Introduction to Special Issue: New Developments in Public Defense Research

System Interventions: Evaluating Programs and Identifying Opportunities

Harris’s (2020) “Building Holistic Defense: The Design and Evaluation of a Social Work Centric Model of Public Defense” advances empirical analysis of holistic defense by evaluating a pilot program initiated by social workers in Santa Barbara, CA, for associations with reduced incarceration and recidivism. As Harris explains, holistic defense targets the underlying needs of defendants such as housing, employment, and mental health services that often correlate with poverty and involvement in criminal legal systems. Harris’s analysis suggests at least partial success: Rates of dismissal were significantly higher and sentences shorter for program enrollees compared with a matched sample, while recidivism at 6 months was unchanged. Urging researchers to build on the few extant studies of holistic defense, Harris sketches two innovative frameworks for analysis. First, she connects the historical development of holistic defense to partnerships between the emerging social work and legal aid professions in the Progressive Era. Second, she draws on the concept of “hooks for change” (Giordano et al., 2002) to suggest a fruitful approach for examining how holistic defense works.

In “The Impact of Counsel at First Appearance on Pretrial Release in Felony Arraignments: The Case of Rural Jurisdictions”, Worden et al. (2020) examine differences in pretrial release decisions in felony cases in two rural jurisdictions in upstate New York following the introduction of a program to provide counsel at defendants’ first appearances in court (CAFA). The analysis reveals a contrast between the two jurisdictions studied. In one, CAFA was associated with a clear shift toward more favorable rates of release for defendants. In the other, changes were less detectable and more ambivalent. These findings trouble the almost uniform conclusions of prior studies that CAFA increases defendant liberty. Pointing to the influence of local justice system cultures, the authors raise important questions. Why might CAFA not have the expected effect of increasing pretrial release rates? What types of judges, courtrooms, and cultures are more or less likely to show effects from CAFA? Given the number and diversity of rural jurisdictions nationwide, what confidence should be put in the results of prior studies focused almost exclusively upon urban jurisdictions? The authors suggest that future research should attend to urban/rural and other contextual differences that include courtroom workgroup variations.

Vartkessian (2020) in “Including Assets-Based Mitigation in Sentencing” examines the degree to which U.S. state sentencing laws promote investigation and advocacy around a defendant’s “assets” versus his or her “deficits.” She notes that these laws often focus on crime facts such as the defendant’s remorse or limited role, or on defendant deficits such as mental health problems or other disabilities. Vartkessian finds that it is rare for statutes to promote investigation and advocacy regarding defendant assets such as good character and prosocial engagement, and rarer still for statutes to define which assets are of interest. Arguing that sentencing policy is both fairer and more accurate when assets are considered, she identifies model language in Utah’s statute for accomplishing that goal and urges researchers to examine whether and how practitioners exploit sentencing frameworks to do so.

Juxtaposed, these studies offer a number of novel insights. First, they signal an untapped potential for defenders to exert policy influence and reduce incarceration by exploiting opportunities to expand and strengthen advocacy. Those opportunities, in turn, open new research questions. For example, Vartkessian’s analysis of sentencing laws invites inquiry into regulatory frameworks that shape defense advocacy in other key phases, such as pretrial release, investigation and discovery, and introduction of evidence.

At the same time, these authors also identify roadblocks to sustainable reform, ranging from tension between system disruption and equilibration to the need for improved data and better analytic methods to advance research. And where these studies fail to replicate prior findings, they complicate existing theoretical understandings and invite new analyses. Taken together, they indicate that more comprehensive evaluations can shed additional light not only on ways that defenders can shape case outcomes, defendants’ lives, and broader system structures but also on points of resistance that impede improved policies and practices. As indicated by the remaining four papers in this symposium, such research can be enriched by tapping perspectives of key stakeholders—in part, by considering such input in determining future research priorities and project design (J. Moore & Davies, 2017).

Understanding Decision Makers

Hussemann and Siegel (2019) in “Decision-Making & Holistic Public Defense Post-Montgomery vs. Louisiana” examine Michigan’s response to Supreme Court decisions that limit imposition of life without parole sentences for juveniles. Through qualitative interviews with attorneys, judges, parole board members, advocates, and paroled juvenile lifers, the authors identify factors that influence resentencing and reentry. Six domains emerge as important in resentencing (a) juveniles’ institutional records, (b) their psychological and emotional well-being, (c) their existing social support networks, (d) statements by victim family members, (e) political considerations, and (f) the existence and adequacy of reentry plans. Factors shaping reentry include pre- and post-release access to programming in education, job training, and health care; holistic, long-term support to maintain stable housing, employment, and counseling services; and opportunities to network with other released juvenile lifer peers. The researchers conclude that public defenders and social workers can collaborate to address many of these factors in promoting release and successful reentry. They urge further research in other states and on juveniles who remain incarcerated.

