Sociology | History of Sociology » Debra S. Emmelman - Past Present and Future, Research into Advocacy for Criminal Defendandts

Source: http://www.doksinet PAST PRESENT AND FUTURE: RESEARCH INTO ADVOCACY FOR CRIMINAL DEFENDANTS* by Debra S. Emmelman, PhD Southern Connecticut State University 501 Crescent Street New Haven, CT 06515 Office #: 203-392-5686 *I would like to thank Theodore T. Smith for his helpful comments and editing Source: http://www.doksinet INTRODUCTION I have been asked: “Have criminal defense services improved since the classical research of the 1960s, or has our approach to understanding these services merely changed?” My tentative response to this question is that these services have not improved remarkably so much as our perspective has changed. In this paper, I review much of the research that has characterized investigations of criminal defense since the 1960s, and I describe what I believe are the primary shifts in approach. I conclude by briefly suggesting where this history might be leading us regarding future research. RESEARCH FROM THE MID-60S THROUGH THE MID-70S: “YOU

GET WHAT YOU PAY FOR” Most of the research on criminal defense has focused on the defense of poor people. With few exceptions, early research reaffirmed the common sentiment that “you get what you pay for.” In particular, because one does not pay for publicly provided attorneys, one cannot expect quality service. Likewise, unless one pays a private attorney a great deal of money, neither can one expect ethical representation from private attorneys. In most instances, “quality service” referred specifically to trial, preferably to trial by jury. This position was seen first in David Sudnow’s 1965 study on Public Defenders. He argued that because these attorneys are beholden more to prosecutors and judges than defendants, they presumed their clients’ guilt and sought only to negotiate “reasonable” plea bargains. Abraham Blumberg (1967a) described a similar situation in a 1967 study of the criminal defense bar in New York City. However, Blumberg added that private

attorneys who rely on the payment of fees from their clients structure their advocacy around strategies to achieve economic success: while defendants who can afford to pay substantial fees receive acceptable defense representation, those who cannot afford such fees are "conned" into accepting plea 1 Source: http://www.doksinet bargains. He maintained that release on bail and jail terms were also negotiated on the basis of fee payment. Anthony Platt and Randi Pollock’s 1974 study on the careers of Public Defenders also reflected the sentiment that attorneys for the poor or working class are not as proficient as others. They found that most Public Defenders viewed their position as training for private practice. And, while most of them left the Public Defender’s Office after an average of two and a half years feeling burned out and embittered, those who remained as career civil servants were usually motivated by an unwillingness or inability to compete successfully in

the marketplace of private practice. In 1975, Albert Alschuler expanded upon Blumberg’s earlier findings and examined all types of defense attorneys, including retained attorneys, Public Defenders, pro bono and other appointed defense counsel, as well as unrepresented defendants. His aim was to assess their role in plea bargaining to determine whether and/or how defendants were ethically represented. He found that every type of defense system used in plea bargaining appeared to involve flaws that predispose attorneys to represent their clients ineffectively. Thus, he argued that plea bargaining should be abolished. Gregg Barak’s (1975) historical study on the emergence of the Public Defender system sheds a slightly different but equally pessimistic light on criminal defense of the poor. Barak maintained that the Public Defender system arose not as the consequence of progressive and humanitarian legal reform but instead due to the economic forces of capitalism. He further argued

that, rather than protecting the rights and interests of the poor this system merely reinforces the corporate capitalist order and serves ruling class interests. Thus, once again, it is the wealthy that benefit most from criminal defense because they hire private attorneys or because the system itself is designed to protect their resources generally. Other researchers in the Marxist tradition made similar arguments regarding the court system generally. In the same year, for example, Douglas Hay argued that eighteenth century court rituals were used to bring 2 Source: http://www.doksinet about the illusion of justice in order to maintain oppressive class relations. 1 One exception to this early tradition was Jerome Skolnick’s Social Control in the Adversary System (1967). Skolnick appears to have been the first to note that certain systemic conditions might actually encourage, rather than discourage, adversarial behavior among criminal attorneys for the poor. 2 He argued that

