Unique New York? Theorizing the Impact of Resources on the Quality of Defense Representation in a Deviant State

• Author: Giza Lopes,Alyssa Clark,Andrew L. B. Davies
• Published date: 01 July 2020
• Date: 01 July 2020
• DOI: http://doi.org/10.1177/0887403419890650
• Subject Matter: Articles

https://doi.org/10.1177/0887403419890650

Criminal Justice Policy Review

2020, Vol. 31(6) 962 –986

© The Author(s) 2019

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DOI: 10.1177/0887403419890650

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Article

Unique New York?

Theorizing the Impact of

Resources on the Quality of

Defense Representation in a

Deviant State

Andrew L. B. Davies1, Giza Lopes2,

and Alyssa Clark3

Abstract

Litigation in New York State has resulted in the allocation of substantial new funding

to limit indigent defense caseloads and improve representation provided to criminal

defendants. Funding injections have rarely been studied in defense, however, so it is

not clear what will be the effects of the new resources. Defense critics expect their

impact to be transformative, but empirical scholarship is more pessimistic. We sort

between these perspectives using exploratory interviews with the individuals most

critical to the planned reforms: executive-level chief public defenders. Conceptualizing

defense service quality in terms of “public value,” we find points of deviation from

both the optimistic and pessimistic accounts. New York is a “deviant case,” we

argue, which can be used to break new theoretical and empirical ground around the

question of how resources impact defense service quality.

Keywords

criminal court, crimal justice policy, program evaluation, research and policy

Introduction

Does funding for indigent defense services make a difference to their quality? Critics

of defense systems certainly think so. Poor defense funding, they argue, is associated

1Deason Criminal Justice Reform Center, Southern Methodist University, Dallas, TX, USA

2New York State Youth Justice Institute, Albany, USA

3New York State Office of Indigent Legal Services, Albany, USA

Corresponding Author:

Andrew L. B. Davies, Deason Criminal Justice Reform Center, Dedman School of Law, Southern

Methodist University, PO Box 750116, Dallas, TX 75275-0116, USA.

Email: albdavies@smu.edu

890650CJPXXX10.1177/0887403419890650Criminal Justice Policy ReviewDavies et al.

research-article2019

Davies et al. 963

with wrongful convictions, death sentences, over-reliance on plea bargaining, and

mass incarceration (Blumberg, 1967; Garrett & Desai, 2018; Gould & Leon, 2017;

Worden et al., 2014). Funding levels have been described as “woeful,” tantamount to

“neglect,” and a “national crisis” (The Constitution Project, 2009; Lefstein, 2011;

Stevens et al., 2010; Taylor, 2011). Improving resources available to defense, seem-

ingly, should reduce the legal system’s reliance on punitive sanctions, improve defen-

dant experiences, and bring systems into closer compliance with the requirements of

both the Constitution and of basic fairness (Burkhart, 2016; Colgan, 2017).

Empirical research in the area, however, is pessimistic about the prospects for

improvement to justice systems through the addition of funding to the defense func-

tion. Studies of attempts to reform criminal courts have argued not only that courts

resist change and tend to self-correct when confronted with reform projects, but also

that the defense function is among the least powerful players when it comes to driving

change (Feeley, 1979; Flemming et al., 1993). Inasmuch as courts abrogate due pro-

cess protections, scholars like Feeley (1979) have argued, they do so because of

ingrained professional cultures, not because caseloads are too high or resources too

scarce. Defense funding injections, like other attempts at reform, are likely to change

very little (Feeley, 2013).

To date, there has been no way to test these competing perspectives because no

state has funded indigent defense services at the level that critics consider adequate. A

planned injection of resources across New York State represents just such an opportu-

nity (Leahy, 2018). Supported by a commitment of an additional quarter-billion dol-

lars annually, legislation in the state requires that all indigent defense lawyers meet

caseload limits by 2023. Never has any state invested in the defense function to such

an extent, and no state has ever funded wholesale compliance with caseload stan-

dards—a key demand of critics.1

The unprecedented nature of the New York reform creates certain problems—but

also certain opportunities—for the investigation of its impact. Scientifically, the fact

that New York has chosen to fund defense to such an extent makes it a “deviant

case”—an exception to the usual rule that defense services are funded at levels lower

than recommended (Emigh, 1997). The state therefore represents an opportunity to

stress test the conclusion of prior studies (of “typical” cases) that funding for defense

makes little difference. If the null hypothesis that defense funding has no impact on the

ways courts process defendants should in fact be rejected, then it is in New York in

coming years that evidence for that rejection is most likely to be found.

In this article, we present findings from an exploratory interview study with six

executive-level chief public defenders around upstate New York on their expecta-

tions of the likely impact of the planned reform. Talking to the people responsible

for implementing the reform can help to ground hypotheses more effectively than

either the lofty optimism of the critics or the comparative pessimism of the empiri-

cists. The precise form, and indeed the viability, of the reforms planned in New York

depends critically on the actions and choices of chief defenders (Willging et al.,

2018). It is these executives who must moderate and interpret expectations of reform,

shape them to the scope that available funding allows, and determine how to account