By Akhi Johnson, et al.

In 2020, after a request for proposal process, Vera began partnerships with prosecutors’ offices in six jurisdictions: Boulder County, Colorado; Contra Costa County, California; DeKalb County, Georgia; Ingham County, Michigan; Ramsey County, Minnesota; and Suffolk County, Massachusetts. The partnerships were initially slated to run for 12–18 months, but the pandemic and the 2020 racial justice movement required adapting and lengthening those engagements to two years. Three goals guided the partnerships: reducing mass incarceration, addressing racial disparities, and increasing accountability to those most impacted by the criminal legal system. Prosecutors wield tremendous power, as their decisions reach nearly every aspect of the criminal legal system. They decide whom to charge—and with what offense; whether to ask for bail; when to provide evidence to the defense; what plea offer to make; what sentence to recommend; and, in some instances, whether someone should receive parole. However, prosecutors have the greatest influence at charging, when they decide whether someone enters the criminal legal system, and their charging discretion is virtually unchecked. Although Vera helped each office to examine its impact at every discretion point, the primary focus was on how to reduce harms at charging—through who was charged, what crime was charged, and who could be diverted away from traditional prosecution. Vera’s approach to addressing racial disparities focused on systemic issues rather than potential biases of individual actors. Rather than analyze whether similarly situated people received different treatment based on their race, Vera highlighted broader trends to illustrate which communities the criminal legal system impacts most and in what ways. For example, Vera’s analysis revealed that although Black people represent 55 percent of DeKalb County, Georgia’s population, they made up 81 percent of the adult caseload, 79 percent of juvenile cases, and 93 percent of children charged as adults.2 Rather than seeking to determine who was at fault, Vera’s analysis describes trends and starts conversations within communities about the historical and societal factors contributing to disparities and how stakeholders can respond. For each partnership, a key goal was to help prosecutors be more accountable to communities impacted by their decisions. In many areas around the country, people do not know who their elected prosecutors are, let alone how an office’s decisions affect safety in their communities. That gap represents a missed opportunity to learn from people uniquely positioned to inform policy discussions, and it leaves communities ill-equipped to gauge the performance of their elected officials. Vera worked in partnership with each office to facilitate the public sharing of data to inform communities and ground conversations on potential reform efforts. As one community group noted, Vera’s engagement “has made our prosecutor more aware of the need for a greater relationship with the community. . . . [W]e have a lot of systemic issues . . . [and] Vera’s presence has allowed us to continue to push the conversations forward.” Multiple factors impacted each office’s ability to implement reforms during the engagements, but the political climate was most significant. With increased scrutiny of reform prosecutors and false narratives that communities had to choose between safety and reform, some jurisdictions faced unique challenges in announcing changes. Vera worked with each jurisdiction to assess what was feasible in the current moment and adjusted accordingly. Despite the political climate, our partners made significant strides—including a groundbreaking policy in Ramsey County, Minnesota, inspired by Philando Castile’s death, to deter non– public safety (pretextual) traffic stops. However, even when an office did not announce a particular policy, Vera observed shifts in how prosecutors approached cases based on discussions prompted by the engagements. As partner offices noted, Vera’s work prompted new discussions about how to assess cases and revealed problem areas. One prosecutor reflected that the engagement “changed the way I think about my job and my role . . . being more mindful about the decision to charge somebody with a felony, and, you know, even if that case is later dismissed, the impact that can have on them.”

New York: Vera Institute of Justice, 2023. 40p.

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 Daniel Richman

Even as others make cogent arguments for diminishing the work of prosecutors, work remains — cases that must be brought against a backdrop of existing economic inequality and structural racism and of an array of impoverished institutional alternatives. The (immediate) future of prosecution requires thoughtful engagement with these tragic circumstances, but it also will inevitably involve the co-production of sentences that deter and incapacitate. Across-the-board sentencing discounts based on such circumstances are no substitute for the thoughtful intermediation that only the courtroom working group — judges, prosecutors and defense counsel — can provide. The (immediate) future also requires prosecutors to do more to recognize the distinctive role they can play in combating illegitimate domination.

50 Fordham Urb. L.J. 1139 (2023).

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.

By Marea Beeman, Kellianne Elliott, Rosalie Joy, Elizabeth Allen, and Michael Mrozinski

  In the United States of America, individuals accused of crime who cannot afford to hire a lawyer have a constitutional right to have one appointed to represent them at government expense. In 2021, the National Legal Aid & Defender Association (NLADA) set out to investigate the national landscape of laws and local practices relating to fees that are assessed upon individuals when they exercise their constitutional right to counsel. Findings from the resulting eighteen-month investigation show that in the overwhelming majority of states, the Sixth Amendment right to counsel does not mean that counsel for those who cannot afford it is provided free of charge. In 42 states, plus the District of Columbia, laws authorize courts to impose public defense system fees – both upfront application or administrative fees, and fees recouping the cost of counsel – on people who are represented by court-appointed attorneys. NLADA’s review finds that these fees do more harm than good. For instance, in no state with available data does collection of public defense recoupment fees amount to more than five percent of assessed recoupment costs. Yet individuals assessed these fees who cannot pay them down are essentially sentenced to years of court entanglement and consequences that can sharply limit efforts to move forward in life. Unpaid court debt, including public defense system fees, can result in years of, among other things, inability to secure reliable housing and employment, tarnished credit, and risk of arrest or incarceration for failure to pay. …

 Washington DC:  National Legal Aid & Defender Association, 2022. 136p.

By Patrick McNeil, et al.

“Persevere: Our Ongoing Fight for an Equal Justice Judiciary” documents the work during the 117th Congress to build an equal justice judiciary by nominating and confirming diverse and highly qualified individuals — including people with civil rights and public defender experience — to serve on the federal bench. The civil rights community has long understood that for there to be equal justice in America, we need fair-minded judges and justices who are committed to protecting the rights of all people and who come from all of our communities. This report details many of the judicial nominees — including Justice Ketanji Brown Jackson — who were confirmed during the 117th Congress, explains why their confirmations matter, and calls on lawmakers to bolster our democracy by strengthening the judiciary so that it works for all of us.

Washington, DC: The Leadership Conference on Civil and Human Rights , 2023. 56p.

By Brittany Friedman and Mary Pattillo
  Monetary sanctions mandated in state statutes include fines, fees, restitution, and other legal costs imposed on persons convicted of crimes and other legal violations. Drawing on content analysis of current legislative statutes in Illinois pertaining to monetary sanctions, we ask three questions: What are defendants expected to pay for and why? What accommodations exist for defendants’ poverty? What are the consequences for nonpayment? We find that neoliberal logics of personal responsibility and carceral expansion suffuse these laws, establishing a basis for transferring public costs onto criminal defendants, offering little relief for poverty, and supporting severe additional penalties for unpaid debt. Statutory inequality legally authorizes further impoverishment of the poor, thereby increasing inequality. Major related organizing and advocacy work, however, has created an opening for significant changes toward greater fairness.  

  RSF: The Russell Sage Foundation Journal of the Social Sciences 5(1): 173–96.

By Duke Law School, Wilson Center for Science and Justice

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Durham, NC: Duke Law School, Wilson Center for Science and Justice, 2021. 18p.