Is It Legal Representation or Clients? : An Empirical Testing of Clients’ Performance and Their Legal Representation in Tulsa County Drug and DUI Programs

The importance of legal representation to a criminal defendant is widely accepted, but the quality of government-provided counsels (particularly public defenders) has continuously been questioned. Based on data from Tulsa County DUI and Drug programs in Oklahoma, the authors tested the impact of legal representation (public defender versus private counsel) on clients?? performance in program, measured by plea terms and program outcome. Initial bivariate analyses showed disparate effect of legal representation, as clients represented by private counsels received better plea terms and fared better in program outcome. This effect, however, disappeared once other variables were controlled. Instead, factors closely related to the clients themselves (e.g., demographic features and their criminal behaviors) significantly impacted their program performance.     

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.     

Local Governance and Redistributive Policy: Explaining Local Funding for Public Defense

In many American states, public defense is provided at the county rather than state level (Langton & Farole 2009 ). Local governments have discretion over implementing and funding the right to counsel, resulting in considerable variability in programs and funding levels. Placing this issue in the theoretical context of redistributive policies and politics, we investigate decisions on funding this service across upstate New York counties. Using as a point of departure Paul Peterson's classic explication of community politics, we first model variation in funding as a function of counties' fiscal capacity, need for services, and costs of supplying legal representation. We also test Peterson's prediction that local political factors will play little if any role in budget decisions. Second, through interviews with program administrators we explore the characters of twelve defender programs in which expenditures departed from the model's predictions. We find that three factors—which we term “influence,” “infrastructure,” and “ideas"”—also vary directly with levels of funding. We conclude with a discussion of the implications of these findings for theoretical thinking about due process policies and local politics, and for policy debate over how best to ensure adequate counsel in criminal court.     

Applying competitive bidding to health care

This paper reviews the empirical literature on competitive bidding for health services under public programs and, in this context, discusses the major issues that must be confronted in designing bidding systems. These issues include the specification of units of service, the selection of winning bidders, the determination of reimbursement for winning bidders, the treatment of losing bidders, and contract enforcement. The paper then illustrates these issues in practice by outlining one possible competitive bidding system for purchases and rentals of durable medical equipment under the Medicare program.     

Foreign lawyers practising national law: temporary counsel in small jurisdictions

Temporary licensing of foreign counsel is not necessarily limited to small jurisdictions, but it is an important, and contested, part of the legal landscape in many small jurisdictions. Small jurisdictions, with small national Bars, face particular problems concerning capacity to practise national law. As this paper shows, small national Bars may simply be running at capacity, or beyond, when a case comes along, the small size meaning a relatively small spike of demand can exhaust spare capacity. Alternatively, perhaps particularly if the national legal profession is a unified one, individual legal practitioners may experience a similar problem of capacity, with none prepared to take on a case which will dominate their working life to the detriment of other cases and other clients. On a different point, dealing with conflicts of interest within a small professional community is an ongoing problem for small jurisdictions. Finally, a small Bar may be too small to support specialist counsel with particular expertise in a particular field of national law.

This article explores the issue of temporary counsel in small jurisdictions through an in-depth case study of licensing in one small jurisdiction, that of the Isle of Man. The topic is approached through a range of methods. Doctrinal legal analysis, drawing particularly on relevant Manx statute, regulation and case-law, is supplemented by historical archival analysis; a detailed analysis of the 468 licences granted in the Isle of Man; and qualitative interviews with a selection of key actors. This study shows a pattern of acclimatisation to the licensing of foreign counsel in the Isle of Man since 1969, the juridification of the process of licensing since 1995, the development of an offshore Manx Bar, and the challenges the licensing system poses to the Manxness of Manx legal proceedings.

Moving beyond the Isle of Man, the paper argues that the national Bar of a small jurisdiction has constitutional significance, and that the impact of a substantially employed licensing scheme can be important in determining the shape of this national Bar. It concludes with a call for a comparative study of temporary counsel in small jurisdictions, taking into account the transnational legal context; and for a fuller consideration of a possible offshore offshore Bar as contributing to a continued relationship between common law jurisdictions in a post-colonial context.     

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.     

Book reviews

During the 1980s correctional officials focused considerable energy on the development of intermediate sanctions as alternatives to incarceration. One such alternative is electronically monitored home detention. Although the electronic monitoring equipment was not commercially available until late in 1984, programs were operating in all 50 states by 1990. This study presents a comparative analysis of three electronic monitoring programs: a program for adults charged with a criminal offense and unable to obtain pretrial release; a program designed as an alternative to incarceration for convicted adult offenders; and a program for adjudicated juvenile burglars. Each program operated in the same jurisdiction, used essentially the same equipment, and imposed similar rules and restrictions on behavior. The analysis focuses on comparisons of program delivery, clients' performance, and programmatic sources of variation. The implications of the findings for future program development and evaluation are discussed.     

