PAST PRESENT AND FUTURE:
RESEARCH INTO ADVOCACY FOR CRIMINAL DEFENDANTS*
by
Debra S. Emmelman, Ph.D.
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.
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
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
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
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
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 DA's 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
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 prosecution's 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
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
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
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
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
‘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
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
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