Violent Videos: Criminal Defense in a Digital Age

Digital video evidence has exploded into criminal practice with far-reaching consequences for criminal defendants, their attorneys, and the criminal legal system as a whole. Defense attorneys now receive police body-worn camera footage, surveillance video footage, and cell phone video footage in discovery in even the most routine criminal cases. This Article explores the impact on defense attorneys of reviewing this avalanche of digital evidence. The author posits that the outsized role of digital evidence in criminal cases is taking a toll on defense attorneys in general—and public defenders in particular—resulting in increased burnout and secondary trauma. This Article includes results from a recent survey by the author that indicate that public defenders are increasingly exposed to disturbing digital content—videos capturing violence by clients, police, and others. The survey further suggests that these images are impactful, increasing the emotional workload of defense attorneys and exacerbating burnout. Videos with violent or emotional content can also strain the attorney–client relationship by collapsing the distance between attorney, client, and crime. Implicit racial bias can also color what we see when viewing violent videos. These trends raise new concerns about defense attorneys’ abilities to advocate zealously for their clients and meet constitutional standards, particularly for public defenders whose caseloads require more frequent interaction with digital video evidence and whose day-to-day practices have been reshaped dramatically by its presence. Finally, this Article suggests strategies to address the added toll of digital content on defense attorneys to ensure that defendants receive effective representation in the digital age

Coordinating Community Reintegration Services for “Deportable Alien” Defendants: A Moral and Financial Imperative

Recidivism rates for individuals who are convicted of illegal entry and re-entry (U.S.C. §§ 1325 and 1326) are quite high despite post-sentencing deportations. The “holistic defense” model developed in New York City at the Neighborhood Defender Services and Bronx Defenders has been instrumental in achieving better outcomes for criminal defendants and their communities, in large part due to an emphasis on re-entry or reintegration services for defendants being released from incarceration. However, that model is difficult to implement when applied to noncitizen defendants who are to be deported. This Article argues that some attention to re-entry services for deportable non-citizen defendants improves outcomes for the individual defendants and the communities they are prosecuted in. Deportable non-citizen inmates housed in United States Bureau of Prison facilities are provided fewer educational opportunities and minimal access to drug treatment. They are ineligible for placement in residential re-entry centers. Often, non-citizens have grown up in the United States and have limited connections to their “home countries.” The majority are deported to homelessness in Mexican cities along the United States border. Some defendants are not fluent in Spanish and many defendants lack legal Mexican identification—making it nearly impossible to find work in the communities to which they have been deported. This problem will only grow if deportation rates continue to rise. This Article suggests policy changes and data collection strategies to ameliorate the difficulties that non-citizen defendants face upon postsentencing deportation, with an eye towards improving recidivism rates and keeping communities safer

Violent Videos: Criminal Defense in a Digital Age

Digital video evidence has exploded into criminal practice with far-reaching consequences for criminal defendants, their attorneys, and the criminal legal system as a whole. Defense attorneys now receive police body-worn camera footage, surveillance video footage, and cell phone video footage in discovery in even the most routine criminal cases. This Article explores the impact on defense attorneys of reviewing this avalanche of digital evidence. The author posits that the outsized role of digital evidence in criminal cases is taking a toll on defense attorneys in general—and public defenders in particular—resulting in increased burnout and secondary trauma. This Article includes results from a recent survey by the author that indicate that public defenders are increasingly exposed to disturbing digital content—videos capturing violence by clients, police, and others. The survey further suggests that these images are impactful, increasing the emotional workload of defense attorneys and exacerbating burnout. Videos with violent or emotional content can also strain the attorney–client relationship by collapsing the distance between attorney, client, and crime. Implicit racial bias can also color what we see when viewing violent videos. These trends raise new concerns about defense attorneys’ abilities to advocate zealously for their clients and meet constitutional standards, particularly for public defenders whose caseloads require more frequent interaction with digital video evidence and whose day-to-day practices have been reshaped dramatically by its presence. Finally, this Article suggests strategies to address the added toll of digital content on defense attorneys to ensure that defendants receive effective representation in the digital age

