Gender and Professional Values in the Criminal Bar

ABSTRACT

This study is a theoretical application and empirical test of difference theory in the context of private criminal law practice. Difference theory posits that gender is associated with variation in perspectives on justice and morality, and examination of mainstream professional values in the legal system reveals those values to emphasize what are thought to be masculinist values. Hence it is hypothesized that female lawyers will depart from male norms in their expressions of professional values. Results of a survey of practicing lawyers reveals limited support for these theoretical predictions; although male respondents express more extreme advocacy of due process and defendants' rights, women and men differ little in their attitudes toward punishment issues and cynicism regarding defendants.     

The feasibility of a brief evaluation of mental state at the time of the offense

If psychological evaluations of criminal defendants could be performed in the community on an outpatient basis rather than in a distant state hospital on an inpatient basis, substantial savings could result and defendants' rights to speedy trial, bail, and the least restrictive alternative would more likely be respected. The authors thus developed a protocol, the mental state at the time of the offense screening evaluation (MSE), designed to enable outpatient evaluatiors to “screen out,” in the course of a brief interview, those defendants whose alleged criminal conduct clearly was not caused by “significant mental abnormality.” They tested the validity of the MSE by having pairs of mental health professionals use the MSE to evaluate 36 criminal defendants. The professionals' conclusions were then compared with the conclusions of state hospital professionals who performed a comprehensive evaluation of each defendant. They were also compared to court adjudications of the defendant's criminal charges. They found that the MSE screened out a large proportion of defendants (sufficient to suggest an improvement in cost-efficiency) without prejudice to those defendants who might have a valid legal defense.     

The Way in Which Fee Reductions Influence Legal Aid Criminal Defence Lawyer Work: Insights from a Qualitative Study

This article examines how fee reductions influence criminal defence lawyers’ work. Data from 29 qualitative interviews with English defence solicitors and barristers are analysed in order to understand the way in which cuts to fees paid by government for criminal legal aid work can operate to influence criminal defence lawyers’ working practices. I use game theory and Bourdieu's concepts of habitus and field to build a theoretical construct illustrating the invidious position current financial conditions place criminal legal aid lawyers in. I argue that these conditions reward and encourage perceived poor practices and values to thrive at the expense of other concerns – such as the conviction of the guilty, acquittal of the innocent, fair treatment of both victims and defendants, and value for the taxpayer. Ultimately, I argue that criminal legal aid lawyers are set up to fail by the current financial conditions within which they must work.     

中国刑事辩护制度发展的命运——以建立中国控辩协商制度为视角

从立法的角度看,中国刑事诉讼法的修改,无疑是中国刑事司法改革的一个巨大进步,甚至有人把它说成是刑事诉讼立法科学化、民主化的“一个重要里程碑”也不为过。然而,在司法实践中,就刑事诉讼法的修改对中国刑事辩护制度所引起的实质性影响而言,不仅不是巨大进步,而且是严重倒退。中国的刑事辩护正面临着让立法者始料不及的艰难困境。中国目前的辩护制度状况尚无法满足辩诉交易中国化的基本要求。只有实现中国辩护律师队伍的专业化,赋予中国律师必要的辩护权利和执业保障权利,才能使得辩诉交易在中国移植后,被告人有适格的辩护律师提供帮助,以确保其在控辩协商中得到公平对待。     

Speaking of Justice: A Qualitative Interview Study on Perceived Procedural Justice Among Defendants in Dutch Criminal Cases

Qualitative interviews with one hundred defendants in Dutch criminal cases examine whether perceived procedural justice is a relevant concern for defendants, and, if so, which procedural justice components they refer to. The study provides a point of epistemological departure from the quantitative studies dominating the field, as it assessed which components of procedural justice (if any) respondents put forward themselves rather than asking about predetermined procedural justice components. The large majority of respondents mentioned procedural justice issues themselves, and six components were at the core of their procedural justice perceptions: (1) information on which decisions are based, (2) interpersonal treatment, (3) due consideration, (4) neutrality, (5) voice, and (6) accuracy. Although these procedural justice components largely correspond with the literature, respondents thus mentioned some components more often, and others less often, than the literature would suggest. In particular, neutrality plays an important role in the Dutch legal context examined here.     

