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It was our honor and pleasure to work with Dr. Amy Steigerwalt to present this special issue of Justice System Journal dedicated to empirical research on indigent defense. We are thankful to all the authors who contributed their work for consideration and are indebted to the reviewers who helped to ensure that this issue represents the diversity and quality of a vibrant research field.
We are also mindful that this issue emerges amidst an epistemic crisis in which the concept of shared, verifiable knowledge is subject not only to justifiable critique but also to unwarranted attack. Indeed, as is increasingly true across organizations, institutions, and systems, the practice of indigent defense itself is rife with political battles in which research and data are often deployed as weapons.
We view this crisis as an opportunity to celebrate science—the co-production of knowledge through iterative application and improvement of research principles and methods, grounded in commitments to transparency regarding the content, implications, and limitations of resulting data. We do so with this compilation of new research on indigent defense. These volumes have been a focus of our work since 2014, when we co-convened the Indigent Defense Research Association (IDRA) to build new connections among researchers in the field. Since then, IDRA’s conferences, monthly webinars, and listserv have provide a unique space for robust discussion and advancement of research on indigent defense.
As was the case with prior volumes, the results of these discussions inform a collection of papers that readers are unlikely to find elsewhere. Some pieces are critical of indigent defense systems and the lawyers that work in them. Other work focuses exclusively on perfecting research methods. Some are animated by goals such as policy improvement, exposure of inequity, or liberation from oppression. But a common thread runs across these pieces: the shared desire to understand indigent defense more deeply and to describe it more accurately.
We divide the seven studies in this volume into three groups. We begin with two studies that examine the experiences of people receiving indigent defense services. Each raises questions about what people want and need from indigent defense, and how often they are satisfied. We then move on to three further studies of professionals in indigent defense systems – attorneys and judges – which lead us to wonder about how well their work and goals match what service recipients want. And finally, we present two studies that look at indigent defense services at a jurisdictional level, each asking different questions about the benefits and adequacy of the systems under examination.
People whom Indigent Defense Systems are Supposed to Serve
We begin with the raison d’être of indigent defense: people who are charged with criminal offenses, but who cannot afford to hire an attorney. If lawyers and indigent defense systems are to be of use, we need to understand the needs and wants of these key system stakeholders. Two articles address these questions directly.
Pruss, Sandys, and Walsh advance the relatively scant literature on factors that influence client satisfaction with attorney performance. These authors complement previously reported quantitative analysis of data from residents of a rural Midwestern county with qualitative data gathered from a subset of the same population. Results reinforce earlier findings on the importance of communication, investigation, and advocacy, but also offer new insight into client definitions of those core functions. Clients saw communication as more than just “showing up”; they prioritized honesty and transparency. They saw investigation as more than independent review of case facts; they wanted their own stories to shape deeper, more productive lines of inquiry. Across these functions, clients expressed desires for greater voice, agency, and collaboration. Those interests support moves toward client-centered representation and a bolstering of related attorney training.
Campbell and Henderson contribute something else to the question of how to assess client experiences: a proof-of-concept for a novel methodological approach to measure the quality of attorney-client communication. Recognizing the peculiar and steep ethical obstacles to observing attorney-client interaction directly, they rely on a clever work-around, embedding as interns in a defender office. Through a carefully crafted agreement, they became part of the defense team and as such could be privy to confidential interactions without undoing their legally privileged nature. They use their unique access to develop an observational checklist with which to rate attorney-client interactions. Their early findings from this technique show obvious promise for deepening and clarifying our understanding about what matters, and what works, in attorney-client communication.
People Working in Indigent Defense Systems
What of the other participants in the criminal legal system? Indigent defense attorneys have the important task of representing their clients, and judges have the responsibility of bringing clients and attorneys together for the first time. Three studies deal directly with how attorneys and judges think about, and prepare for, their work.
