By Brandon L. Garrett and Gregory Mitchell

William Blackstone famously expressed the view that convicting the innocent constitutes a much more serious error than acquitting the guilty. This view is the cornerstone of due process protections for those accused of crimes, giving rise to the presumption of innocence and the high burden of proof required for criminal convictions. While most legal elites share Blackstone’s view, the citizen jurors tasked with making due process protections a reality do not share the law’s preference for false acquittals over false convictions.

Across multiple national surveys sampling more than 12,000 people, we find that a majority of Americans consider false acquittals and false convictions to be errors of equal magnitude. Contrary to Blackstone, most people are unwilling to err on the side of letting the guilty go free to avoid convicting the innocent. Indeed, a sizeable minority view false acquittals as worse than false convictions; this group is willing to convict multiple innocent persons to avoid letting one guilty person go free. These value differences translate into behavioral differences: we show in multiple studies that jury-eligible adults who reject Blackstone’s view are more accepting of prosecution evidence and are more conviction-prone than the minority of potential jurors who agree with Blackstone.

These findings have important implications for our understanding of due process and criminal justice policy. Due process currently depends on jurors faithfully following instructions on the burden of proof, but many jurors are not inclined to hold the state to its high burden. Courts should do away with the fiction that the reasonable doubt standard guarantees due process and consider protections that do not depend on jurors honoring the law’s preference for false acquittals, such as more stringent pretrial screening of criminal cases and stricter limits on prosecution evidence. Further, the fact that many people place crime control on par with, or above, the need to avoid wrongful convictions helps explain divisions in public opinion on important policy questions like bail and sentencing reform. Criminal justice proposals that emphasize deontic concerns without addressing consequentialist concerns are unlikely to garner widespread support.

121 Mich. L. Rev. 707 (2023).

By Ronald Wright and Jenny Roberts

This review collects and critiques the academic literature on criminal defense lawyering, with an emphasis on empirical work. Research on criminal defense attorneys in the United States has traditionally emphasized scarcity of resources: too many people facing criminal charges who are “too poor to pay” for counsel and not enough funding to pay for the constitutionally mandated lawyers. Scholars have focused on the capacity of different delivery systems, such as public defender offices, to change the ultimate outcomes in criminal cases within their tight budgetary constraints. Over the decades, however, theoretical understandings of the defense attorney’s work have expanded to include client interests outside the criminal courtroom, reaching the broader social conditions connected to the alleged criminal act. Researchers have responded by asking a broader range of questions about the effectiveness of defense counsel outside the courtroom and by using improved data to study the effectiveness of lawyers at discrete procedural stages.

Annu. Rev. Criminol. 2023. 6:241–64

By SE Duhart Clarke

The right to an attorney in criminal cases is a constitutional right covered under the Sixth and Fourteenth Amendments of the United States Constitution and is considered fundamental to a fair trial. Over two-thirds of criminal court defendants in the United States are unable to afford their own counsel and thus have an attorney given to them by the court (i.e., indigent defendants). Many legal scholars have debated the effectiveness of indigent defense counsel compared to privately retained counsel. However, in the absence of synthesized data on outcomes for indigent defendants, legal scholars commonly cite the pragmatic and theoretical mechanisms for publicly funded defenders’ limitations or strengths to support their arguments about the effectiveness of indigent defense counsel. When empirical evidence on outcomes for indigent defendants is used to support an argument, the research cited is often limited to studies conducted in specific jurisdictions on a specific step in court case processing. Consequently, our overall understanding of outcomes experienced by indigent defendants is limited and disjointed, underscoring the need for a systematic evaluation of the current empirical literature. The goal of the study in this dissertation was to conduct a systematic literature review and meta-analysis on outcomes for defendants with public defenders, defendants with assigned counsel, and defendants with retained attorneys to better understand what (if any) discrepancies exist in criminal justice-related outcomes as a function of indigent defense status. Specifically, this study examined the current empirical literature on pretrial outcomes, case outcomes, sentencing outcomes, and post-case outcomes for indigent defendants compared to defendants with private/retained attorneys and/or public defenders compared to assigned counsel.

 Raleigh NC: North Carolina State University, 2021.112p.

