Contingent-Fee Lawyers and Their Clients: Settlement Expectations, Settlement Realities, and Issues of Control in the Lawyer-Client Relationship

One hallmark of Herb Jacob's analyses of criminal courts—extensive consideration of the interaction among actors–was less pronounced in his work on civil justice, which was more focused on institutions and the politics behind the laws that those institutions administered. In the research I report here, my emphasis is squarely on the actors in the civil justice process: the relationship between contingency-fee lawyers and clients, and how that relationship plays out in the settlement process. In Felony Justice, Herb, and his coauthor James Eisenstein, focus on the courtroom workgroup as a case-processing (and, largely, case-settling) machine; clients are relatively peripheral. In my account, clients, both current and future, are extremely important in how the lawyer works to settle cases. In the criminal court workgroup, lawyers do not worry about where future clients will come from because police secure them. In contrast, the contingency-fee lawyer has constant concerns about future clients, and I argue, this concern provides a control over lawyers that prior analyses of the contingency fee have largely missed. This dynamic also may explain why the courtroom workgroups, or court communities, found in the criminal courts do not appear to exist in the civil justice system.     

Roles and Power within Federal Problem Solving Courtroom Workgroups

Problem solving (PS) courts (e.g., drug, family, gang, prostitution, reentry) are becoming more commonplace. Today, PS courts exist or are planned in nearly all of the ninety‐four U.S. federal districts. These courts focus on integrating therapeutic jurisprudence into the courtroom environment while emphasizing group decision‐making processes among courtroom workgroup members. In this legal setting, courtroom workgroup teams, regularly consisting of judges, prosecutors, defense attorneys, probation officers (POs), and treatment providers engage a collective, case management approach to decision making with shared power among team members. However, despite the court's therapeutic and collaborative design, we find that POs wield powerful influence in decision making. Informed by sixteen months of qualitative fieldwork, including semistructured interviews, observation of courtroom workgroup meetings, and court observations in five federal PS courts in three federal districts, we find that POs exert undetected informational, technical, and relational power within the PS courtroom workgroup. This role and its accompanying power transforms POs into key decision makers, regardless of PS court type, workgroup dynamics, and decision‐making style. The POs' role makes them critical contributors to the outcomes in federal PS courts with important implications for punishment decisions in the federal justice system. With an increasing number of PS courts currently in the planning stages at the federal level, our study has implications for the structure and decision outcomes in these growing courtroom workgroups.     

The attitudes of criminal justice workgroups toward intensive supervised probation

In spite of a growing body of literature on the attitudes of the public and selected groups toward crime and punishment, including communitybased corrections, intermediate sanctions, and intensive probation, very little is known about the attitudes of criminal justice workgroups toward intensive supervised probation. Understanding reactions to ISP by criminal justice workgroups is a requisite first step toward overcoming any obstacles or resistance to successful program implementation. This research reports on a survey of criminal justice workgroup attitudes toward ISP in Wyandotte County, Kansas.     

Beyond the Courtroom Workgroup: Caseworkers as the New Satellite of Social Control

Many jurisdictions nationwide are faced with overcrowded jails, backlogged court dockets, and high rates of recidivism for mostly nonviolent offenders. To address these complex problems, law enforcement officials have institutionalized alternatives to incarceration programs, including work furloughs, electronic monitoring, and treatment courts. These recent trends in legal reform are designed to reduce and prevent criminal behavior by helping to reintegrate defendants back into their local communities. One aspect that has been largely unaddressed in prior research is that jail-alternative programs are primarily staffed by caseworkers with outside nonprofit agencies. This important group of nonlegal actors plays a pivotal role in crafting decisions to divert low-level offenders from the criminal justice system; few studies, however, explore the organizational contexts surrounding caseworkers' everyday decision-making practices. In response, I draw upon ethnographic data to analyze the ways that pretrial release caseworkers in a California county evaluate defendants' entitlement to release on their own recognizance. The results of this study suggest that caseworkers exercise discretion beyond the traditional power structure of the courtroom workgroup. I conclude that caseworkers emerge as the new satellite of social control in contemporary courts.     

Sentencing Recommendations by Probation Officers and Judges: An Examination of Adult Offenders Across Gender

Connecting the courtroom workgroup model with attributions and stereotyping based on the focal concerns perspective and gender sentencing literature, the present study investigates the extent to which probation officer recommendations influence judicial sentencing, and whether the gender of the offender further conditions this relationship. Results from logistic and ordinary least squares regression indicate that there is concordance between probation officer recommendations and sentencing by judges. Offender gender has both direct and indirect effects on judicial sentencing through its relationship with probation officer recommendations, and Black males tend to receive lengthier sentences than other race/gender counterparts. These findings provide evidence that probation officer recommendations are an important part of the sentencing process and offer additional insight on how extralegal factors such as gender and race impact criminal justice decision making.     