J. Moore et al. (2020) in “Attorney-Client Communication in Public Defense: A Qualitative Examination” draw on data from people who need public defense to probe descriptive theory of attorney–client communication. They offer an important theoretical innovation by combining procedural justice theory (PJT) á la Tyler and Casper (Casper et al., 1988) with Silbey’s legal consciousness theory (LCT; Silbey, 2005). The authors find that PJT accounts well for the importance of timely, substantive, and iterative communication. However, the fourth theme of defendant agency shifts the focus from PJT’s concern for defendant satisfaction and compliance to highlight the role of client dissatisfaction, empowerment, and even disruption of courtroom workgroup case processing. The authors conclude that LCT offers a better theoretical account than PJT for the presence and significance of these factors. Questions for future research include whether and how client feedback and attorney training can expand and improve the often limited communication between attorneys and clients in public defense systems.

Baćak et al. (2020) in “‘Fighting the Good Fight’: Why Do Public Defenders Remain on the Job?” interviewed public defense attorneys about their motivations to work in the field despite its various challenges. They distinguish intrinsic motivations (helping clients, defending the U.S. Constitution, reducing social inequality, and satisfying personal values) and extrinsic ones (camaraderie with colleagues and employee benefits packages). Pointing to evidence that experienced defenders have been shown to obtain better outcomes for their clients, they urge researchers to focus closely on the question of how to retain skilled defenders, and press specifically for further study of changes in motivation over time and across system, geographic, and demographic types.

Davies et al. (2020) in “Unique New York? Theorizing the Impact of Resources on the Quality of Defense Representation in a Deviant State” tackle two fundamental issues in defense policy: First, the contention that available resources almost never meet the need for services; second, what outcome metrics are appropriate to capture defense “quality.” Framing their inquiry around M. Moore’s (1995) “public value” theory, the authors identify six areas for evaluation: attorney services, client experiences, court outcomes, client life outcomes, court impacts, and community impacts. They interviewed chief public defenders in upstate New York about the likely impact of new resources aimed at bringing caseloads into compliance with national standards. The authors conclude that these chief defenders were neither as idealistic as proponents of the new funding nor as pessimistic as functionalist accounts that portray defense practitioners as weak and ineffectual reformers.

A striking connection among these four papers is the intensity with which commonly held values and priorities are expressed, including around the importance of attorney–client relationships. Supporting Harris’s invocation of the “hooks for change” concept in studies of holistic defense, a released juvenile lifer told Husseman and Siegel that his ongoing relationship with Michigan’s holistic defense team was “lifesaving” and “like family.” One defender got “choked up” talking to Baćak et al. about how central client relations were to job satisfaction. Defendants in Moore et al.’s study often expressed longing for such relationships and empathy for overstretched defenders who could not provide them—and did so even after interrupting court proceedings to tell uncommunicative counsel “You’re fired.” And chief defenders in rural New York expected increased resources would address clients’ “number one complaint . . . that we don’t spend enough time with them.”

Additional implications include the real need for defenders to be supported if they are going to survive on the job. They need to feel their work is worthwhile and making a difference, or those with alternatives simply won’t do it any longer. Ironically, defenders may be less receptive to clients’ desires to exercise control over their own fates, including by pushing back on defenders themselves. Joined with insights from the three “System Intervention” papers in this symposium, additional implications cluster around ways that defenders can improve the accuracy and justice of case outcomes.

More specifically, these papers highlight opportunities for defenders to emphasize defendant strengths and potential for positive growth in all phases of representation from the initial interview through pretrial release, sentencing, and post-conviction and reentry advocacy and support. Conversely, this symposium underscores concerns that resource deficits and other impediments will prevent expansion of the holistic models that appear to promote such advocacy, and instead allow criminal legal systems to continue processing defendants as cases involving little more than undifferentiated members of a punishable class. For researchers, investigating these possibilities requires attention to diversities in local cultures, courtroom workgroups, and individual personalities—which factors in turn raise concerns regarding incrementalism, cooptation, and likely disappointment as systems absorb and equilibrate around reform-oriented interventions.

In the end, a distinctive set of political, social, and economic realities shapes public defense. Serving unpopular defendants and often funded by cash-strapped local governments, defense occurs within impinging structures that are both internal and external to the courtroom. Perhaps for that reason, Davies et al.’s (2020) suggestion that we characterize the “value” of defense to include not only changes to case outcomes but also changes to system culture generally is well taken. But seen in that light, the progress documented in this collection of papers warrants close attention. Certainly, the research presented here sheds light on only a fragment of what passes for defense work across the United States. This symposium does not represent the national picture broadly—a picture in which resources to conduct research in the defense function are scarce or nonexistent (J. Moore & Davies, 2017). But these papers do identify places across the United States where there is interest in knowing how to do defense better; opportunity to study the impact of new ideas; contemplation of how defense shapes court decisions and how those changes shape defendants’ lives; and recognition of the defense function as a mode of both Constitutional rights compliance and as an agent of change in the justice system.

We hope that this symposium inspires others to consider where the value of public defense lies, and how to examine and assure that value in the United States and internationally. We do not take for granted that all readers will find the defense function a sympathetic one, but we do aim to persuade some that it is at least interesting, distinctive, and essential in justice systems. The papers in this special issue of CJPR raise many large questions about defense; though our authors are in some sense pioneers, their answers are often incomplete. We hope that others will join us in our continued exploration.