The Interaction between Legal Representation and Extralegal Factors on Nonviolent Misdemeanor Case Outcomes

Abstract

Several theories propose that extralegal factors influence criminal justice outcomes, particularly in less serious cases. Legal representation is intended to afford defendants, even in less serious cases, due process and fair proceedings. So, legal representation should neutralize the effect of extralegal factors in determining criminal justice outcomes, and this should be the case whether the representation is public or private. This study examined the interactive effect of representation and race on predisposition release at first appearance, pretrial diversion offers, and jail sentences to test this proposition. The results showed that public representation did not improve outcomes for white or nonwhite defendants on their likelihood of release at first appearance or receiving jail sentences. Private representation improved outcomes for white defendants but not nonwhite defendants on offers of pretrial diversion. Possible explanations for and the theoretical implications of these findings and suggestions for future research are discussed.

Keywords:

• Misdemeanors
• legal representation
• criminal justice outcomes

Acknowledgments

We are grateful to the State Attorney of Orange County, who provided access to the data for our projects. The views expressed in this paper belong to the authors. They do not reflect the views or position of the State Attorney’s Office or State Attorney.

Notes

1 Lawyers and scholars use the term pretrial release, but predisposition release is more appropriate and employed here. Most cases—and even more so in misdemeanor cases—do not proceed to trial, but are resolved by plea.

2 This dataset was part of a larger study, and the authors are grateful to the cooperation of the Orange County State Attorney, who provided access to the 2018 misdemeanor cases. Only six defendants, in our sub-sample, took their cases to trial; so, analyses of plea and trial decisions were not possible with this dataset.

3 Alabama, Alaska, Arizona, California, Connecticut, Delaware, Florida, Georgia, Hawaii, Indiana, Kentucky, Louisiana, Massachusetts, Minnesota, Mississippi, New Hampshire, New Mexico, New York, Oklahoma, Oregon, South Dakota, Tennessee, Virginia, Washington, West Virginia, and Wisconsin.

4 Colorado, Missouri, Montana, Nevada, New Jersey, and Wyoming.

5 Iowa, Maryland, Idaho, Maine, Ohio, Rhode Island, and Utah.

6 With few significant findings, Professor Feeley surmised that direct court observations might provide more robust and meaningful findings than examining official records. Here, we focused on his official records research, not his direct observations.

7 Columbus, Ohio (Ryan 1980–1981), Houston, Texas (Wheeler 1983), Mecklenburg County (Charlotte), North Carolina (Jamieson and Blowers 1993), Baltimore City, Maryland (Colbert et al. 2001–2002),Tulsa, Oklahoma (Liang, Long, and Brame 2012), and Harris County, Texas (Heaton, Mayson, and Stevens 2017; Hissong and Wheeler 2019).

8 New York (Worden et al. 2018), California (Meyer and Jesilow 1997), and Florida (Smith & Maddan, 2011, 2020).

9 Sample sizes range from 300–3000+ (Colbert et al. 2001–2002; Hissong and Wheeler 2019; Worden et al. 2018). The Heaton, Mayson, and Stevens (2017) study included 380,689 cases, but it also was unable to disaggregate the counsel variable, which confounded private- and self-representation cases.

10 The Rhys and Hartman (2017) dataset included serious misdemeanors and felonies. In their models, they controlled for offense seriousness.

11 Hissong and Wheeler (2019) did not directly test implicit bias, but they presumed that bail set outside the schedule might have been reasonably affected by implicit bias. This presumption is supported by other scholars, who argue that direct testing of implicit bias is unnecessary (Greenwald and Krieger 2006).

12 Information about criminal cases is available on the Orange County Clerk of Court website, https://www.myorangeclerk.com/.

13 This was not the best method of selecting cases for the sub-sample. Although, this weakness is acknowledged, there is no reason to believe that the subsample was systematically biased.

14 Three cases were eliminated because no data was located on the case from the clerk’s office or the case was duplicated in the dataset.

15 Driving with a suspended license on a subsequent offense is a first-degree offense, punishable up to one year in prison. On a third offense, prosecutors may proceed against defendants on third-degree felony charges. For this dataset, we merged the driving with suspended and subsequent offense cases. Eight percent (n = 48) were charged with this offense as a first charge, 0.5% (n = 3) as a second charge, and 0.1% (n = 1) as a third charge.

16 This excluded some defendants charged with minor offenses (e.g., prostitution, open container, and possession of alcohol by a minor)

17 One defendant was represented by the local law school criminal clinic. This representation was categorized as public representation for the study.

18 The Orange County (Orlando) Clerk of Court describes bond as the “legal agreement between the court and a person charged with a crime that he or she will appear before the court as ordered” (https://www.myorangeclerk.com/Divisions/Criminal/Bond-Information). There are three ways to post bond in Orange County:

“You may post bond in person at the Booking and Release Center,” which requires the payment by money order, traveler’s check, or certified or cashier’s check. (http://www.orangecountyfl.net/JailInmateServices/BondingOutOfJail.aspx#.XYpLiY74I_U). Personal checks and cash are not accepted; payments require personal identification.

“You may post bond by using a bonding company of your choice” (http://www.orangecountyfl.net/JailInmateServices/BondingOutOfJail.aspx#.XYpLiY74I_U).

“You may post bond by sending a cash transfer through Western Union” (http://www.orangecountyfl.net/JailInmateServices/BondingOutOfJail.aspx#.XYpLiY74I_U).

19 The bail schedule sets bail for first-degree misdemeanors at $250-500, second-degree misdemeanors at $150-250, ordinance violations at $250, and additional traffic and non-traffic misdemeanors at $100 for each offense.