Hostname: page-component-848d4c4894-r5zm4 Total loading time: 0 Render date: 2024-06-21T17:02:01.050Z Has data issue: false hasContentIssue false
  • English
  • Français

State Politics and the Right to Counsel: A Comparative Analysis

Published online by Cambridge University Press:  01 January 2024

Andrew Lucas Blaize Davies  and
Alissa Pollitz Worden
Get access Rights & Permissions [Opens in a new window]

Abstract

One of the most significant recent developments in the study of crime and justice is the emergence of theoretical explanations for the dramatic changes in criminal justice policy over the past few decades. These theoretical accounts address not only highly visible developments, such as the meteoric rise in incarceration rates, but also less-conspicuous shifts in due process and civil liberties, and they do so by attributing more-repressive policies to the emergence of a political culture that has substantially redefined crime and justice. This article focuses on an important due process issue, the legal representation of indigent defendants in criminal courts. We describe the state of indigent defense policy, particularly structure and funding, across the states in 2002, and analyze variation on two dimensions where states may exercise discretion: the extent to which states assume responsibility for funding services (rather than relying on local governments), and the generosity with which these programs are funded overall. We test hypotheses that link funding for services with the ideology of state political leadership, public values about tolerance and race relations, and states' public welfare policy climates. We find little support for the prediction that a welfare climate shapes more progressive indigent defense policies. However, the results suggest that the racial threat hypothesis helps account for spending on indigent defense, and that Republican control of the statehouse results in the perpetuation of local responsibility for program funding. Normative literature on indigent defense suggests that the patterns we observe may have important consequences for the quality of indigent defense services across states. Further, the findings reported here suggest that the politics of the punitive turn, as it has played out across the states, may be responsible not only for shifts in crime control policy, but for due process policy as well.

Type
Articles
Information
Law & Society Review , Volume 43 , Issue 1 , March 2009 , pp. 187 - 219
Copyright
© 2009 Law and Society Association.

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

Footnotes

The authors are indebted to the Spangenberg Group and the National Center for State Courts for making their data available in the public domain; to Carroll Seron and three anonymous reviewers for their helpful comments; and to Hilary Worden for assistance in data collection. The authors are responsible for all opinions and conclusions expressed herein. Earlier versions of this article were presented at the 2005 meeting of the American Society of Criminology in Toronto, Ontario, and the 2007 meeting of the American Politics Group in Leicester, United Kingdom.

