Academic journal article Albany Law Review

What Is the State of Empirical Research on Indigent Defense Nationwide? A Brief Overview and Suggestions for Future Research

Academic journal article Albany Law Review

What Is the State of Empirical Research on Indigent Defense Nationwide? A Brief Overview and Suggestions for Future Research

Article excerpt

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.

I. 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.

II. 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. …

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