Public Defender Research Articles

Parliament and the Protection of Human Rights: The Case of the ‘Public Defender of Rights’ in Slovakia

This article explores the role of the ‘Public Defender of Rights’ (verejný ochranca práv—VOP) within the Slovak political system and its relationship with the Parliament. It comprehensively examines the complex interactions between these two institutions, shedding light on the limitations of the VOP in a country where the Parliament plays a pivotal role in the political system. These dynamics have profound implications for the protection of human rights. The analysis presented in this article is grounded in various sources, including laws, transcripts from parliamentary debates, government documents, reports from the VOP, media coverage, interviews, as well as decisions from the Constitutional Court.

형사소송법상 ‘피고인이 구속된 때’에 있어서 구속 개념의 해석 및 입법론 - 대법원 2024. 5. 23. 선고 2021도6357 전원합의체 판결

Korean Criminal Procedure Act establishes “when the defendant is in custody” as one of the grounds for appointing a public defender. (Article 33, Paragraph 1(1)) The Supreme Court has traditionally viewed this as a case in which the defendant is detained and on trial in the criminal case in question. It may be reasonably concluded, therefore, that being detained in a separate case or being convicted and sentenced in another criminal case does not qualify as a reason for the appointment. However, in May 2024, the Supreme Court reconsidered its position to include cases where a warrant of arrest has been issued and executed in a separate case or where the defendant has been convicted in another criminal case and is in custody as a result of the execution of the judgment. This artice reviews the decision to reconstruct the contents of its majority opinion, separate opinion, and supplementary opinion by interpreting the legal textual meaning of the concept of restraint, interpreting the purposive meaning, and policy interpretation issues. It will then evaluate them together with related laws and theories, with a view to seeking a legislative solution to the interpretation controversy. While the existing precedents did not present the interpretation arguments in detail, the individual opinions of the judgments indicate that the arguments were based on the stable utilization of the current system and practice on public defenders and the right to counsel, as well as the efficient allocation of judicial resources. There is a difference of opinion as to whether the expansion of the right to counsel and the necessary expansion of the public defender system should be achieved by changing case law or by amending the law. Thus, the author propose the amendment of paragraph 1(1) of the Article 33, “When the criminal defendant is placed under detention”to “When the criminal defendant is placed under custody”.

Desjudicialização da saúde e diálogos interinstitucionais em Minas Gerais: a análise do Acordo de Cooperação Técnica para a gestão dos medicamentos Ranibizumabe e Aflibercept

Objective: to understand the judicialization of health in Brazil and analyze, from the perspective of health de-judicialization, the Technical Cooperation Agreement signed on December 2, 2021, between the State Health Departmentof Minas Gerais , the State Attorney General's Office of Minas Gerais, and the State Public Defender's Office of Minas Gerais for the management of the medications Ranibizumab and Aflibercept. Method: a narrative review of the literature on the judicialization of health and an exploratory study based on documentary analysis of the antecedents of the Technical Cooperation Agreement were carried out. Results and discussions: Self-composition and consensual resolution of conflicts by the Public Administration has broad legal support and, in the current legal and administrative scenario, is the most effective and efficient means of realizing the underlying public interest, notably the right to health, promoting its dejudicialization. This scenario points to the potential for new solutions, including the implementation of interinstitutional dialogues, such as the Technical Cooperation Agreement studied, which is expected to serve as the embryo for a permanent trend in the management of the judicialization of health within the scope of State Health Departmentof Minas Gerais. Final considerations: ahe cooperation agreement studied has great potential for the dejudicialization of actions with requests for ophthalmological medicines, in addition to others whose incorporations are proposed within it. It also promotes synergistic and convergent action by actors involved in judicialization. The perspective is that, from this milestone, these legal actions will decrease and patients will begin to be served through the United Health System administrative supply route. Submission: 03/19/24| Review: 08/16/24| Approval: 09/01/24