By The American Bar Association, Standing Committee on Legal Aid and Indigent Defense and Moss Adams LLP

The Standing Committee on Legal Aid and Indigent Defense (SCLAID) has jurisdiction over matters related to the creation, maintenance, and enhancement of effective civil legal aid and criminal indigent defense delivery systems and services, including by: (a) advocating for meaningful access to the justice system for all; (b) supporting viable and effective plans to increase funding for legal aid and indigent defense delivery systems and services; and (c) developing standards and policy, disseminating best practices, and providing training and technical assistance.

The American Bar Association Standing Committee on Legal Aid and Indigent Defense (ABA SCLAID) and Moss Adams LLP (Moss Adams) conducted this study on behalf of the Law Offices of the Public Defender of the State of New Mexico (LOPD) to analyze public defense historical caseloads for the State of New Mexico, to calculate the average amount of time attorneys should spend on specific case types to meet the minimum standards for representation, and then to compare the two to determine whether a deficiency of resources exists. This study is referred to as the New Mexico Project. The New Mexico Project consisted of two main phases: (1) an analysis of the New Mexico public defense system’s historical staffing and caseloads; and (2) the application of the Delphi method. The Delphi method is an iterative process used in this study to identify how much time an attorney should spend, on average, in providing representation in certain types of criminal cases. In determining the amount of time an attorney should spend to meet the minimum standards for representation we are guided by the legal standard set out in Strickland v. Washington: “reasonably effective assistance of counsel pursuant to prevailing professional norms.”1 The prevailing professional norms, which anchor the Delphi process, are the Rules of Professional Conduct, the ABA Criminal Justice Standards, and the applicable national and local attorney performance standards. The Delphi method’s structured and reliable technique incorporates the input, feedback, and opinions of highly informed professionals to develop consensus on a specific question. The New Mexico Project consisted of three different Delphi panels: Adult Criminal, Juvenile and Appeals. Participants in each panel were selected based on their substantive expertise and experience in these areas. Participants included public defenders, contract attorneys, and private defense practitioners, and they were approved by independent Selection Panels. Each Delphi area was sub-divided into Case Types and Case Tasks, and further divided by Resolution (e.g. plea/otherwise resolve v. go to trial). For each Case Task in each Case Type, participants are surveyed about the amount of time the task takes and the frequency with which it occurs. The Delphi process in New Mexico consisted of two rounds of online surveys, taken independently. The second-round survey was completed only by those who participated in the first round and included a summary of the responses from the first round for second round participants to consider. A third survey was then conducted in a live group setting only by those who had completed the first and second survey rounds. These participants met over a series of days to review the results of the second survey and developed a professional consensus regarding the appropriate amount of time an attorney should spend on a series of case tasks for each case type2 to provide reasonably effective assistance of counsel pursuant to prevailing professional norms in the State of New Mexico. The result of the Delphi process is the consensus of the expert panel on the Frequency and Time needed to complete each Case Task in compliance with applicable standards, as well as Resolution – the percentage of cases that should plead/otherwise resolve v. go to trial. These consensus decisions are then used to calculate the Delphi result, the time needed for a public defense attorney to provide reasonably effective assistance of counsel to a client in an average case of this Case Type. Applying the Delphi results to historical caseloads, we can determine the total number of hours of public defense attorney time needed in the jurisdiction. Further, we can compare the hours of attorney time currently available in the jurisdiction’s public defense system to the hours needed to determine if the current system has a deficiency or excess of attorney time and the amount of that deficiency or excess.

Chicago: American Bar Association, 2022. 88p.