Defining determinacy: Components of the sentencing process ensuring equity and release certainty

Determinate sentencing has gained in popularity in recent years, yet the specific meaning of determinacy is not universally accepted. Determinacy is viewed as a means for providing prisoners with release certainty, a mechanism for increasing fairness in the sentencing process, or both. The purpose of this paper is to define the components of determinacy and to articulate the conditions of the sentencing and post-adjudication process necessary to fulfill these criteria. The discussion of fairness in sentencing is restricted to issues of procedural equity, or the degree to which sentencing decisions are made reliably. Release predictability involves providing inmates early in their prison stays with knowledge concerning their release dates. Sentencing equity and predictability depend on how the sentencing model is structured to deal with a series of discretionary decisions affecting criminal defendants throughout the judicial and correctional process. Six choice points are considered, three pertaining to the adjudication process and three to the post-adjudication period. Relevant to the adjudication process are: (1) the decision to incarcerate; (2) characteristics of the penalty scaling system, including numbers of penalty ranges and offense categories, and overlap among penalty ranges; and (3) other mechanisms, including aggravating and mitigating circumstances and concurrent and consecutive sentences. The following post-adjudication processes were addressed: (4) the parole review process; (5) the use of good time; and (6) revocation from supervised release. Explication of the criteria for procedural equity and predictability should aid in defining parameters necessary for effective reform.     

Speedy trial and the legal process

The role of speedy trial in state proceedings is empirically investigated for defendants in criminal homicide (N=444). Employing multiple regression techniques, an assessment is made of the relationship between the length of time involved in defendants' legal processing, their sociolegal status, and the final dispositions awarded by the court. The findings show that blacks and jailed defendants are processed more swiftly than their white and bailed counterparts. The consitutional guarantee of speedy trial also appears to be a state resource, in that cases adjudicated promptly result in higher conviction rates than those which are delayed. This is especially so for defendants who are not released on bail, and may be attributed to the prosecutorial success that accompanies the availability of witnesses whose memories are unclouded by time and the existence of a social climate that calls for retribution. While not related to postponement in the present study, it is suggested that the efforts of counsel in obtaining delay may become increasingly important with the adoption of the new federal guidelines.     

Procedural justice and parents' satisfaction in a field study of child custody dispute resolution

The relative importance of procedural and distributive factors for satisfaction was tested in a field study of 71 couples who were randomly assigned to mediate or litigate their child custody dispute. Multiple regression analyses showed that procedural factors (decision control and respect) and distributive factors (feeling of winning what one wanted) were equally influential for parents' satisfaction as a group. However, the relative importance of procedural fairness and outcome favorability differed depending on disputant gender, favorability of outcomes, and level of conflict in the relationship. Support was found for Tyler's (1989) assertion that the specific procedural factor of decision control is especially important in dispute resolution settings. However, contrary to expectation, decision control was relatively more important to satisfaction in mediation than in litigation. It is suggested that the type of allocation setting may not be as influential for satisfaction as participants' status in the proceedings and their perceptions of the level of conflict.     

The Effects of Changes to Legal Aid on Lawyers' Professional Identity and Behaviour in Summary Criminal Cases: A Case Study

This article explores the effects of changes to legally aided representation on criminal cases in magistrates' courts according to data collected in an area of south‐east England. I consider the political factors that motivated changes to legal aid and suggest how these issues affecting lawyers' understanding of their role, and how that understanding affects the relationships between defendants, lawyers, and the magistrates' courts. I argue that the research indicates a potential relation between solicitors' risk‐taking behaviour in obtaining funding and the reintroduction of means testing: remuneration rates affect the service that defendants receive and the reintroduction of means testing decreased efficiency in summary criminal courts. Ultimately, I argue that changes to legal aid funding have increased lawyers' uncertainty about their role, leaving them torn between acting efficiently and providing a good level of service.     

