Evidence-Based Practice in Criminal Defense

This interesting paper was recently posted on SSRN:

Jennifer E. Laurin, Gideon by the Numbers: The Emergence of Evidence-Based Practice in Indigent Defense,  Ohio State Journal of Criminal Law, Forthcoming 2015

Abstract: A widespread consensus understands Gideon’s promise to be largely, sadly, unfulfilled. Yet in truth, we possess precious little hard evidence about the state of indigent defense nationally or the actual impact of indigent defense policies on the quality of representation received. A burgeoning but little-noted trend in the field could alter that state of affairs: the push toward adoption of evidence-based practice. Put most simply, evidence-based practice is a paradigm that aims to tether decision-making to empirical, rather than intuitive or experiential, evaluations of practice or policy options. Originating in medicine and already taking hold in isolated sectors of criminal justice policy, evidence-based practice is sprouting in the indigent defense field, spurred on by legislative reform, shifts in federal funding priorities, and the concerted energy of thought leaders in a number of states. The Essay shines a light on this trend through close examination of three states — North Carolina, Texas, and New York — in which indigent defense oversight commissions have placed the development of evidence-based practice at the front and center of their missions. Critically assessing the prospects for evidence-based indigent defense policymaking, the Essay shares in some of the enthusiasm evinced by evidence-based practice’s promoters, but also enumerates significant barriers to a full flowering of the paradigm, and cautions that an expanded evidence base might, ironically, pose barriers to furthering Gideon’s promise of equal access to counsel for the indigent.