Paying For a Clean Record

Prosecutors and courts often charge a premium for the ability to avoid or erase a criminal conviction. Defendants with means, who tend to be predominantly White, can often pay for a clean record. But the indigent who are unable to pay, and are disproportionately Black and Brown, are saddled with the stigma of a criminal record. Diversion and expungement are two popular reforms that were promulgated as ways to reduce the scale of the criminal legal system and mitigate the impact of mass criminalization. Diversion allows a defendant to earn dismissal of a charge by satisfying conditions set by the prosecutor or court, thereby avoiding conviction. Expungement seals or erases the defendant’s record of arrest or conviction. Some diversion and expungement programs are cost-free, but most are not. Yet a criminal record carries its own costs. A criminal record can limit where an individual can live, go to school, and whether they receive public benefits. As 93% of employers conduct background checks on job applicants, the inability to avoid a criminal record can create barriers to employment and the accumulation of wealth. Costly diversion and expungement programs further calcify race and class divides, contributing to the construction of a permanent underclass. This Article examines the promises and pitfalls of diversion and expungement as means to combat mass criminalization. These two mechanisms work in tandem to provide access to a “clean record,” but not enough attention has been paid to the dangers they present due to differential access to clean records based on financial means. This Article considers legal challenges to the current schemes and explains how requiring defendants to pay for a clean record enables courts and prosecutors to profit from the perpetuation of racial caste. Ultimately, this Article argues that the impacts of diversion and expungement programs are more modest than reformers claim, and that these programs need to be offered at no cost if they are to succeed in achieving the goal of reducing racial disparities in our criminal courts and in society at large

Coordinating Community Reintegration Services for “Deportable Alien” Defendants: A Moral and Financial Imperative

Recidivism rates for individuals who are convicted of illegal entry and re-entry (U.S.C. §§ 1325 and 1326) are quite high despite post-sentencing deportations. The “holistic defense” model developed in New York City at the Neighborhood Defender Services and Bronx Defenders has been instrumental in achieving better outcomes for criminal defendants and their communities, in large part due to an emphasis on re-entry or reintegration services for defendants being released from incarceration. However, that model is difficult to implement when applied to noncitizen defendants who are to be deported. This Article argues that some attention to re-entry services for deportable non-citizen defendants improves outcomes for the individual defendants and the communities they are prosecuted in. Deportable non-citizen inmates housed in United States Bureau of Prison facilities are provided fewer educational opportunities and minimal access to drug treatment. They are ineligible for placement in residential re-entry centers. Often, non-citizens have grown up in the United States and have limited connections to their “home countries.” The majority are deported to homelessness in Mexican cities along the United States border. Some defendants are not fluent in Spanish and many defendants lack legal Mexican identification—making it nearly impossible to find work in the communities to which they have been deported. This problem will only grow if deportation rates continue to rise. This Article suggests policy changes and data collection strategies to ameliorate the difficulties that non-citizen defendants face upon postsentencing deportation, with an eye towards improving recidivism rates and keeping communities safer

Paying For a Clean Record

Prosecutors and courts often charge a premium for the ability to avoid or erase a criminal conviction. Defendants with means, who tend to be predominantly White, can often pay for a clean record. But the indigent who are unable to pay, and are disproportionately Black and Brown, are saddled with the stigma of a criminal record. Diversion and expungement are two popular reforms that were promulgated as ways to reduce the scale of the criminal legal system and mitigate the impact of mass criminalization. Diversion allows a defendant to earn dismissal of a charge by satisfying conditions set by the prosecutor or court, thereby avoiding conviction. Expungement seals or erases the defendant’s record of arrest or conviction. Some diversion and expungement programs are cost-free, but most are not. Yet a criminal record carries its own costs. A criminal record can limit where an individual can live, go to school, and whether they receive public benefits. As 93% of employers conduct background checks on job applicants, the inability to avoid a criminal record can create barriers to employment and the accumulation of wealth. Costly diversion and expungement programs further calcify race and class divides, contributing to the construction of a permanent underclass. This Article examines the promises and pitfalls of diversion and expungement as means to combat mass criminalization. These two mechanisms work in tandem to provide access to a “clean record,” but not enough attention has been paid to the dangers they present due to differential access to clean records based on financial means. This Article considers legal challenges to the current schemes and explains how requiring defendants to pay for a clean record enables courts and prosecutors to profit from the perpetuation of racial caste. Ultimately, this Article argues that the impacts of diversion and expungement programs are more modest than reformers claim, and that these programs need to be offered at no cost if they are to succeed in achieving the goal of reducing racial disparities in our criminal courts and in society at large

Supplemental Material - Life-Stage and Contextual Factors of Advance Care Planning Among Older Adults With Limited Income

Supplemental Material for Life-Stage and Contextual Factors of Advance Care Planning Among Older Adults With Limited Income by Christine C. Kimpel, Jana Lauderdale, David G. Schlundt, Mary S. Dietrich, Amy C. Ratcliff, and Cathy A. Maxwell in Journal of Applied Gerontology</p

Supplemental Material - Life-Stage and Contextual Factors of Advance Care Planning Among Older Adults With Limited Income

Supplemental Material for Life-Stage and Contextual Factors of Advance Care Planning Among Older Adults With Limited Income by Christine C. Kimpel, Jana Lauderdale, David G. Schlundt, Mary S. Dietrich, Amy C. Ratcliff, and Cathy A. Maxwell in Journal of Applied Gerontology</p