How do we 'do data' in public defense?

• Author: Davies, Andrew Lucas Blaize
• Position: EDITOR'S INTRODUCTION

This essay introduces the six articles that follow in this collection and assesses what they say about the contemporary state of research in public defense generally. The history of the present burgeoning of interest in this issue is explained by reference to recent concerns to improve data collection within the defense profession and the novel availability of federal funds to do so. Four functional themes are identified from among the present articles, speaking to the implicit purpose of the work: documenting inequity, evaluating policy options, system monitoring, and pursuing a scientific agenda. This diversity of functions that the research seems to perform speaks to the diversity of the defender research community itself and the uses it has for research and data--a diversity which I conclude is important to recognize and preserve even as we emerge from this formative phase into a time where specific research agendas begin to crystallize.

1. INTRODUCTION: A BENIGN CONFLUENCE

   A watershed moment in how public defenders think about data arrived in the summer of 2012. In late July, the Missouri Supreme Court decided that the Missouri State Public Defender (MSPD) had the right to refuse to represent defendants in order to avoid case overload. (1) This ruling, coming after years of protests and reports that the system was badly underfunded, (2) was a historic win, purportedly allowing MSPD to regulate its own workload and assure quality representation.

   This changed rapidly in October when the state auditor (himself a Harvard-educated lawyer) (3) issued a report declaring not only that the caseload limits MSPD had set for itself lacked any "support or basis," but also that since "MSPD does not track staff time spent by case type, ... MSPD lacks detailed information to estimate staff hours per caseload," and that the agency was therefore "unable to accurately determine the resources needed to manage caseloads." (4) The Missouri Association of Prosecuting Attorneys announced MSPD's "unsupported claim of a 'constitutional caseload crisis'" was "a myth that has been manufactured by misleading caseload statistics." (5)

   The auditor's conclusions seriously undermined MSPD's ability to advocate for more resources in the state budget--resources which it nevertheless claimed were badly needed. MSPD quickly recognized that its response to the auditor's report had to be the immediate requirement that all of its lawyers track all time spent on each case. Working with the American Bar Association (ABA) and RubinBrown, an accounting and professional consulting firm, a report was produced in June 2014 that immediately represented one of the most sophisticated, data-driven analyses of defender workloads to date. (6) Moreover, it validated MSPD's original position that it was badly overloaded and in serious need of additional resources. Based on the RubinBrown report, the Missouri legislature passed the largest increase in MSPD's budget in fifteen years, (7) and when the governor vetoed that bill (and many others), the legislature overrode his veto. (8) The point that these funds were badly needed had been made.

   The Missouri situation made several things clear to defenders across the nation. On the one hand, the broad message seemed to be that we were entering into a new era in which valid, persuasive data and analysis were increasingly going to be expected or required of defenders if they hoped to compete in policy and budget arenas. More narrowly, though perhaps more profoundly, there was also an implication that the data and numerical standards that defenders had relied on for a generation or more would not hold up if subjected to close scrutiny. (9) The entire episode opened a question few had really thought about much before: Do the data and analysis we have really allow us to understand and defend what we do, or are they just not good enough?

   Public defenders have always been hungry for data--especially when it comes to budget time--and in some cases they have had it. (10) But after 2012, some in the defender community began to think about "doing data" in a much more concerted way. National defender groups including the National Legal Aid and Defender Association (NLADA), the National Association of Criminal Defense Lawyers (NACDL), and the National Association for Public Defense (NAPD) all touched on the issue in various ways. (11) The NLADA in particular took systematic steps in establishing several initiatives focused specifically on improving defender research capacity. (12) The NAPD issued its Workload Position Paper, "the first national statement on workloads that requires permanent timekeeping as a condition of meaningful workload evaluation and litigation." (13) Meanwhile, several states, including Texas (and Travis County in particular), New York, and (very recently) Michigan, joined North Carolina by institutionalizing a research capacity in their defender oversight agencies, creating full-time positions (such as the one I occupy) for personnel whose time would be devoted to inquiry into public defense. (14)

   At the same time, the Department of Justice's (DOJ) research and funding arms each began to focus on studying public defense under the leadership of United States Attorney General Eric Holder. (15) This injection of funding created inevitable interest in public defender research in academia. Research universities including American University, (16) Georgetown, (17) and the State University of New York at Albany, (18) as well as research organizations including the Vera Institute of Justice, the Rand Corporation, and the National Center for State Courts, (19) have (among others) all been granted funding to lead projects that promise to break new ground in the empirical understanding of defense.

   The results of all of these research-related activities has been the development in very short order of a new community of social scientists, legal scholars, practicing defenders, government employees, and others, all of whom are dedicated to research and data in the arena of public defense. In November 2014, several of us met for the first time at the annual meeting of the American Society of Criminology in San Francisco to present projects we were working on and to share ideas. The panels represented, to my knowledge, the first national meeting devoted solely to research on public defense. Several of the papers in this issue, which is also, to my knowledge, the first ever of its kind devoted solely to the publication of research on public defense, were originally presented at that meeting. (20)

2. WAYS OF "DOING DATA"

   I use the term "doing data" to describe what is going on in public defense for two reasons. First, it does not evoke the scientific elitism that words like "research," "analysis," or even "data collection" do. And second, it captures the pragmatic aspect of so much of the research and data collection that actually do go on in public defense. Within the defender community, data collection and research have often been driven by specific informational needs rather than broad policy concerns or--still less--theoretical issues. Often these informational needs come about as the result of crises, as in Missouri. They can also come about in less acute situations, where defenders realize they face problems which are systemic and require broad, careful information gathering of some kind. Either way, it is not uncommon for defenders to find themselves in a position where the need for data is clear, and when this happens their response is often pragmatic. If data are needed to prove a point, and defenders have the time, then defenders "do data." (21)

   All research, and not just that in public defense, typically exists to perform some function. The functions it performs depend heavily on who is doing it and why. Whereas defenders might be driven, for example, by the hope that their work will prove the basis of litigation or media exposure, professional researchers might be driven by other objectives such as testing scientific theories, expanding knowledge, or simply getting publications (like this one).

   The fact that this new generation of work in public defense is the result of a benign confluence of both defender interest and federal funding, however, suggests that the number of reasons and...