Public Defenders not only perceive their role to be similar to that of most private defense attorneys, but that they appear in some respects to be better equipped to carry out their role because they control many cases and are therefore better able to frustrate the District Attorney’s Office. He also observed that because they have less client control, Public Defenders are more likely to take cases to trial. RESEARCH FROM THE MID-70S THROUGH THE MID-80S: THE PROBLEM OF JUSTICE IS NOT SO SIMPLE! For the sake of clarity in this discussion, research in the mid-70s through the mid-80s will be categorized into ethnographies that focus on the court as a type of organization, ethnographies that focus on defense attorneys specifically, and statistical studies on criminal case outcomes. Nevertheless, in all categories, the problem of ethical defense representation was viewed as more complex than assumed by previous scholars. Ethnographies: the Court as an Organization - In 1967, Abraham

Blumberg produced a study on the operation of the criminal court system. He argued that the system functioned as “bureaucratic due-process”, or more precisely, as an organization designed to be efficient in producing guilty pleas. Certain scholars in the next decade were also intrigued by the organizational operation of the court system. Yet in these later studies the relationship between 1 See also Balbus (1973), Chambliss (1964), Hay et al (1975) and Thompson (1975). I made a similar argument in a 1993 article wherein I reported my observations on a private non-profit corporation of court-appointed defense attorneys. 2 3 Source: http://www.doksinet court actors, including defense attorneys, was perceived to be more multifaceted. Although the primary issue continued to be whether defendants were treated ethically, this matter was now seen to involve numerous factors both legal and extra-legal. In 1977, Malcolm Feeley found that a lower criminal court in New Haven,

Connecticut 1) functioned not so much as a bureaucratic structure but as an open system (or type of marketplace) wherein balance or equilibrium is achieved among a number of actors with diverse backgrounds, interests and goals, 2) that the court officials perspectives on substantive justice took precedence over the adjudicative ideal, and more importantly, 3) that the costs of legal procedures shift the locus of sanctioning. By this, Feeley meant that, rather than occurring after adjudication, most punishments are actually administered to individuals through costs incurred before and during litigation such as docked wages, or lost employment due to the time necessary for defendants to be absent from work to attend legal proceedings. In essence, Feeley contends that the process for sanctioning individuals is the punishment and that to subject defendants to anything more would be largely unjust. Also in 1977, James Eisenstein and Herbert Jacob detailed an organizational model of the

felony disposition process. Specifically, they focused on the interaction and decisionmaking processes of courtroom workgroups as the primary factor in case processing and outcomes. The courtroom workgroup consisted not only of judges, prosecutors and defense counsel but also clerks, bailiffs, and to a limited extent, defendants. The authors concluded that the differences found in case processing and outcomes among the three cities they studied resulted from complex interactions among members of the courtroom workgroup as it operated in a particular organizational environment governed by local and State ordinances, laws, rules, and traditions. Similarly, in 1988, Eisenstein along with Roy Flemming and Peter Nardulli examined nine criminal court jurisdictions in three states by applying a community metaphor, or, by looking at and comparing the attitudes and behaviors of individual court actors, the legal culture of 4 Source: http://www.doksinet different courts, as well as the

larger community setting of different courts. They concluded that justice is contoured, or, that the size and other attributes of court communities consistently and powerfully influence their structure and dynamics. 3 Finally, in 1978 Pamela Utz examined the differences between and institutional conditions that effect discretion and negotiation in the court systems of two California counties. She found that one county was more adversarial and less collaborative than the other. She argued, ironically, that the difference was largely because the more adversarial organization of defenders had fewer resources than the DAs office and was therefore simply compelled to fight harder. Ultimately, Utz favored the collaborative plea bargaining system and questioned whether the adversarial model of justice was actually better than the administrative (or collaborative) model. So here we have studies that no longer condemn defense attorneys simply because they plea bargain. 4 Other ethnographers

who focused specifically on defense attorneys during this decade pointed out that Public Defenders provide service comparable to, if not better than, that afforded by private attorneys. And while most of the early scholars argued that there were inherent flaws in the court system that resulted in unethical defense service, some of the later scholars, like Skolnick before them, went so far as to argue that public defense attorneys perform satisfactorily precisely because of certain systemic or structural flaws in the defense system. Ethnographies on Defense Attorneys - Increasingly during this period, investigators were finding that defense attorneys did not presume guilt in deciding to plea bargain cases but instead relied on legally relevant concerns such as seriousness of the charge, strength of the 3 For a more recent study in this tradition, see Ulmer 1996. In 1996, I presented evidence that plea bargaining can be seen, not merely as an effective method for representing indigent