References

References

American Bar Association (1978) Standards for Criminal Justice. Standing Committee on Association Standards for Criminal Justice. Chicago: American Bar Association.Google Scholar
American Bar Association (2004) Gideon's Broken Promise: America's Continuing Quest for Equal Justice A Report on the American Bar Association's Hearings on the Right to Counsel in Criminal Proceedings. Standing Committee on Legal Aid and Indigent Defendants. Chicago: American Bar Association.Google Scholar
Barker, Vanessa (2006) “The politics of punishing,” 8 Punishment and Society 5–32.CrossRefGoogle Scholar
Barrilleaux, Charles (1997) “A Test of the Independent Influences of Electoral Competition and Party Strength in a Model of State Policy-Making,” 41 American J. of Political Science 1462–6.CrossRefGoogle Scholar
Barrilleaux, Charles, Holbrook, Thomas M., & Langer, Laura (2002) “Electoral Competition, Legislative Balance, and American State Welfare Policy,” 46 American J. of Political Science 415–27.CrossRefGoogle Scholar
Barrilleaux, Charles, & Bernick, Ethan (2003) “Deservingness, Discretion, and the State Politics of Welfare Spending 1990–1996,” 3 State Politics and Policy Q. 1–22.CrossRefGoogle Scholar
Barrilleaux, Charles, & Davis, Belinda C. (2003) “Explaining State-Level Variations in Levels and Change in Distribution of Income in The United States 1978–1990,” 31 American Political Research 280–300.CrossRefGoogle Scholar
Beckett, Katherine (1997) Making Crime Pay: Law and Order in Contemporary American Politics. New York: Oxford Univ. Press.Google Scholar
Beckett, Katherine, & Western, Bruce (2001) “Governing Social Marginality: Welfare, Incarceration, and the Transformation of State Policy,” 3 Punishment and Society 43–59.CrossRefGoogle Scholar
Beckett, Katherine, & Sasson, Theodore (2004) The Politics of Injustice: Crime and Punishment in America. Thousand Oaks, CA: Sage.CrossRefGoogle Scholar
Berry, William D., et al. (1998) “Measuring Citizen and Governmental Ideology in the American States 1960–1993,” 42 American J. of Political Science 327–48.CrossRefGoogle Scholar
Bohne, Brenda H. (1978) “The Public Defender as Policy Maker,” 62 Judicature 176–84.Google Scholar
Brace, Paul, et al. (2002) “Public Opinion in the American States: New Perspectives Using National Survey Data,” 46 American J. of Political Science 173–89.CrossRefGoogle Scholar
Bureau of Justice Statistics (2001) “Indigent Defense Statistics,” http://www.ojp.usdoj.gov/bjs/id.htm (accessed 4 Dec. 2006).Google Scholar
Call, Jack E., et al. (1991) “An Analysis of Rape Shield Laws,” 72 Social Science Q. 774–88.Google Scholar
Christie, Nils (2000) Crime Control As Industry: Towards Gulags, Western Style, 3rd ed. London: Routledge.Google Scholar
De Frances, Carol J., & Litras, Marika F.X. (2000) Indigent Defense Services in Large Counties, 1999. Bureau of Justice Statistics report no. NCJ-184932, Bureau of Justice Statistics, Washington DC.Google Scholar
Dieter, Richard (1994) Millions Misspent: What Politicians Don't Say About the High Costs of the Death Penalty, 2nd ed. Washington, DC: Death Penalty Information Center.Google Scholar
Duffee, David (1990) Explaining Criminal Justice: Community Theory and Criminal Justice Reform. Prospect Heights, IL: Waveland Press.Google Scholar
Eisenstein, James, & Jacob, Herbert (1977) Felony Justice: An Organizational Analysis of Criminal Courts. Boston: Little, Brown.Google Scholar
Elazar, Daniel (1984) American Federalism: A View From the States, 3rd ed. New York: Harper and Row.Google Scholar
Emmelman, Debra S. (1993) “Organizational Conditions That Facilitate an Ethical Defense Posture Among Attorneys for the Poor: Observations of a Private Nonprofit Corporation,” 18 Criminal Justice Rev. 221–35.CrossRefGoogle Scholar
Forsythe, Bill, & Jordan, Bill (2002) “The Victorian Ethical Foundations of Social Work in England: Continuity and Contradiction,” 32 British J. of Social Work 847–62.CrossRefGoogle Scholar
Garland, David (2001) The Culture of Control: Crime and Social Order in Contemporary Society. Chicago: Univ. of Chicago Press.CrossRefGoogle Scholar
General Accounting Office (2000) Welfare Reform: State Sanction Policies and Number of Families Affected. GAO/HEHS-00-44. Washington, DC: General Accounting Office.Google Scholar
Gilens, Martin (1999) Why Americans Hate Welfare. Chicago: Univ. of Chicago Press.CrossRefGoogle Scholar
Greenberg, David F., & West, Valerie (2001) “State Prison Populations and Their Growth, 1971–1991,” 39 Criminology 615–54.CrossRefGoogle Scholar
