A Patchwork of Policies: Justice, Due Process, and Public Defense Across American States
In this article we examine state policies on three key stages at which the right to counsel may be critical: bail hearings (that may set bail or establish charges); pretrial, plea, and trial hearings; and appeals of convictions. It is not our intention to provide an analysis of the legal reasoning that establishes the right to counsel (and explores its constitutional limits)—that has been done, and done well, elsewhere. Our purpose is to examine the structure of state programs from a social scientific perspective to help better inform legal and policy debate on the topic. We shall first describe the dimensions on which public defense programs vary. We then outline the legal and logical arguments, and summarize the available empirical evidence about the value of legal counsel under varying economic incentives and structures, with specific attention to research that aims to explain how variation in right to counsel provisions affects case outcomes. Next, we consider the social science literature that suggests that political, cultural, and economic factors systematically shape the character of criminal justice policy, and specifically due process policy. We then turn to an inventory of state law and policy on the provision of counsel at these points, and we conduct an exploratory examination of the political and structural factors that may be associated with variation in state policies. Finally, we turn to a discussion of the varying sources of authority in the creation of policy in this critical area of due process, with some reflections on the prospects for reform.