defendants, but perhaps equally as, or more effective than trial. 4 5 Source: http://www.doksinet evidence, and prior record. 5 In her 1979 study of Public Defenders, for example, Lynn Mather found that two features were most important to these attorneys’ assessment of cases: 1) the strength of the prosecutions case and 2) the seriousness of the case, the latter of which included the seriousness of the charge and the defendant’s prior record. These factors affected not only pretrial screening decisions and the choice of disposition method, but also the assignment of cases to attorneys with more or less experience, the more experienced attorneys handling the more serious cases, of course. She further argued that private attorneys and Public Defenders tended to make the same recommendations to their clients and achieve the same results in their cases. Court-appointed attorneys who were paid on an hourly basis, however, were more likely to take cases to trial than either the

Public Defenders or the private attorneys. Thus, Mather argued not only that the Public Defenders made decisions on legally ethical considerations but also that they were equally as, and sometimes more competent than, other defense attorneys. In the same study, Mather also found that defendants appeared to trust privately retained attorneys more than public attorneys, and thereby went along with the former’s recommendations more often. This observation was confirmed in Roy Flemming’s 1986 study However, Flemming further found that in order to win their clients confidence as well as avoid allegations of professional incompetence, attorneys who represent public clients play an advisory rather than a stronger, more insistent, recommendatory role. This actually results in public clients greater involvement in the development of their cases. 6 Thus, in this study, we see that publicly provided attorneys have greater incentive than private attorneys to behave ethically due to the very

constraints of their positions. A similar conclusion is drawn by Lisa McIntyre in her 1987 study on Public Defenders. Yet McIntyre also finds that publicly provided 5 See for example, Eisenstein and Jacob, 1977; Heumann, 1975; Maynard, 1984a; McDonald, 1985; Neubauer, 1974; Rosett & Cressey, 1976; Utz, 1978. 6 That client participation results in greater trust and client satisfaction was supported in a 2004 study by Boccaccini, Boothby and Brodsky. This was also validated in my research on publicly provided defense attorneys. 6 Source: http://www.doksinet attorneys are compelled to endure a stigma of ineptitude due to a certain contradiction built into the larger court system. McIntyre (1987) provided a model of public defending to explain both how Public Defenders manage to do about as well for their clients as private lawyers and why Public Defenders--regardless of the actual quality of their work--continue to be plagued by the “stigma of ineptitude.” According to

McIntyre, an adversarial character among Public Defenders appears to be cultivated by the court system’s need to maintain legitimacy. However, this situation implies a contradiction whereby a truly effective Public Defender system entails calling into question the legitimacy of behaviors performed by other members of the court system. Thus, she reasons, the survival of the Public Defender’s Office appears to hinge on its ability to remain in the shadow of disrepute. 7 Statistical Studies on Criminal Case Outcomes - Like early scholars, numerous researchers conducting studies in the statistical tradition throughout the decade of the mid-70s and `80s found that the type of attorney a defendant retains (i.e, private versus publicly provided) is associated with case outcomes. Among them, Clarke and Koch in 1976, Swigert and Farrell in 1977, Lizotte in 1978, Sterling in 1983, and Holmes, Daudistel, and Farrell in 1987 all found that retention of a Public Defender was associated with

unfavorable results. At this same time, other researchers in this tradition were finding that private and publicly provided attorneys perform comparably. These latter investigators included Hermann, Single and Boston in 1977, Wheeler and Wheeler in 1980, and McDonald in 1983. In addition to this debate, however, greater attention was being paid to how the characteristics of the defendants themselves influence case outcomes. 7 This was somewhat validated by my own observation of the history of a private, non-profit corporation of court-appointed defense attorneys that, while possessing a superb reputation, ultimately lost its contract with the county. See Emmelman (2003) for more details on this 7 Source: http://www.doksinet Perhaps spawned by Ronald Farrell’s (1971) Class Linkages of Legal Treatment of Homosexuals, much of the debate among quantitative researchers in this time period focused on the effect of the defendant’s social class on case outcomes. In 1974, John Hagan