Police Public Image through the Lens of Community Stakeholders

Police community relation is meant to combat citizen mistrust of the police force. This strategy was developed in the mid-20th century to help officers ​​work more collaboratively with the communities they are assigned to. The hope was that activities such as town hall meetings and “meet and greet” foot patrols would create a partnership between citizens and the police force, increasing trust and ultimately leading to reduced crime. This study explored the views of community stakeholders on the police public image in the province of Southern Leyte through a qualitative research method. The informants of this study were ten individuals from different sectors of society within the province of Southern Leyte. All informants were subjected to an individual in-depth interview. The findings of this study are described in emergent themes. Six (6) emergent themes described the positive and negative views of the informants regarding their current views on the public image. For the positive views, three (3) emergent themes were developed, namely Community Engagement and Cooperation, Trust in Police and Public Safety, and Commitment to Duty and Profession. For the negative views, three (3) emergent themes were also developed: Use of Excessive Force and Violence, Negative Stereotypes and Public Distrust, and Malfeasance and Inconsistent Law Enforcement. Meanwhile, two (2) emergent themes were formulated to explain how the impact of the police public image affects the community stakeholders, namely, Police as Protector and Police as Public Defender. Finally, four (4) emergent themes were formulated to explain how police activities promote community confidence and trust, namely Enhanced Police Visibility, Community Outreach Program, First Responders in Calamities, and Proactive Information Campaigns. Based on the emergent themes identified, it is recommended that the Philippine National Police (PNP) enhance the efficacy of law enforcement officers by developing stronger relationships with the public and addressing the issues pointed out in the study to restore public confidence. Essential measures may include improving community engagement through transparent communication and enhancing officer training in ethics and accountability.

LASPO 2012: ten years and beyond – a socio-legal study of the impact of legal aid cuts on service providers in England and Wales

ABSTRACT Major reforms via the Legal Aid, Sentencing and Punishment of Offenders (LASPO) Act 2012 and subsequent reforms have reduced the legal aid budget and the scope of eligibility in criminal as well as civil cases. According to Mansfield et al., the principles of justice that embody the legal aid provision has been neglected by governments for over a decade and as such; created a gap that emasculates the most vulnerable in society, such as recipients of legal aid. This study employs an interview-based approach to investigate alternative perspectives in terms of the cuts and widespread impact on service providers in England and Wales, such as barristers, and solicitors. Detailed qualitative data were collected to provide insights into the diminishing legal aid scheme through the lived experiences of both civil and criminal legal aid providers. The study examines the concerns of service providers regarding their future as public defenders and the future of the judicial system post-LASPO 2012, focusing on safeguarding the rights of individuals facing litigation and ensuring that newly qualified lawyers are not deterred from public defence roles due to the long-term effects of ongoing legal aid cuts.

Public Defenders of Human Rights, Freedom of Expression and Public Officials. Case of Baraona Bray v. Chile, Judgment Of November 24, 2022, Series C No. 481

Public Defenders of Human Rights, Freedom of Expression and Public Officials. Case of Baraona Bray v. Chile, Judgment Of November 24, 2022, Series C No. 481

A comparison of first-time offenders, repeat offenders, and frequent utilizers of the criminal justice system

Frequent utilizers of the criminal justice system heavily strain local resources due to their ongoing interactions with criminal justice agencies and their disproportionate need for social and behavioral health services. We first identify and compare frequent utilizers ‘demographic and legal characteristics to first-time and repeat offenders by analyzing two years of prosecution data from three counties in a large Florida jurisdiction. Ordinal regression is then employed to evaluate the impact of first-time offenders, repeat offenders, and frequent utilizers on filed charge severity and the harshness of punitive sanction. Results reveal that frequent utilizers are more likely to be involved in property and drug offenses than personal offenses. They also have an enhanced proclivity to be represented by public defenders or assigned counsel, be held pretrial, and receive custodial sentences. However, contrary to previous research, our findings show that frequent utilizers exhibit a more serious pattern of offending than first-time or repeat offenders. These findings suggest the need for rigorous state monitoring of frequent utilizers in the community while still underscoring the importance and effectiveness of various rehabilitative and prevention strategies beyond the criminal justice system's purview to address the complexities of frequent utilizers’ needs.

아동보호 목적에 부합하는 아동학대 초기대응 및 피해자지원에 대한 소고

An effective response to child abuse is a coordinated response by all agencies involved in preventing abuse and supporting children. Our legal system is very similar to that of the United Kingdom, which responded to child abuse early on by enacting the Children Act. It is very important to make child protection a nationwide goal and set a specific action plan for it, and to create a system that overhauls the relevant legal system and makes the many organizations involved in child abuse work together organically. The interviews with child abuse officials also highlighted a number of shortcomings in cooperation with other organizations, especially the police, which are involved in handling child abuse cases. The reasons for this include the lack of a complete legal system for information sharing and the lack of a higher authority to mediate conflicts. It is necessary to revise the law to substantially improve cooperation between organizations in the child abuse legal system. In addition, the victim's public defender system is being introduced to provide practical support to victims of child abuse, but it was found that there are limitations in the legal system for victim's public defenders to obtain information on child abuse. In this regard, it can be said that a prerequisite for receiving practical help for the healthy growth and protection of children is to obtain detailed information about the child and the environment in which the child is placed, so the law should be amended to give them practical authority in this regard.