Guetzkow, Joshua (2004) “Bars vs. Butter: The Prison-Welfare Tradeoff in the U.S., 1970–1996.” Paper presented at the annual meeting of the American Sociological Association, San Francisco.Google Scholar
Harvard Law Review (2005) “Effectively Ineffective: The Failure of Courts to Address Underfunded Indigent Defense Systems,” 118 Harvard Law Rev. 1731–52.Google Scholar
Holbrook, Thomas M., & Van Dunk, Emily (1993) “Electoral Competition in the American States,” 87 American Political Science Rev. 955–62.CrossRefGoogle Scholar
Jackson, Pamela I. (1989) “Minority Group Threat, Crime, and Policy,” 86 American J. of Sociology 1348–86.Google Scholar
Jackson, Pamela I., & Carroll, Leo (1981) “Race and the War on Crime: The Sociopolitical Determinants of Municipal Police Expenditures in Non-Southern U.S. Cities,” 46 American Sociological Rev. 290–305.CrossRefGoogle Scholar
Jacobs, David, & Carmichael, Jason T. (2001) “The Politics of Punishment Across Time and Space: A Pooled Time-Series Analysis of Imprisonment Rates,” 80 Social Forces 61–91.CrossRefGoogle Scholar
Jacobs, David, & Helms, Ronald S. (1996) “Towards a Political Model of Incarceration: A Time-Series Examination of Multiple Explanations for Prison Admission Rates,” 102 American J. of Sociology 323–57.CrossRefGoogle Scholar
Jacobs, David, & Tope, Daniel (2007) “The Politics of Resentment in the Post–Civil Rights Era: Minority Threat, Homicide, and Ideological Voting in Congress,” 112 American J. of Sociology 1458–94.CrossRefGoogle Scholar
Johnson, Martin. (2001) “The Impact of Social Diversity and Racial Attitudes on Social Welfare Policy,” 1 State Politics and Policy Q. 27–49.CrossRefGoogle Scholar
Kelleher, Christine A., & Yackee, Susan W. (2004) “An Empirical Assessment of Devolution's Policy Impact,” 32 Policy Studies J. 253–70.CrossRefGoogle Scholar
Key, Valdimer O. Jr. (1964) Politics, Parties, and Pressure Groups. New York: T. Y. Crowell.Google Scholar
Key, Valdimer O. Jr. (1967) American State Politics: An Introduction. New York: Alfred A. Knopf.Google Scholar
Koven, Steven G., & Mausoloff, Christopher (2002) “The Influence of Political Culture on State Budgets: Another Look at Elazar's Formulation,” 32 American Rev. of Public Administration 66–77.CrossRefGoogle Scholar
Kramer, John H., & Ulmer, Jeffrey T. (2002) “Downward Departures for Serious Violent Offenders: Local Court ‘Corrections’ to Pennsylvania's Sentencing Guidelines,” 40 Criminology 897–931.CrossRefGoogle Scholar
McGarrell, Edmund F., & Duffee, David (1995) “The Adoption of Pre-Release Centers in the States,” 20 Criminal Justice Rev. 1–20.CrossRefGoogle Scholar
McGarrell, Edmund F., & Duffee, David (2007) “Correctional Resources and the Structure of the Institutionalized Environment: A Cross-Sectional Study of the States,” in Duffee, D. & Maguire, E., eds., Criminal Justice Theory. New York: Routledge.Google Scholar
McInytre, Lisa J. (1987) The Public Defender: The Practice of Law in the Shadows of Repute. Chicago: Univ. of Chicago Press.Google Scholar
Mead, Lawrence M. (2004) “State Political Culture and Welfare Reform,” 32 Policy Studies J. 271–97.CrossRefGoogle Scholar
Miller, David Y. (1991) “The Impact of Political Culture on Patterns of State and Local Government Expenditures,” 21 Publius 83–100.Google Scholar
Miller, Edward A. (2004) “Advancing the State of Comparative State Policy Research: Toward Conceptual Integration and Methodological Expansion,” 36 State and Local Government Rev. 35–58.CrossRefGoogle Scholar
Moran, John T., ed. (1982) Gideon Undone: The Crisis in Indigent Defense Funding. Chicago: American Bar Association and the National Legal Aid and Defense Association.Google Scholar
Myers, Martha, & Talarico, Susette (1986) “The Social Contexts of Racial Discrimination in Sentencing,” 33 Social Problems 236–51.CrossRefGoogle Scholar
National Conference of State Legislatures (1999) “State Balanced Budget Requirements,” http://www.ncsl.org/programs/fiscal/balreqs.htm (accessed 4 Dec. 2006).Google Scholar
National Legal Aid and Defender Association (1976) Standards for Defender Services. Washington, DC: National Legal Aid and Defender Association.Google Scholar
Norrander, Barbara (2000) “The Multi-Layered Impact of Public Opinion on Capital Punishment Implementation in the American States,” 53 Political Research Q. 771–93.CrossRefGoogle Scholar
Ogletree, Charles J. (1993) “Beyond Justifications: Seeking Motivations to Sustain Public Defenders,” 106 Harvard Law Rev. 1239–94.CrossRefGoogle Scholar
Peterson, Paul E. (1981) City Limits. Chicago: Univ. of Chicago Press.CrossRefGoogle Scholar