A MULTILEVEL FRAMEWORK FOR UNDERSTANDING POLICE CULTURE: THE ROLE OF THE WORKGROUP

Relying on a well‐established theoretical paradigm from organizational psychology, the aim of the current inquiry is to apply a multilevel approach to the study of police culture that identifies workgroups as important entities that influence officers’ occupational outlooks. More specifically, we propose that police culture be assessed in a way similar to concepts in criminology, such as collective efficacy and street culture, whereby the shared features of individuals’ environments are considered. Within this framework, we draw on survey data from five municipal police agencies to examine how strongly officers within 187 separate workgroups share culture, as well as the extent to which culture differs across these workgroups. Collectively, the findings suggest that the workgroup serves as a viable context that patterns culture in police organizations. As such, the study provides a way to move beyond conceptualizations of police culture as either a purely monolithic or an individual‐level phenomenon.     

FEDERAL SENTENCING AS A COMPLEX COLLABORATIVE PROCESS: JUDGES,PROSECUTORS, JUDGE–PROSECUTOR DYADS,AND DISPARITY IN SENTENCING

Investigations of how criminal justice actors contribute to variation in sentencing typically focus on the role played by the judge. We argue that sentencing should be viewed as a collaborative process involving actors other than the judge and that the role of the prosecutor is particularly salient. We also contend that the courtroom workgroup literature has suggested that sentences may vary depending on the particular judge and prosecutor to whom the case is assigned. By using a unique data set from three U.S. district courts (N = 2,686) that identifies both the judge and the prosecutor handling the case, we examine how the judge, the prosecutor, and the judge–prosecutor dyad contribute to variance in offender sentences. We do this by employing cross‐classified random‐effects models to estimate the variance components associated with judges, prosecutors, and judge–prosecutor interactions. The results indicate that disparity attributable to the prosecutor is larger than disparity from the judge. Moreover, the role that the judge plays is moderated by the prosecutor to whom the case is assigned, as the judge–prosecutor effect is consistently larger than other random effects across the models. We also find that results vary by judicial district.     

The non-prosecution of human trafficking cases: an illustration of the challenges of implementing legal reforms

Research on the implementation of reforms focusing on policies and practices of the criminal court system reveals that members of the courtroom workgroup often resist or circumvent these legal reforms. This is particularly true if the reforms require changes in the way cases are prosecuted, affect the likelihood of successful prosecution, or impede the efficient and effective processing of cases. In this paper, I demonstrate that the findings of the Farrell et al. study of the prosecution of human trafficking cases are consistent with the larger bodies of research on prosecutorial charging decisions and the implementation of legal reforms. Like reforms designed to enhance the likelihood of successful prosecution of sexual assault and domestic violence cases, the new human trafficking statutes may not be capable of achieving the instrumental effects that those who lobbied for the changes envisioned.     

Female Defendants and Criminal Courts in Taiwan: An Observation Study

It has long been contended that the criminal justice system extends the influence of patriarchy in society. Feminist and critical criminologists have produced countless examples of the male domination in the criminal justice system. Critics of law and criminal justice point out that the system treats women the same way as does the mainstream society (MacKinnon 1989, 1991; Smart 1989). Therefore, criminal justice cannot be expected to remedy injustices legally before they are recognized as injustices socially. Sociological studies in crime and delinquency have also neglected gender issues. By employing the qualititaive research approach of field observation, this study focuses on how practitioners in three criminal courts in Southern Taiwan interact with female defendants. The findings point out that the court system was unbending in treating the observed defendants in a condescending manner, and expedited the trial process to pronounce the defendants’ guilt. The study aims to offer explicit and nuanced empirical evidence of how gender complicates courtroom interaction. Evidence from this study also forms the basis for policy recommendations and future reform in the criminal justice system.     

Relational demography and officer occupational attitudes: The influence of workgroup context

Purpose

Researchers have long held an interest in understanding what role officer demographics play in explaining occupational attitudes. Despite this interest, evidence has consistently shown such relationships to be inconsistent. Using a relational demography framework that is based on the notion that demographic effects are contextual rather than universal across all officers, the current study examines the extent to which officer demographics influences their occupational attitudes when viewed in relation to other officers in their assigned workgroup.