Webster, Powell, Lageson, and Baćak parse the ways in which a sample of defense attorneys used quasi-religious rhetoric in describing their work. They distinguish ‘zeal’ - vigorous dedication to advocacy - from ‘zealotry’ - a more dichotomizing view which contrasts the virtue and importance of defense work with prosecutors as untrustworthy or ‘evil.’ Interestingly, younger attorneys in their sample were more likely to use quasi-religious language in ways that suggest uncompromising attitudes toward prosecutors than their older colleagues. These young lawyers’ refusal to compromise carries risks: rapid burnout, and a lack of receptivity to any program requiring cooperation with the prosecution, even if their client might benefit. What begins as an exploration of language becomes in the end a valuable and original study of motivation and persistence in the profession.
Leasure, Burrow, Zhang, and Beohme surveyed South Carolina defense lawyers on how they informed clients about collateral consequences of conviction. Such consequences, including deportation and obstacles to employment, can frequently be extremely serious and much more long-lasting than court-imposed sentences themselves. Their principal and most worrying finding is that only a minority of attorneys thought that their colleagues do a good job informing clients of collateral consequences. Lawyers also did not appear to offer advice on all consequences with equal consistency. Coming a decade after the Padilla v. Kentucky decision, which mandated attorneys to advise clients of such consequences especially when they related to deportation, the inconsistencies they find in performance of that function raise significant questions about the adequacy of representation being provided.
Clark, Davies and Curtis surveyed over a thousand judges in local courts, mostly in rural areas that lacked access to counsel, to ask whether and how they provided lawyers to defendants. While judges overwhelmingly wanted counsel to appear in their courts, they also resisted reforms to make counsel more widely available. Judges knew local lawyers were few and far between. They stressed that they had developed working norms to accommodate counsel’s absence, and would link defendants with lawyers as soon as was practical. The authors resolve this conflict by noting that judges' reasons for favoring counsel's presence did not often rest on traditional concerns for ‘due process.’ Instead, they describe their main concerns as ‘practical’ and ‘presentational’ - smooth court operations, and an outward appearance of legitimacy. Counsel's presence would further those goals, judges believed, but it was a preference rather than a prerequisite. Efforts to expand access to counsel to rural and remote places may succeed, the authors conclude, but judges will only participate willingly if their practical and presentational goals are also served.
Planning for Systematic Change
The final two pieces in this issue shift the focus of inquiry to system results. Do indigent defense systems actually work? Do they help the clients whom they are intended to assist?
Smith and Maddan engage the widespread recognition that criminal legal system outcomes are often systematically worse for people who are members of marginalized and minority racial and ethnic groups. They ask whether the benefits of defense representation are greater for people in those groups than for members of other, more privileged or dominant groups. Their results are disappointing: while defense representation does seem to result in better outcomes for misdemeanor defendants, their interaction tests reveal that if anything the benefits are enjoyed principally by White people, not Hispanic or Black people. Far from redressing disparity, the advantages that counsel’s presence supplies are scarcer among people who aren’t White. There is clearly more to be done in this area – expansion of defense services to new clients is undoubtedly a Constitutional good – but if that good extends more substantive benefits to some groups than others, defense lawyers, system managers, and policy makers need to consider the role of indigent defense in reinforcing, rather than remedying, existing disparities.
Finally, Davidson, Ostrom, and Kleiman focus on the potential enhancement that ‘holistic’ defense might represent to the experience of a person receiving indigent defense services. They describe in detail the ways holistic advocacy is intended to focus beyond the client’s criminal case, and seek evidence of the difference it makes by comparing two groups of clients, one of which received holistic advocacy and the other of which did not. Though the authors identify instances where the holistic program may not have connected clients to needed services, their data suggest very favorable outcomes after such connections are made. Several clients clearly benefitted from and appreciated the additional support and services that were simply unavailable in the comparison program.
Final Thoughts
Efforts to improve indigent defense systems across the country will benefit – we believe – from research that centers the interests of people receiving defense representation, considers how to align systems to those interests, and applies sound research methods with firm commitments to rigor and transparency. Conversely, without studies to define, describe, and compare systems, progress will be unlikely or at least unverifiable. We hope the reader will agree that volumes like this create spaces for people to share their methods and findings, subject them to scrutiny, advance knowledge, and contribute to the improvement of indigent defense. We also hope this collection of papers will inspire others to join in the work. The remaining questions are many, and their implications for the provision of equal justice are profound.