Percival, Garrick (2007) “Testing the Impact of Racial Diversity and Racial Attitudes on Prisoner Re-entry Policies in the U.S. States.” Paper presented at 7th Annual State Policy and Politics Conference, Feb. 23–24, Austin TX.Google Scholar
Piven, Frances F., & Cloward, Richard A. (1993) Regulating the Poor: The Functions of Public Welfare. New York: Vintage.Google Scholar
President's Commission on Law Enforcement and the Administration of Justice (1967) The Challenge Of Crime In A Free Society. Washington, DC: U.S. Government Printing Office.Google Scholar
Sabol, William, & Harrison, Paige M. (2007) Prison and Jail Inmates at Mid-Year 2000, Bulletin #NCJ217675. Washington, DC: Bureau of Justice Statistics.Google Scholar
Sarat, Austin, & Scheingold, Stuart, eds. (1998) Cause Lawyering: Political Commitments and Professional Responsibilities. New York: Oxford Univ. Press.Google Scholar
Scheingold, Stuart (1984) The Politics of Law and Order: Street Crime and Public Policy. New York: Longman.Google Scholar
Scheingold, Stuart (1991) The Politics of Street Crime: Criminal Process and Cultural Obsession. Philadelphia: Temple Univ. Press.Google Scholar
Simon, Jonathan (2007) Governing through Crime: How the War on Crime Transformed American Democracy and Created a Culture of Fear. Oxford, United Kingdom: Oxford Univ. Press.Google Scholar
Slack, Paul (1988) Poverty and Policy in Tudor and Stuart England. London: Longman.Google Scholar
Snellenberg, Sidney C. (1985) “The Normative Case For Indigent Defense Systems,” 10 American J. of Criminal Justice 22–40.CrossRefGoogle Scholar
Sorenson, Jon, & Stemen, Don (2004) “The Effect of State Sentencing Policies on Incarceration Rates,” 48 Crime and Delinquency 456–75.Google Scholar
Soss, Joe, et al. (2001) “Setting the Terms of Relief: Explaining State Policy Choices in the Devolution Revolution,” 45 American J. of Political Science 378–95.CrossRefGoogle Scholar
Spangenberg Group (2000) Contracting for Indigent Defense Services: A Special Report. Office of Justice Programs. Washington, DC: U.S. Department of Justice.Google Scholar
Spangenberg Group (2003) “State and County Expenditures for Indigent Defense Services in Fiscal Year 2002,” http://www.abanet.org/legalservices/downloads/sclaid/indigentdefense/indigentdefexpend2003.pdf (accessed Dec. 2005).Google Scholar
Spangenberg Group (2004) “Statewide Indigent Defense Systems: 2004,” http://www.abanet.org/legalservices/downloads/sclaid/indigentdefense/stateinddefsystems2005.pdf (accessed Dec. 2005).Google Scholar
Strickland, Shauna M. (2005) State Court Caseload Statistics: Supplement to Examining the Work of State Courts. Williamsburg, VA: National Center for State Courts.Google Scholar
Stucky, Thomas D., et al. (2005) “Partisan Politics, Electoral Competition and Imprisonment: An Analysis of States Over Time,” 43 Criminology 211–47.CrossRefGoogle Scholar
Stucky, Thomas D. (2007) “A Bigger Piece of the Pie? State Corrections Spending and the Politics of Social Order,” 44 J. of Research in Crime and Delinquency 91–123.CrossRefGoogle Scholar
Tonry, Michael (2004) Thinking About Crime: Sense and Sensibility in American Penal Culture. New York: Oxford Univ. Press.Google Scholar
Tweedie, Jack (1994) “Resources Rather Than Needs: A State-Centered Model of Welfare Policymaking,” 38 American J. of Political Science 651–72.CrossRefGoogle Scholar
Ulmer, Jeffery T., & Johnson, Brian D. (2004) “Sentencing in Context: A Multilevel Analysis,” 42 Criminology 137–75.CrossRefGoogle Scholar
U.S. Census Bureau (2000) “State Government Finances,” http://www.census.gov/govs/www/state.html (accessed Dec. 2005).Google Scholar
Weiss, Michael Scott (2004) Public Defenders: Pragmatic and Political Motivations to Represent the 3 Indigent. El Paso, TX: LFB Scholarly Publishing.Google Scholar
Williams, Jackson (2003) “Criminal Justice Policy Innovation in the States,” 14 Criminal Justice Policy Rev. 401–22.CrossRefGoogle Scholar
Worden, Alissa P. (1991) “Privatizing Due Process: Issues in the Comparison of Assigned Counsel, Public Defender, and Contracted Indigent Defense Systems,” 14 Justice System J. 390–418.CrossRefGoogle Scholar
Worden, Alissa P. (1993) “Counsel for the Poor: An Evaluation of Contracting for Indigent Criminal Defense,” 10 Justice Q. 613–38.CrossRefGoogle Scholar
Worden, Alissa P., & Worden, Robert E. (1989) “Local Politics and the Provision of Indigent Defense Counsel,” 11 Law and Policy 401–24.CrossRefGoogle Scholar

Cases Cited

Argersinger v. Hamlin, 407 U.S. 25 (1972).CrossRefGoogle Scholar
Gideon v. Wainwright, 372 U.S. 335 (1963).Google Scholar
Powell v. Alabama, 287 U.S. 45 (1932).Google Scholar