The questionable advantage of defense counsel in juvenile court

This article examines the issue of legal representation in serious juvenile delinquency matters in three diverse juvenile courts. The prevalence of legal counsel varied among felony referrals. Out-of-home placement was more likely to occur if a youth had an attorney, even when other relevant legal and individual factors were the same. Within each court, the results showed more likely of placement corresponding to seriousness of the case. Although this escalation was evident among cases with attorneys and those without, placement was more apt to occur when there was legal counsel. Given these findings, we offer recommendations for issues that should be considered and possible policy actions.     

Logic,licensing and public relations

This article focuses on the need to move past First Amendment concerns to foster a meaningful debate about the licensing of public relations practitioners. Whether, and to what extent, public relations should be licensed is not the subject of this discussion. Instead, this article uses Aristotelian logic to dispute the spurious conclusion that any licensing scheme for public relations work and / or the individuals who perform it is unconstitutional on its face. Relying on First Amendment jurisprudence, the article demonstrates that some restraints on speech in the form of licensing are allowed, that not all public relations work involves protected speech or press, that there is a similarity to the constitutionally permitted licensing of certain speech‐related professions and that a hypothetical case can be constructed regarding those who could qualify as licensed public relations counsel. The article concludes that the First Amendment does not necessarily prevent licensing certain public relations practitioners.     

The prospects for prepaid long-term care: the Arizona Medicaid experiment

Arizona is adding long-term care to its prepaid, capitated alternative to Medicaid. This article discusses the potential for this major cost-control experiment. Experience suggests that those able to quality for long-term care will fare better than the poor did in the previous system. However, limiting eligibility will be the primary means of controlling costs; significant price competition is not likely to develop. The bidding process will serve more to transfer risk to contract providers than to improve program efficiency. Potential cost savings will be more than offset by an increased identification of need.     

Does providing a written version of the police caution improve comprehension in the general population?

Abstract

Comprehension of the police caution is extremely poor across a variety of populations and jurisdictions and is particularly impaired in vulnerable populations. This has significant consequences for the admissibility of evidence in court. We investigated whether providing individuals with a written version of the caution would improve comprehension in the general population. Sixty participants (30 with low educational attainment and 30 with high educational attainment) were randomly allocated to one of three groups (Verbal presentation; Written presentation; Verbal and Written presentation). Comprehension in the three groups was evaluated using Cooke and Philip's (1998) Scottish Comprehension of Caution Instrument. Results showed that despite 95% of participants claiming to fully understand the sample caution, only 5% of individuals in the verbal presentation group demonstrated full understanding, compared to 40% and 35% in the written and combined verbal and written groups respectively. This highlights both that individuals' self-reports of understanding are higher than actual comprehension and that providing a written version of the caution may improve comprehension in the general population.     

Medicare program; HCFA market research for providers and other partners--HCFA. General notice with comment period

This notice seeks public comments on information needs of Medicare risk contract health maintenance organizations (HMOs) and competitive medical plans (CMPs) and communication strategies that could improve the effectiveness and efficiency of the risk contract program. Under section 4002 of the Balanced Budget Act of 1997, and with the implementation of the Medicare + Choice program, all HMOs and CMPs will contract with HCFA under requirements of the Medicare + Choice program. The information sought in this notice will facilitate future changes in the contracting program, as well as improve information needs and communication strategies under the current risk program. Respondents should prioritize issues raised in the preliminary research and identify and additional areas of information needs and best communication strategies. This initiative is one component of our overall effort to develop a comprehensive communication strategy with Medicare providers and HMOs/CMPs and to develop innovative approaches that will assist all program participants to obtain and use information in the most accessible and effective manner. Preliminary research on the information needs of Medicare risk contract HMOs and CMPs and effective communication strategies has identified a number of areas in which we could provide additional information and potential strategies for communicating that information effectively.     

Beyond the property debate: animal welfare as a public good

Abstract

Animal protection is socially constructed through laws specifying which animals should be protected and how. Most jurisdictions codify animal abuse by specifying the legal protections granted to animals. While these vary between jurisdictions, western legal systems generally provide for better levels of animal protection by incorporating animal welfare and wildlife crime laws into criminal justice systems. UK legislation has long held that animal welfare is a public good, thus animals should be protected in the public interest. However, despite the protective provisions of animal protection laws they generally fall short of giving animals actual rights, protection exists only to the extent that animal and human interests coincide. Animals’ legal status as property dictates that much anti-animal abuse and wildlife crime legislation is about allowing animal exploitation commensurate with human interests. However, UK legislation in the form of the Animal Welfare Act 2006 subtly shifts this position in respect of domestic animals by imposing a duty of care towards companion animals. This paper argues that by requiring owners and responsible persons to give active consideration to the needs of individual companion animals, the Animal Welfare Act provides animals with a level of protection that amounts to a form of legal rights.     

