaustion, cynicism, and inadequacy, respectively. The results imply that increasing job resources can reduce levels of exhaustion, cynicism, and inadequacy. Recommendations for practice include hiring additional staff, assessing workloads, providing positive feedback, increasing growth opportunities, and creating a sense of security. Recommendations for future research are to examine criminal defense investigators in the private sector, perform a principal component analysis on the job demand questions, incorporate additional surveys in addition to the JD-R scale, use a qualitative method and then develop a survey specific to this population, and include an outcome variable such as absenteeism or job satisfaction.
New resource from the Sixth Amendment Center: Paying Attorneys of the Sixth, which has all the compensation rates in every jurisdiction, including federal and territory: https://6ac.org/paying-attorneys-of-the-sixth/.