By Gabriel Petek

Individuals charged with a crime have a right to effective assistance of legal counsel under the U.S. and California Constitutions. This is to ensure they receive equal protection and due process under the law. The government is required to provide and pay for attorneys for those individuals who are unable to afford private attorneys. This is known as “indigent defense.” Importance of Effective Indigent Defense. In addition to being a constitutional right, effective indigent defense in criminal proceedings can help mitigate or eliminate major consequences that defendants face regardless of whether they are convicted, such as losing a job due to being held in jail until their case is resolved. Effective indigent defense can also help ensure that all individuals are treated equitably in criminal proceedings, particularly lower-income individuals and certain racial groups who are at greater risk of experiencing serious consequences from being involved in the criminal justice system. Counties Primarily Responsible for Indigent Defense. In California, counties are primarily responsible for providing and paying for indigent defense. However, recent litigation suggests that the state could be held responsible for ensuring that effective indigent defense is being lawyerprovided. Indigent defense is generally provided in a combination of three ways: (1) public defender offices operated by the government, (2) private law firms or attorneys that contract with the government to provide representation in a certain number of cases and/or over a certain amount of time, or (3) individual private attorneys who are appointed by the court to specific cases. The actual provision of indigent defense services, however, varies by county. State Lacks Information to Assess Indigent Defense Service Levels. The state currently lacks comprehensive and consistent data that directly measures the effectiveness or quality of indigent defense across the state. This makes it difficult for the Legislature to ensure effective indigent defense is being provided. Analysis of Limited Data Raises Questions About Effective Provision of Indigent Defense. In the absence of consistent statewide data and metrics more directly measuring the effectiveness or quality of indigent defense, we analyzed limited available data comparing funding, caseloads, and staffing of indigent defense providers with district attorneys who prosecute cases, allowing for a rough, indirect assessment of existing indigent defense service. The identified differences are notable enough that they raise questions about the effective provision of indigent defense in California. For example, in 2018-19, spending on district attorney offices was 82 percent higher than on indigent defense. Recommend Three Key Steps for Legislative Action. We recommend three key steps that the Legislature could take to ensure it has the necessary information to determine whether a problem exists with indigent defense service levels, what type of problem exists, and how to effectively address such a problem. Specifically, we recommend the Legislature: (1) statutorily define appropriate metrics to more directly measure the quality of indigent defense; (2) require counties collect and report data to the state’s Office of the State Public Defender; and (3) use the data to determine future legislative action, such as identifying whether resources are needed to ensure effective indigent defense as well as how such resources could be targeted to maximize their impact

Sacramento: Legislative Analyst's Office, 2022. 28p.

by Duren Banks, Lynn Langton, Madison Fann, Michael G. Planty, Michael J. D. Vermeer, Brian A. Jackson, Dulani Woods

The systems that provide counsel for indigent adult and juvenile defendants in the United States vary considerably across states, localities, and judicial jurisdictions. In addition to the challenges associated with the myriad systems for providing indigent defense, there are other inherent challenges to providing effective defense counsel. These challenges include a lack of sufficient resources in general, access to investigators and other support staff, workload standards and other standards to support effective representation, strategies to support the recruitment and retention of quality counsel dedicated to indigent defense, and specialized training and other needs related to the provision of public defense with certain clients or cases.

On behalf of the National Institute of Justice, RTI International and RAND Corporation researchers conducted an environmental scan to develop a set of information gaps or research priorities that, if addressed, could advance knowledge around effective indigent defense strategies. In the scan, the researchers (1) explored the literature around the needs of the indigent defense field, (2) obtained input from leading practitioners through individual interviews, group discussion, and interactive feedback, and (3) reviewed the priorities of federal and private research and practitioner organizations.

Key Findings

• There is a lack of basic descriptive data about indigent defendants (e.g., which defendants have lawyers representing them and which are deprived of lawyers).

• Many jurisdictions are not equipped to provide pre-court or pre-charge representation.

• Excessive caseloads have an impact on the quality of representation, the ability to adhere to professional practice standards, and client-attorney relationships; that impact is not well understood.

• In some jurisdictions, there is limited or no access to attorneys with the qualifications, experience, and desire needed to represent people in criminal cases who are unable to afford counsel.

• In many jurisdictions, particularly rural communities, there is limited or inconsistent access to the nonattorney case support needed to provide quality indigent defense representation.

• It is difficult to hire qualified and diverse indigent defense attorneys.

• Because of the differing systems for assigning counsel across the United States, many defendants who are accused of misdemeanors or other lower-level crimes do not receive the assistance of counsel when facing pretrial detention or fines, fees, or other penalties associated with a guilty plea.

• There is a lack of understanding about the extent to which the racial, cultural, and socioeconomic backgrounds of indigent defense attorneys affect the experiences of the clients they serve.

• Emerging research shows that holistic defense strategies, which address co-occurring and collateral factors associated with criminal cases, hold promise for advancing justice and improving outcomes for individuals and communities.

Recommendations

• Require courts to collect descriptive data on which defendants have representation; leverage this information to answer research questions.

• Assess innovative options used in some jurisdictions to provide earlier access to a lawyer.

• Examine areas with different levels of caseloads and examine the differences across a broad variety of outcomes and impacts and for different types of clients and cases.

• Conduct research that offers a more nuanced understanding of the administration of indigent defense in small, rural areas.

