What is the state of empirical research on indigent defense nationwide? A brief overview and suggestions for future research.

• Author: Frederique, Nadine
• Position: How Do We 'Do Data' in Public Defense?

ABSTRACT

In the United States, the Sixth Amendment provides the basis for the assumption that a person accused of a crime is entitled to legal representation and if he/she does not possess the means to attain an attorney, one will be provided for him/her. Unfortunately, the reality is that the right to counsel is not uniformly implemented for indigent defendants, those who cannot afford to hire a private attorney. Indigent defendants may not receive the same access and quality of representation as those with the financial means to secure their own defense counsel. In some instances, individuals have to be eligible for appointment of counsel. Jurisdictions exercise discretion on how and when they provide these legal services to those who are deemed indigent and therefore eligible. Often, indigent defense services are underfunded and defense counsel are overburdened. Advocates for the right to counsel often lament that there is a crisis in indigent defense in the United States. Social science research on the right to counsel provision and indigent defense can play a significant role in ameliorating this crisis. In order to understand the role of empirical research in addressing the needs of the indigent defense bar, we first have to understand what research has been done to date, lessons learned from that research, and what remains to be investigated. The goal of this paper is to examine the empirical research on the types of indigent defense representation, juvenile indigent defense, and the emerging research on holistic defense. Though not an exhaustive list, these areas of research serve as a jumping off point to broaden our understanding of the "state of indigent defense" at the national level. After presenting and analyzing the literature, we examine the gaps that currently exist in our knowledge and highlight areas for future research.

1. INTRODUCTION

   For the past several years, the National Institute of Justice (NIJ) focused its attention and resources on social science research of indigent defense and right to counsel issues. The NIJ is the research, development, and evaluation agency of the U.S. Department of Justice and is dedicated to improving knowledge and understanding of crime and justice issues through science. One of the guiding principles of the agency is to encourage and support innovative and rigorous research methods that can provide answers to criminal justice issues through empirical research questions as well as practical and applied solutions. These same guiding principles are relevant to the field of research on indigent defense. The aim of this paper is to examine the empirical research on right to counsel for indigent defendants, those who cannot afford their own attorney. We provide an overview of the literature on the types of indigent defense representation (i.e., public defenders, private attorneys, or contract attorneys), juvenile waiver of defense counsel, and the emerging research on holistic defense. Though not an exhaustive list, these areas of research serve as a jumping off point to broaden our understanding of the research surrounding indigent defense. After presenting and analyzing the research literature on these topics, we identify some of the gaps that exist in our knowledge and highlight areas for future research.

2. BRIEF HISTORY OF THE RIGHT TO COUNSEL

   In the United States, it is almost taken for granted that a person who is accused of a crime will be granted the opportunity to retain legal representation or, if he/she does not possess the means to hire an attorney, to have counsel appointed to him/her. More than a century ago, however, this was not the case. Although the Sixth Amendment to the U.S. Constitution states that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defense," the amendment was not uniformly implemented throughout the country. Even though the federal system provided and paid for indigent defense counsel, for years most states relied on the volunteer or pro bono efforts of lawyers to provide defense for the poor. (1) Although other U.S. Supreme Court cases help paved the way for indigent defense at the state level, (2) the most significant judgment on the right to counsel in Supreme Court history was Gideon v. Wainwright, (3,4) which overruled Betts v. Brady. (4) In Gideon, the Court unanimously held that an indigent person accused of a felony was entitled to the appointment of defense counsel at state expenditure. This decision was followed by a long line of Supreme Court decisions that strengthened support for the right to counsel for those who could not afford private attorneys. Four years after Gideon, with In re Gault, (5) the Court extended this right to juveniles. The right to counsel was again expanded in Argersinger v. Hamlin, (6) which provided indigent defendants' the right to counsel in misdemeanor proceedings where they are at risk for a possible loss of their liberty.

   In addition to the right to counsel at trial, the Court also recognized indigent defendants' right to representation at other stages of criminal case processing. These include post-arrest interrogation, in Miranda v. Arizona, (7) and Brewer v. Williams; (8) line-ups, in United States v. Wade; (9) preliminary hearings, in Coleman u. Alabama; (10) arraignments, in Hamilton v. Alabama; (11) and plea negotiations, in Brady v. United States (12) and McMann v. Richardson. (13)

   The right to counsel for indigent defendants is often extended to proceedings after a conviction as well as a range of "quasi-criminal" proceedings involving the loss of liberty, such as mental competency and commitment hearings, extradition, prison disciplinary hearings, status hearings for juveniles, some family matters such as nonpayment of court-ordered support or contempt proceedings, as well as child dependency, abuse, and neglect hearings. More recently, in Padilla v. Commonwealth of Kentucky, (14) the Court decided that criminal defense attorneys must advise noncitizen clients about the deportation risks of a guilty plea.

   The Court has also recognized that the mere presence of counsel may not equate to adequate representation. In any criminal proceeding in which counsel appears, the defendant is entitled to effective assistance of counsel, under Strickland v. Washington. (15) Ineffective assistance of counsel is a claim that can be raised by a convicted criminal defendant that their attorney's performance was so ineffective that it deprived them of the constitutional right guaranteed by the Sixth Amendment.

   Despite the Court's attention to the right to counsel, important questions that the Justices did not address were who would be responsible for funding the new system of indigent defense and how would the system be implemented. As a result, there are several types of indigent defense systems through which indigent defendant can acquire counsel. Although each state and locality can establish defender service systems in a variety of ways, there are three general types of attorneys and systems for delivering counsel to indigent defendants. (16) The primary method of delivery, which is perhaps the most familiar to the public, is the public defender system. Public defenders represent indigent clients and are typically salaried employees of the state, county, or locality. The second method is that indigent defendants can be provided legal access through a court-appointed attorney or the assigned counsel system. In these cases, the court assigns a private practice attorney to handle an individual case and he/she is compensated on a case-by-case basis. The third method, the contract system, is where the state contracts with private attorneys or attorney organizations to represent a certain number of indigent cases and then receive compensation as laid out in the contract. (17)

   Despite the Supreme Court's emphasis on the importance of access to counsel, and the public's general familiarity of indigent defense gained from media accounts, there continues to be a dearth of social science research that examines the indigent defense system, the policies that affect their ability to provide legal services, and ways that they can improve their general operations.

3. THE NATIONAL INSTITUTE OF JUSTICE AND SOCIAL SCIENCE RESEARCH ON THE RIGHT TO COUNSEL

   Though there has been a renewed focus on indigent defense research at the NIJ over the past couple of years, the NIJ has funded this research for several decades. Past NIJ-sponsored research includes surveys of the field of indigent defense, indigent defense organizational needs, mental health care provided to indigent defendants, and the early representation by defense counsel and its impacts on case processing and case outcomes. Some of these projects are highlighted in the paragraphs below.

   1. Past NIJ-Funded Empirical Research Projects

   In 1973, the NIJ funded The Other Face of Justice, which was a study conducted by the National Legal Aid & Defender Association (NLADA). (18) This was the first national survey of the state of legal defense services for the poor as of 1972. The purpose of the survey was to gather information on the various systems used by counties to provide indigent defense services. It described many characteristics of defender systems including attorney and support staff levels, scope of representation, client contact, funding sources, and average caseload sizes. It is widely cited and heralded as a landmark publication on public defense in the United States and is still cited in right to counsel articles. Several years later, The Other Face of Justice was followed up by Indigent Defense Systems Analysis, (19) also by NLADA. It expanded on the previous work by collecting additional data from 300 defender agencies across the country, including an examination of early representation and the availability of support services in defender systems. The report...