Methods

Surveys of 1,022 patrol officers assigned to 187 workgroups were used to examine demographic effects across a number of occupational attitudes. A series of multilevel modeling techniques were used to test the viability of the relational demography framework.

Results

Certain demographic effects changed or were attenuated after accounting for workgroup membership. Demographic effects were also found to differ across workgroup contexts. Finally, results for job satisfaction indicated that gender and experience effects were dependent upon the demographic and cultural context of the workgroup.

Conclusions

Demographic-attitudinal relationships are influenced by the broader workgroup environment. The results also highlight the importance of taking into consideration non-independence issues associated with attitudes and demographics from both theoretical and analytical perspectives.     

Criminal Jury Trials in 2030: A Law Odyssey

‘Strategic foresight’ is a technique used by institutions to prepare for a technology‐charged future. It involves considering how the institution might look in the future. In doing so, it enables the institution to prepare for and achieve the preferred future. This article explores what the process of strategic foresight has to offer common law criminal justice systems, with a particular emphasis on the role of expert evidence in criminal jury trials. A hypothetical vision for the future set in 2030, which foresees the adoption of technological advances in the courtroom, is compared and contrasted with processes from a 2012 murder trial. We examine how a well‐designed digital courtroom could enhance the delivery of expert evidence. Considering ‘alternative future law scenarios’ can illuminate what a legal system is likely to need in times to come and can identify the necessary steps for beneficial adaptation via research, policies, and training.     

The Politics of Racial Disparity Reform: Racial Inequality and Criminal Justice Policymaking in the States

Racial inequalities in criminal justice are pressing problems for policymakers. Prior literature suggests elected officials promulgate punitive, racially disparate criminal justice policies due to partisanship and racial fears, but scholarship has yet to explain how and why elected officials address racial problems in criminal processing. This article introduces the framework of racial disparity reform policymaking. A racial disparity reform is a policy that seeks to reduce distinctions in criminal justice institutions’ treatment of racial groups. Elected officials pursue these policies due to ideological beliefs in civil rights ideals and political interests in appearing to solve social problems. Using an original database of policy enactments, this article first presents the distribution and types of reform measures adopted by elected officials in all 50 states between 1998 and 2011. It then examines social and political explanations for when state legislatures and executives adopt racial disparity reforms. Policy enactment is predicted by worsening problems of racial disproportion in criminal processing, Democratic control of elected branches, and the absence of judicial efforts to improve racial fairness within a state’s criminal justice system. Similar dynamics encourage the development of different measures types within policies. Such ideological and problem-solving explanations for racial disparity reform show a potential for elected officials to forge more racially just criminal justice practices.     

Do you get what you pay for? Type of counsel and its effect on criminal court outcomes

Although the Sixth Amendment of the constitution guarantees assistance of counsel to indigent criminal defendants, questions exist about the quality of this representation. Critics assert that ‘you get what you pay for’ and that public defenders are less effective than privately retained counsel regarding criminal justice outcomes. Some research, however, reveals that public defenders are as effective as privately retained counsel because of their working relationships with prosecutors and judges, the so-called courtroom workgroup. The current study tested the assertion that ‘you get what you pay for’ by examining the effect of type of counsel (public defenders versus private attorneys) on four different case processing outcomes for a large mid-western jurisdiction. Results generally show that type of counsel has no significant direct effect. Tests for interaction, however, suggest that for some defendants, type of counsel interacts with other key variables to influence certain outcomes.     

Defendants encountering victims in the courtroom: challenges and opportunities of allocution in capital trials for doing restorative justice

ABSTRACT

Allocution is when offenders plead for mercy and offer explanations in order to mitigate punishment. This paper explores the opportunities and challenges inherent in an attempt to do restorative justice through offender allocution in the sentencing phase of capital trials. The essential principles in theories of restorative justice are presented. Then the contexts of allocution in a courtroom and the statements an offender might make in a typical restorative encounter are clearly differentiated. Contributions from the relatively new field of interpersonal neurobiology illuminate the state of mind in which the audience for allocution in a courtroom may be at the time allocution is offered with implications for how allocution might be used, and prepared for. Finally, suggestions are offered for how the opportunity for allocution might be taken up restoratively during capital trials.     