The construction of allegedly abused children’s narratives in Scottish criminal courts

This study investigated lawyers’ use of social narratives surrounding child sexual abuse when questioning 66 5- to 17-year-old alleged victims in Scottish criminal courts using a mixed-methods approach. Thematic analysis found that the use of beliefs and stereotypes varied depending upon the lawyers’ role (defense/prosecution), children’s age, and the alleged victim-defendant relationship. These findings were investigated further using narrative analysis, which showed that, with increasing age and decreasing familiarity with defendants, narratives increasingly focused on the characteristics and actions of the victims rather than the defendants. Older children contributed more to narratives than younger children, but their contributions were only incorporated into the prosecutors’ narratives. Defense lawyers adopted more victim-blaming tactics as the narratives developed. Findings suggest that the criminal justice system, practitioners, and researchers must do more to recognize and guard against the reinforcement of stereotypes that may influence public rhetoric and jury decision-making.     

Situated Justice: A Contextual Analysis of Fairness and Inequality in Employment Discrimination Litigation

A substantial body of sociolegal scholarship suggests that the legitimacy of the law crucially depends on the public's perception that legal processes are fair. The bulk of this research relies on an underdeveloped account of the material and institutional contexts of litigants' perceptions of fairness. We introduce an analysis of situated justice to capture a contextualized conception of how litigants narrate fairness in their actual legal encounters. Our analysis draws on 100 in‐depth interviews with defendant's representatives, plaintiffs, and lawyers involved in employment discrimination lawsuits, selected as part of a multimethod study of 1,788 discrimination cases filed in U.S. district courts between 1988 and 2003. This article offers two key empirical findings, the first at the level of individual perceptions and the second at the level of legal institutions. First, we find that neither defendants' representatives nor plaintiffs believe discrimination law is fair. Rather than sharing a complaint, however, each side sees unfairness only in those aspects of the process that work to their disadvantage. Second, we demonstrate that the very notion of fairness can belie structural asymmetries that, overall, profoundly benefit employers in employment discrimination lawsuits. We conclude by discussing how a situated justice analysis calls for a rethinking of empirical research on fairness. Audio recordings of respondents quoted in this article are available online. ¹      

Prison Legitimacy and Procedural Fairness: A Multilevel Examination of Prisoners in England and Wales

The procedural justice model has been widely used as an explanation for understanding legitimacy and compliance with the law, particularly within the context of policing. Central to this model is the importance of procedural fairness—in which the treatment of citizens and offenders by criminal justice agents can play a key role in building legitimacy and influencing compliance with legal rules and values. This paper examines the relationship between procedural fairness and legitimacy within the context of corrections. Drawing on data from a longitudinal survey of more than 3,000 prisoners across England and Wales, we identify an important link between procedural fairness and prisoner perceptions of legitimacy. We further examine variations in legitimacy in terms of individual prisoner characteristics, conditions within prison, as well as differences between prisons.     

刑事诉讼渎职行为及其刑法规制

有案不立,立而不查、查而不破,阻碍律师会见,无充足理由拒绝办理取保候审,强迫认罪认罚,滥用抗诉权,随意否定律师有理辩护且不在判决书中说明具体理由的行为,破坏了我国刑事诉讼秩序,侵害了犯罪嫌疑人、被告人"获得有效辩护"的法益,具有明显的社会危害性和刑事违法性。我国制定了大量规范性文件但治理乏力,需要启动刑罚手段才可能有效遏制。通过解释途径将此类行为入罪化。     

Political Embeddedness and its Impact on Chinese Lawyers’ Practices in Criminal Defense Cases

Based on survey data of 348 lawyers in Fujian, this study empirically tests how lawyers' political embeddedness (i.e., lawyers' bureaucratic, instrumental, and/or affective ties to the courts and prosecutors) has impacted upon their defense practices in criminal trials and their pursuit of liberal values. Our data reveal that politically embedded lawyers report more (not fewer) difficulties in practice (e.g., in requesting witness testimony in court, requesting new evidence, and requesting new evaluations and investigations of the case). Clients are more satisfied with representation by politically non-embedded lawyers than lawyers who are embedded. Using statistical evidence, this paper analyzes potential reasons and draws out the implications.     

论程序正义视域下的中国刑辩律师困境

律师职业自产生之初就与正当程序有着紧密联系,正是程序正义赋予了律师职业以内在的价值追求.但现今的中国刑事辩护律师却处境尴尬：他们参与刑事辩护率低迷;在刑事诉讼中的各项权利难以保障;有时深受社会公众与媒体舆论的怀疑、攻讦,甚至有可能面临牢狱之灾.一系列问题表明,刑事辩护作为司法程序中的重要环节,正日益失去其维护司法公正的的意义和作用.因此,要突破律师现今面临的种种困境,必须在现念上和制度上进一步落实程序正义.     