found that there was some evidence of differential sentencing on the basis of social class in capital cases, but that the relationship between these factors in non-capital cases was statistically insignificant. In 1975, Theodore G Chiricos and Gordon P Waldo published Socioeconomic Status and Criminal Sentencing: An Empirical Assessment of a Conflict Proposition. Testing Chambliss and Seidman’s (see their publication in 1982) hypothesis that "when sanctions are imposed, the most severe sanctions will be imposed on persons in the lowest social class", they found no support for the conflict premise. They further argued that their conclusion was strengthened when controls were introduced for "prior record" and other demographic characteristics such as age and race. Similarly, Daniel H Willick, Gretchen Gehlker, and Anita McFarland-Watts found in a 1975 study that severity of sentencing was not related to social class when controlling for the defendant’s record of

prior convictions. Lower class defendants, they found, were more likely to have had previous convictions. In contrast, Clarke & Koch found in a 1976 study that, although defendants incomes do not effect the likelihood of their being convicted of crimes, their incomes do effect the likelihood of their getting prison sentences. And in 1978, Jankovic found that socio-economic status affects the punishment received by persons convicted of drunken driving, while Lizotte (1978) found that laborers and non-whites are more likely to be incarcerated between arrest and final disposition, as well as given longer prison sentences than those from higher socio-economic groups. As time progressed, many social scientists began to broaden their investigations into the influence of defendants’ characteristics on criminal case outcomes to include aspects other than social class. This included Swigert and Farrell’s Normal Homicides and the Law (1977), wherein the researchers found that conformity

to a stereotype of criminality (i.e, the normal 8 Source: http://www.doksinet primitive) along with the social class of the defendant had significant consequences for the assignment of public counsel, denial of bail, a plea of guilt before a judge, and ultimately, more severe sanctions meted out by the court. Similarly, Kruttschnitt, in a 1982 publication, found that non-legal indicators of respectability (including prior psychiatric care, previous drug or alcohol abuse, employer censorship, and peer deviance other than prior criminality) affect the sanctions that female criminal defendants encounter. On the other hand, in testing Kalven and Zeisel’s (1976) “liberation hypothesis”, Barbara Reskin and Christy Visher argued in 1986 that while jurors were influenced by extralegal factors, these effects were largely limited to weak cases in which the state presented little hard evidence. And finally, in 1987, Malcolm D Holmes, Howard C. Daudistel and Ronald A Farrell (1987) found

that social status has only little direct effect on charge reductions and that this effect is not in the direction which would be expected: instead, minorities receive less severe responses. As we have seen, statistical studies in the mid-70s through the mid-80s continued to debate whether largely poor and otherwise low-status defendants received equitable legal representation. On balance, all the researchers found, and continue to find, disparities However, most of these disparities have been found to occur at sentencing rather than at earlier adjudicative stages. Moreover, the causes of these disparities were frequently attributed to legal variables such as strength of the evidence and prior record. Thus, that incompetent or unethical defense counsel was the reason for differential case outcomes was increasingly being discredited. RESEARCH FROM THE MID-80S TO TODAY: TALKING JUSTICE AND INJUSTICE Since the mid-80s, we have seen a greater emphasis on the role of linguistic devices,

language systems and common culture in criminal courts. In particular, Douglas Maynard began in this decade to examine plea bargaining through the lens of conversation analysis. Among his 9 Source: http://www.doksinet various publications, he described two conversational techniques for depicting defendants (1982), how discourse generally emerges in plea bargaining (1984), and how narratives are structured during plea bargaining sessions (1988). More recently, Iris Halldorsdottir (2006) examined the use of texts in attorney-client interaction and described how their use reveals the practical projects that speakers are advancing, in this instance, the lawyer’s concern to build a workable defense and advise the client. In 1995, Gregory Matoesian’s research on the Kennedy Smith rape trial explored the manner in which cultural stereotypes (gender stereotypes in particular) were evoked through linguistic strategies employed during trials. And in 1998, John Conley and William O’Barr

investigated how power, in general, is realized not through material conditions in the Marxist sense, but through discourse. Also in 1998, James Nolan and Saundra Davis Westervelt examined the victimization defense as a type of narrative that emerged as the consequence of broadly changing cultural sensibilities. In this study, we get a clearer idea of how the legal system and defense strategies in particular, are not only shaped by culture but also reaffirm and may play a role in transforming culture as well. And finally, how linguistic devices perpetuate oppression through the legal system was the subject of Anthony Amsterdam and Jerome Bruner’s 2000 book, Minding the Law. These authors asserted that the practice of law relies on storytelling that is grounded in the general culture of a society, that this storytelling involves obligatory plots, and that these narratives reaffirm and maintain the status quo. This brings me to what is one of the most recent publications on criminal