Is the Environment Getting Its Fair Share? An Analysis of the Australian Water Reform Process Using a Social Justice Framework

Australia is currently undergoing fundamental and far-reaching reforms in water management that have been prompted by wide-spread environmental degradation caused by past water management practices. This paper is an extract of a wider study that explores how governments incorporate social justice into water reform policies and how that effort is perceived by non-government stakeholders. Using a comprehensive Social Justice Framework, we used a mixed methods approach that combines a quantitative content analysis of key water reform documents with a qualitative semistructured interview process to identify and analyse three principles of social justice that apply to the environment as a water stakeholder: need as a distributive justice principle, representativeness and accuracy as procedural justice principles. We found that the environment is identified as a legitimate water stakeholder whose needs are meant to be assured through the water reform process. However, the environment suffers from a crisis of identity. Other water stakeholders claim to speak for the environment but say different things. Thus, due to a diversity of voices, strong government intention to satisfy environmental needs is diluted in practice. Furthermore, the prerogative to define and measure environmental needs through science, while deemed to be fair and objective, leads to unintended consequences that complicate management and disenfranchise less scientifically capable stakeholders. Overall, we believe that the formal recognition of the environment as a stakeholder in water reform is a significant forward step but its crisis of identity must be resolved before the environment can fully utilise its new role as a stakeholder.     

The abrogation of subjectivity in the psychiatric courtroom: Toward a psychoanalytic semiotic analysis

Conclusion We examined, on a cursory and suggestive level, the role of desire in the psychiatric courtroom. Employing selected conceptualizations from Lacan's semiosis, we demonstrated how this desire is essentially quashed and silenced by the clinicolegal community. Put another way, given the opinion inBoggs, we see how the essential being and way of knowing for diverse mentally ill citizens, are repressed by the psycholegal establishment. Indeed, followingBoggs, the only knowledge claims embraced by the court were those articulations uttered by experts, and others similarly situated, who spoke the jargon of psychiatric justice. Not only does this decision making deny and invalidate the disparate voices of psychiatric consumers, it limits prospects for developing new and alternative sign meanings in law that more fully represent the experiences of the differently abled and other disenfranchised groups. Thus, regrettably,Boggs symbolizes not only the loss of agency for disordered subjects in the clinicolegal system but, more generally, the law's failure to promote emancipatory justice.     

Procedures, Justice, and Choice In Basic Education Policy

This article is about the way in which justice and procedures are related in the development of policies meeting new claims to choice in basic education. Building upon established approaches to procedural justice, I propose to study the interaction between questions of justice and procedures by way of the "gate model" as developed by Peters (1993) and Habermas (1994). This model is then applied in an analysis of education policymaking in Great Britain and Germany to demonstrate how the procedures through which political decision making is channelled reflect persisting problems of substantive justice.     

Rebecca Roberts introduces this issue of cjm

Abstract

While the pages of Criminal Justice Matters frequently examine and assess criminal justice policies and often make recommendations on how to reform the system, this edition takes a more reflexive approach. Rather than focus on the nature of criminal justice reforms, this issue of cjm shines a spotlight on the reformers.     

Trials and Miscarriages: an evolutionary socio-historical analysis

Periodically miscarriages of justice become newsworthy and inform not only those who may have some responsibility for their occurrence and rectification, but the general public as well. At those times proposals for reform tend to ensue, and reforms occur. But such occasions are rarely considered historically or understood from an evolutionary perspective. This article undertakes to offer that missing feature. It attempts to inform the periodic highly charged discussion of miscarriages of justice with an understanding of their ingredients illustrated by both some recent and some much older history. The article presents the thesis that miscarriages of justice are a component of the workings of all criminal justice systems, part of their operations, rather than their malfunction. It shows how miscarriages of justice are the criminal justice system’s answer to a prior problem, the functional need to convict more persons than can be shown, with certainty, to have committed the crimes of which they have been charged. This thesis has the implication of inserting some modesty into proposals for reform, not to decry their attempts, but to inspire less naivety. The article focuses on the changing methods of the criminal trial, throughout the second millennium and up to the present day, as an expression of the underlying problématique that represents its thesis.     

中国刑事诉讼改革亟需理清的几个问题--以刘涌案为背景的分析

本文以辽宁刘涌黑社会犯罪案件的改判所引发的论战为背景,对与此相关的中国刑事诉讼法制改革亟需理清的几个宏观性问题进行了深入研究,进而提出如下主张刑事司法改革应当适度超越公众观念,但其路径及其力度的选择又要虑及公众的观念形态;大陆法系职权主义刑事诉讼更宜于作为我国刑事诉讼变革的主要摹本;注重细节建设,确保改革措施的可行性与实效性;公平比公正更重要;践行司法独立,提高司法素养,型塑司法权威.