Predatory bidding in competitive tenders: A Swedish case study

Public procurement by competitive tendering is an important part of European policies to encourage competition in network industries previously dominated by public companies. In recent years, the appearance of very low bids has become an issue in several countries. We discuss predatory bidding from a theoretical, practical and legislative point of view. A case of tendering for train services in Sweden is used to illustrate the possibilities to detect an abnormally low bid. An analysis of projected costs and revenues is complemented with a method using historical data on previous tenders. One conclusion is that there is scope for reform in national competition policies in European Union member states concerning multinational enterprises participating in local tenders. JEL Classification K21 · K23 · L12 · L43 · L92     

Medicare and Medicaid programs; requirements for physician incentive plans in prepaid health care organizations--HCFA. Final rule

This final rule amends the regulations established by a March 27, 1996, final rule with comment period. The regulations govern physician incentive plans operated by Federally-qualified health maintenance organizations and competitive medical plans contracting with the Medicare program, and certain health maintenance organizations and health insuring organizations contracting with the Medicaid program. As explained in the March 27 rule, the provisions of this final rule will also have an effect on certain entities subject to the physician referral rules in section 1877 of the Social Security Act.     

Confidence in the death penalty and support for its use: Exploring the value-expressive dimension of death penalty attitudes

Recent media and political attention has raised public awareness of a number of issues surrounding the death penalty. Questions regarding innocence, fair trials, and equitable access to counsel and the appellate process are ubiquitous in coverage of the death penalty. Adequate information about public attitudes toward the death penalty in light of these issues is currently lacking. In 2002, as part of the annual Texas Crime Poll, questions were asked about confidence in the administration of the death penalty, support for the death penalty, and support for a moratorium. The results indicate that, although a majority of respondents support the death penalty, a substantial proportion lack confidence in its use and support a moratorium on executions. Of those lacking confidence and those supporting a moratorium, strong majorities maintain support for the death penalty (68% and 73%, respectively). These findings suggest that death penalty attitudes may be largely value expressive.     

The Right to Representation by Criminal Defense Counsel in Ethiopia: A Critical Analysis

This paper explores and critically reflects on the legal foundations and the practice of criminal defense in Ethiopia within the overall due process framework of a fair criminal trial. A brief review of Ethiopian constitutional history shows that the right to representation by legal counsel has been one of the fundamental due process rights granted to accused persons in criminal proceedings. The constitutional right to counsel is, however, not specified by detailed legal provisions. A logical consequence of this is that the enjoyment of this right is fraught with legal and practical problems. While the legal problems, among other things, include obscurity regarding the scope and content of the right, the practical problems include absence of public defense offices at district levels where the vast majority of criminal proceedings take place. Consequently, accused persons appear during trials without the aid of legal counsel; they are in fact deprived of their due process rights and marginalized. This has a number of legal ramifications both to the accused and the criminal justice system. In sum, the constitutional provision of the right to criminal defense counsel is undelivered and remains a hollow promise. It is therefore difficult to uphold the constitutional norms which underlie criminal trial process such as procedural justice, as well as the legitimacy of the government. The justice sectors are responsible to ensuring due process and equal protection. Substantial justice reforms are needed at all levels.     

Protecting the Continuing Duties of Loyalty and Confidentiality in Ineffective Assistance of Counsel Claims

The success or failure of an ineffective assistance of counsel claim turns largely on the testimony of trial counsel. It is therefore common for the government to communicate ex parte with trial counsel in order to formulate its response to such a claim. But even after the representation has ended, trial counsel continues to be bound by duties of loyalty and confidentiality to their former client, as well as the attorney-client privilege, subject to a limited waiver relative to information that is reasonably necessary to respond to the ineffectiveness claim. Because of their interests in the litigation, however, neither trial counsel nor the government is positioned to objectively decide what information is covered by that waiver. In order to ensure that trial counsel respects their ethical duties to their former client and to protect the sanctity of the attorney-client relationship, post-conviction courts should prohibit trial counsel from communicating ex parte with the government. These courts should instead require that all such communications take place on the record—ideally at a deposition, but alternatively through affidavits.     

Leveling the Odds: The Effect of Quality Legal Representation in Cases of Asymmetrical Capability

How much does attorney quality influence the outcome of cases in which one litigant is significantly more capable than the other? Using a unique dataset of all asylum merits decision from 1990 to 2010, we find that high quality representation evens the odds for asylum applicants and that not being represented by legal counsel is actually better than being represented by a poor lawyer. In this analysis, we draw on a modified party capability theory and create new measures of attorney capability. We find that variation in attorney capability is a primary driver of the disparity in asylum outcomes in U.S. immigration courts and that a likely causal mechanism for this influence is the judge‐specific reputation of an attorney.