defense work, my own book, entitled Justice for the Poor (2003). In this book, I bring to bear most of the issues discussed throughout this paper. Upon examining the behavior of one group of courtappointed defense attorneys, I find that these attorneys were indeed legally ethical (or ‘procedurally just’), that procedural justice frequently involved plea bargaining, and yet, that case outcomes were unduly shaped by the defendant’s social class and were therefore 10 Source: http://www.doksinet ‘substantively unjust’. This occurs because the defense attorneys are compelled to employ the cultural rhetoric of “common sense”, defined as the largely shared values, beliefs and norms of the status quo. In this exposition, we see that discourse, narratives, and/or storytelling are assumed to merge with culture into a single language system (or cultural domain of meaning) that, drawing upon the work of Kenneth Burke (1969; 1989), I refer to as “the grammar and rhetoric of

common sense”. I conclude that poor defendants and their allies typically lack the commonsense rhetoric (or cultural resources) to favorably influence those who determine criminal case outcomes. Thus, it is not the incompetence of publicly provided attorneys, but instead the cultural practices of the status quo, that oppress poor defendants. 8 DISCUSSION AND CONCLUSION So what does all this mean? Have criminal defense services improved since the classical research of the 1960s, or are we merely looking at the issue differently? I would argue that there has been no evidence provided to date that indicates criminal defense service is getting worse. In fact, the most recent research appears to show the opposite Yet, and this is a most important caveat, political climates change, and to my knowledge, certain governments today clearly appear to have little or no interest in protecting the rights and freedoms of the criminally accused. It seems, therefore, that we must be vigilant and

continue our quest to seek out and remedy the sources of inadequate defense service in our legal systems. But how might we do this? 8 More specifically, the legal battles in which the public defenders engage are story-telling battles wherein the parameters of their war along with their ‘weapons’ for battle are prescribed and circumscribed by two cultural domains of meaning. These are ‘legal expertise’ and ‘common sense’ Common sense is a system of meaning assumed to be maintained by judges and jurors, and poor criminal suspects typically lack such compelling cultural rhetoric in order to persuade judging authorities of their moral integrity. 11 Source: http://www.doksinet Unfortunately, I feel unprepared to provide any definitive answer to this question. I can only suggest what might be some promising routes. Given what appears to be (at least in the United States) reluctance to provide any but the most token measures to protect our constitutional rights and freedoms,

we might consider how we can better utilize our limited resources. For example, the most recent investigations into criminal defense tactics indicate that these negotiations involve various linguistic devices. Thus, we might ask whether there are any common narrative structures or storytelling strategies that permit us to successfully challenge what appear to be largely cultural impediments to protecting the rights of criminal defendants. Some scholars have suggested that there could be For example, some have found that the Law encompasses a number of vaguenesses or contradictions whereby social actors might successfully litigate alternative definitions of reality. 9 If researchers were to focus more closely and systematically on these accomplishments, we may uncover some practical strategies for better defending disenfranchised persons. Similarly, Markus Dubber (2006) has very recently argued that the “sense of justice” is a uniquely human, universal, and yet learned form of

empathic role-taking, but regrettably, one that is absent in our criminal justice system. If Dubber’s account is accurate, it too begs the question of how legal scholars and attorneys might discover, cultivate and/or appeal to the sense of justice in their legal negotiations. To sum up, the short history of research in the area of criminal defense indicates that the problem of providing effective service is less an issue of incompetent attorneys than it is one of linguistic ineffectiveness rooted in differing cultural “packages” born by the various participants in the legal drama. Future inquiries might focus on how to overcome these symbolic obstacles. 9 See for example, Amsterdam and Bruner (2000), Bannister and Milovanovic (1990), Ewick and Silbey (1998), Sarat and Kearns (1998a; 1998b) and Silbey (1992). 12 Source: http://www.doksinet REFERENCES Amsterdam, Anthony G. and Jerome Bruner 2000 Minding the Law: How Courts Rely on Storytelling, and How Their Stories Change

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