• Conduct research to identify the impacts of nonattorney case support on case outcomes.

• Explore strategies for expanding access to paraprofessional expertise.

• Study other systems that are working well.

• Conduct research on the scope of rules, practices, and resource decisions that limit access to counsel.

• Obtain client perspectives on differences in the level and quality of representation received through public defense and noninstitutional representation systems; focus on reducing those differences.

• Conduct research to identify the full scope of issues that make it difficult to recruit qualified and diverse attorneys.

• Develop undergraduate and law school internship programs and defense counsel pipelines.

• Evaluate training opportunities; determine whether training is effective and under what circumstances.

• Conduct research on the complexities that public defense attorneys face and the support and resources needed to successfully manage these complexities.

• Engage with defendants to get their perspectives on what quality counsel means and how it is operationalized.

• Conduct research to connect outcomes with what indigent defense attorneys are doing to understand the types of engagement that are most effective.

• Santa Monica, CA: RAND, 2023. 20p.

by Nicholas M. Pace, Malia N. Brink, Cynthia G. Lee, Stephen F. Hanlon

Public defense attorneys with excessive caseloads cannot give appropriate time and attention to each client. Excessive caseloads violate ethics rules and inevitably cause harm. Overburdened attorneys are forced to choose cases or activities to focus on, such that many cases are resolved without appropriate diligence. A justice system burdened by triage risks unreliability, denying all people who rely on it — victims, witnesses, defendants, and their families and communities — efficient, equal, and accurate justice.

Ethics rules require lawyers to limit their workloads to ensure competent representation. But what should those limits be? Clear standards for public defense workloads are essential to policymakers' ability to fund and staff the defense function at appropriate levels, to public defense authorities' ability to conduct appropriate oversight, and to attorneys' ability to provide their clients with reasonably effective assistance of counsel pursuant to prevailing professional norms as guaranteed by the Sixth Amendment to the U.S. Constitution.

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.

Key Findings

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

• High-severity felony cases required the most time, on average: cases with a possible sentence of life without parole, 286 hours; murder cases, 248 hours; sex crimes cases, 167 hours; and other high-severity felony cases, 99 hours.

• Mid- and low-severity felony cases required an average of 57 and 35 hours, respectively.

• High- and low-severity cases for driving under the influence required 33 and 19 hours, respectively.

• High- and low-severity misdemeanor cases required an average of 22.3 and 13.8 hours, respectively.

• Probation or parole violation cases required an average of 13.5 hours.

Existing national public defense workload standards are outdated, not empirically based, and inadequate

• The 1973 National Advisory Commission on Criminal Justice Standards and Goals (NAC) standards fail to differentiate among types of felonies, giving equal weight to a burglary, a sexual assault, and a homicide.

• Using the 1973 NAC standards creates a risk of excessive workloads.

New national workload standards better reflect modern criminal defense practice and professional and ethical responsibilities

• The new standards reflect expert attorneys' experiences with current criminal defense practice, including digital discovery and forensic evidence, as well as the expanded scope of a criminal defense lawyer's obligations, including advising clients on collateral consequences.

• The new workload standards can be used to assist public defense agencies, policymakers, and other stakeholders in evaluating defender workloads.

Santa Monica, CA: RAND, 2023. 186p.

By Brian J. Ostrom and Jordan Bowman

Since Gideon v. Wainwright, the provision of an attorney to a criminal defendant is an accepted constitutional right. The past 50 years has witnessed the ongoing development by defense practitioners of what it means to “provide the effective assistance of counsel” through strong legal advocacy. More recently, many practitioners contend that in addition to the defense attorney, professional support services, such as social workers, paralegals, and criminal investigators, are critical to effective assistance of counsel in indigent defense cases. Investment by defender offices in resources and skills beyond traditional legal expertise promises to bring positive returns not just for clients, but for the criminal justice system and taxpayers as well. The umbrella of what we will call the holistic defense model covers the most developed concepts and practices of an integrated defense team. Proponents of holistic defense claim a wide range of enhanced client outcomes including more favorable court dispositions and successful treatment for recurring needs (e.g., addiction, joblessness, mental illness) as well as associated public benefits such as reduced recidivism and less reliance on costly incarceration. As positive as these meritorious claims may be, the current dearth of rigorous evaluative research means they remain unverified

Williamsburg, Virginia, National Center for State Courts, 2019. 53p.