认真对待刑事推定

对我国刑事立法和司法中44个推定的实证分析表明,刑事推定在放松控方证明要求的同时又将存疑风险转移到被告人身上,背离了排除合理怀疑的证明标准,直接危及无罪推定原则所保护的价值与利益。对排除合理怀疑的证明标准不应作纯程序的解读,有必要将其与实体意义上的惩罚权相联系。对刑事推定的规制,本质上属于对国家刑罚权的限制,只有在满足相应的实体与程序条件时,才允许适用有利于控方的刑事推定。     

Beyond normative constraints: Declining institutionalism and the emergence of substantive and procedural justice

Popular notions of what it means to be put on trial invariably generate thoughts of the adversarial criminal trial, most often before a judge and jury. However, the criminal trial as the site for the testing of evidence of wrongdoing via a model of proof that proceeds according to prescribed processes in a normative institutional milieu is in decline. Controversially, this decline has been met with resistance from the legal profession, academics, policy makers and other stakeholders seeking to preserve the due process model that defines the criminal trial as an adversarial exchange between state and defendant. While the due process model continues to dominate as popular conceptualisation, the twenty-first century criminal trial has changed to such an extent that it is no longer seen as the quintessential form for the meting out of procedural fairness and testing of state's evidence, that emerged toward the end of the seventeenth century. Rather, the rise of control orders, modifications to the law of evidence, and the right of the accused to confront their accuser, together with the inclusion of non-traditional agents of justice, specifically victims and the community, has brought forward an era of substantive and procedural justice that lies beyond the normative constraints of the criminal trial. Robed counsel and bewigged judges beware; the advent of substantive and procedural justice has allowed for greater innovation transgressing the orthodoxies of criminal law in common law systems of justice. This paper will consider the virtues of the introduction of a transgressive criminal procedure.     

The Social Organization of Legal Services to Indigent Defendants

This article draws together materials portraying appointed counsel services in a variety of jurisdictions to illustrate the role of court organization in shaping legal services to indigent defendants. Many criminal courts are bifurcated into preliminary hearing and trial courts. Legal representation of indigents is frequently organized to parallel these stages. As a result, indigent defendants receive defense services from a succession of different lawyers at different stages of their cases. This occurs in three ways. First, some defendants legally eligible for appointed counsel at the inception of their cases have counsel appointed for them only at the trial court after initially employing their own counsel at the preliminary hearing. The dual court system encourages such one-stage representation by private lawyers by facilitating their withdrawal between stages of a case. Second, indigents may also have different private lawyers appointed to represent them at different stages because judges, interested in efficiently running their court calls, desire that particular lawyers represent indigents in their courtrooms. Finally, defender offices often assign different lawyers to different stages as a result of both the demands by judges that defenders be assigned exclusively to their courtrooms and the costs of delivering continuous legal services in a tiered judicial system. For indigent defendants the sequential system of representation may adversely affect the quality of case preparation and undermine a sound attorney-client relationship.     

Is the Process the Only Punishment?: Racial–Ethnic Disparities in Lower-Level Courts

Although misdemeanors make up the bulk of criminal cases in the United States, the majority of research on court decision-making examines felony sentencing. In contrast to felony courts, lower-level courts are characterized by higher case volumes and increased reliance on informal sanctions, which may contribute to greater racial–ethnic disparities. To assess this possibility, we examine pretrial detention and case processing outcomes for misdemeanants in Miami-Dade County, Florida. Utilizing temporal (detention time) and monetary (bond amount) measures of pretrial detention, we assess whether and to what extent there are racial–ethnic disparities in formal and informal sanctions facing misdemeanants. Results indicate that black defendants, especially black Latinx defendants, face greater informal sanctions (longer detention and higher bond amounts), are more likely to be convicted, and experience more severe formal sanctions than do white non-Latinx defendants. These findings complicate Feeley's (1979) argument about lower-level cases, revealing that black defendants are punished by both the court process and formal sanctions. In this way, “the process is the punishment” for lower-level white and nonwhite defendants, while the punishment is also the punishment for black defendants.