Holistic Defense

The Setting:

The Problem: Since the formation of public defender offices, defense attorneys have sometimes incorporated social workers into the criminal defense team. More recently, some social worker involvement has extended to the provision of services that go beyond the clients’ legal needs. A minority of states (about 14) currently make use of this holistic defense approach, and some are working to expand their use of social workers. Other states are considering whether to adopt a holistic defense approach that incorporates social workers. But there is no credible evidence that incorporating social workers into the criminal defense team, as opposed to advising defendants to make use of social services available in their communities, improves either criminal justice outcomes or improves defendant quality of life. There is also no evidence to suggest that lawyers allocate scarce social worker resources well.

The Questions: Does integrating social work services into the public defense team reduce recidivism and improve other outcomes for defendants? How well do public defenders determine which defendants would most be helped by a social worker?

The Study: Working with Sarah Buchanan, Director of Social Services at the Knox County Public Defender’s Community Law Office, the A2J Lab has designed a four-site, double-randomized evaluation to be implemented in multiple jurisdictions in Tennessee. In all four sites (Jackson, Franklin, Kingston, and Knox Counties), the RCT will investigate whether outcomes with a social worker as part of the criminal defense team are different from those where defendants are invited to take advantage of social workers in their communities. In Knox County, after attorneys make a provisional decision regarding incorporation of a social worker into the criminal defense team, the A2J Lab will randomize each potential client into one of two groups (the first level of randomization). In the first group, the attorney’s decision will be followed; in the second group, a random decision will replace the attorney’s. Among that second group, a computer-based randomizer will “decide” whether the defendant will be offered a social worker as part of the criminal defense team. In the other three counties, a randomizer will determine whether the defendant is offered a social worker as part of the criminal defense team; these three counties will not evaluate attorney triage decisions. In all the sites, the study team will follow various outcomes for each participant, including recidivism, for two years after randomization.

What We’ll Learn: The RCT design will discover how effective incorporating a social worker into the criminal defense team is at decreasing recidivism as well as housing insecurity, unemployment, and other risk factors for future criminal behavior. The double randomization in Knox County will also determine how successful lawyers are at determining which clients would most benefit from the scarce social worker resources.

Research Team: 
Sarah Buchanan (formerly of TN Pub Def Office)
April Faith-Slaker, Executive Director, Texas Access to Justice Commission

The Setting: This research focuses on the effects of prompt access to quality representation in misdemeanors and petty offenses in Nairobi, Kenya and Tunis and Sousse, Tunisia. The International Legal Foundation (“ILF”) provides the holistic public defense model of representation that is the subject of the evaluation. The ILF strives to provide quality representation at the earliest point possible in the justice system process where release and avoidance of unnecessary pre-trial detention exists. In Tunisia, that is at the police station after arrest. In Kenya that is at the first court appearance.

The Problem: In both locations, the number of low- and middle-income individuals not able to afford counsel on their own in misdemeanor and petty offense criminal matters far exceeds the capacity of the ILF offices. Despite a National Legal Aid Act in Kenya and a right to counsel codified in both nations, there are virtually no government-paid lawyers for the accused who cannot afford them. In practice, lawyers are not appointed in misdemeanor or petty offense cases notwithstanding a right to such counsel on paper, principally because those in the system know that counsel is not presently available. Thus, even in Tunisia, where the ILF is established, the present standard of care for the accused is more often than not no counsel.

In addition, while there is some research suggesting that early provision of counsel improves the criminal justice outcomes for the accused, that research (i) is sporadic, (ii) was generated entirely in the United States legal setting, (iii) provides no information at all on whether improvement in criminal justice outcomes translates into better socioeconomic outcomes, and (iv) does not address cost effectiveness.

The Questions: We hypothesize that adding quality representation at this stage will increase release without bail or other conditions and will result in decreased time to disposition and decreased days of incarceration. We expect in both locations that because criminal justice outcomes improve, resulting in fewer days of incarceration and less time awaiting disposition, economic welfare will improve. We further hypothesize that prompt access to quality representation will create more transparency between the justice system and the accused, creating greater trust in the system itself. Finally, we expect family stability to improve when periods of incarceration decrease.

The Study: In Tunisia, partners in government institutions and civil society, as well as police themselves, notify the ILF when accused are arrested and awaiting prosecutorial review. This referral happens within 24 hours for infractions and 72 hours for misdemeanors. The ILF attorneys conduct an intake interview with detained potential clients at the police station. Because the police allow only attorneys to meet with detainees, the ILF attorneys themselves conduct an informed consent process.

In Nairobi, Kenya, the ILF attorneys appear at the courthouse to learn which clients need prompt access to quality representation. To explain, within 24 hours of an arrest (usually), the police transport an accused to the court for a “first appearance” hearing, at which a judge considers whether to release the defendant. In Kenya, a release order is conditional on the defendant’s posting monetary bail, and thus such “release” is frequently illusory because few defendants have the required amount in liquid assets. Before and around the first appearance hearing, both paralegals and attorneys are permitted access to detainees. The ILF will station paralegals at the courthouse to conduct an informed consent process.

Consenting study participants are randomly assigned to either the Enhanced Services Group, where they receive the full suite of ILF services, or the Status Quo Group, where they do not receive ILF services.

What We’ll Learn: Primary outcomes include whether early intervention of counsel reduces the number of days of incarceration pre-trial^[1] improve final dispositions, and improves time to disposition. Secondary outcomes include whether there is a concomitant effect on trust in the judicial system and socio-economic welfare (such as family security), with the hypothesis that both will improve.

[1] We prefer to use the number of days of pre-trial incarceration, rather than whether a judge orders release at a first appearance hearing, as a measure of counsel’s effectiveness because at least in the United States, defendants released pre-trial are frequently re-arrested (or re-incarcerated for failure to appear at a hearing), making an exclusive focus on the judge’s first appearance decision a misleading measure of what the defendant experiences pre-trial.

The Research Team:
D. James Greiner, Faculty Director, Access to Justice Lab; S. William Green Professor of Public Law, Harvard Law School
Renee L. Danser, Associate Director of Research and Strategic Partnerships, Access to Justice Lab
International Legal Foundation
Lenson Njogu, OGW, C. Med. (Kenya)
Global Assistance & Consulting (Tunisia)