Brazilian Public Defender's office and the barriers of the second wave of the access to justice: testing correlations between the annual federal budget and the free assistance from 2014-2023.

A variação no valor do orçamento anual aprovado para a Defensoria Pública no Brasil influencia na variação do número de pessoas atendidas por esse órgão? A partir da Pesquisa Nacional da Defensoria Pública (PNDP), a literatura argumenta que, para garantir o acesso igualitário à Justiça, a Defensoria Pública depende do repasse de recursos orçamentários suficientes para o adequado desempenho de suas funções constitucionais. Este artigo analisa, por meio de pesquisa empírica-quantitativa descritiva, o acesso à justiça por meio da Defensoria Pública da União entre os anos de 2014-2023. Conclui-se que os orçamentos das unidades da Defensoria Pública brasileira são profundamente desproporcionais e não guardam o mínimo de igualdade com outras instituições com as quais possui paridade constitucional.

Book Review: Everyone against Us: Public Defenders and the Making of American Justice

Everyone against Us is a memoir of a lawyer’s nine year career in the Cook County, Illinois Public Defender’s Office. Readers ought not expect a “wonkish” book, detailing how to improve upon the dysfunction in the American criminal justice system. Rather, it is very personal, with large portions of the book being about the author’s experiences (that can often seem only tangentially related to legal defense). However, this helps the reader delve deeper into the mindset of one called to serve as the sole legal representation of the indigent in one of the largest (and most crime-prone) jurisdictions in the U.S., and it makes for a very readable book.

Access to the administration of justice and public defender in post-conflict

Introducción: Se efectuó un análisis de la garantía al acceso a la administración de justicia a través del Sistema Nacional de Defensoría Pública en el contexto de Construcción de Paz. Metodología: Se empleo un tipo de investigación de corte cualitativo, apelando a un paradigma empírico - analítico y aplicando un enfoque descriptivo. Resultados: Se tiene que a nivel nacional existen (136) defensores públicos adscritos al programa de Representación Judicial de Víctimas en Ley 975 de 2005 y (633) en el grupo Representación Judicial de Víctimas, para un total de (769). Además, se hallaron (327.513) poderes ingresado en el 2019 relacionados con: Restitución de tierras (49.278), Víctimas en el Sistema Acusatorio: (6.018) y Justicia y Paz: (272.217), además (8.285) poderes registrados de enero a junio de 2020, para un total de (335.798) no contando los ya asumidos. Se identificaron conductas violatorias, ligadas a incumplimientos en negación de atención humanitaria integral (506); así como retraso en términos para resolver oportunamente trámites de víctimas del desplazamiento forzado (416). Conclusión: Se esta frente a la falta de herramientas que garanticen el Acceso a la Administración de Justicia en tiempos de paz, frente a las imposibilidades y situaciones jurídicas y las demandas de las víctimas.

Judicialización sanitaria y acción de la Defensoría Pública en un caso de insumo no incorporado: la demanda de Cannabidiol en la Defensoría Pública Federal de Salvador/Ba em la última década

Objective: To evaluate the performance of the Federal Public Defender's Office and the effectiveness of the juridification of health, as an instrument to guarantee access to the right, in the case of a non-standardized input (Cannabidiol), in the Salvador/Bahia unit. Methodology: a descriptive study with application of retrospective longitudinal method was carried out on the number of Cannabidiol claims that have reached the unit since the index case admitted in Brazil in 2014, its annual evolution and destination in the institution and in the court, until 2023. Results and discussion: there was a systematic growth in the number of cases, which doubled annually, especially from 2018 onwards, except in 2021. The percentage of judicialized lawsuits was about 59%, and, among those, more than half obtained a favorable decision in some instance, reaching 76% from the merit sentences. The time between the arrival of the applicant, the gathering of documents and the filing of the action was, on average, 2.4 months, and the average interval between the filing of the initial petition and the intimation of the anticipation decision, in the cases where it was granted, was 2 months. On the other hand, the interval between the intimation of the anticipatory decision and the effective compliance oscillated around 9.2 months, only being obtained through judicial blocking in almost 70% of the cases. Conclusion: it was found that the defense was swift, as soon as the necessary documents were gathered, as well as the injunctions granted. On the other hand, the time of compliance after the concession decision showed an alarmingly long interval, resulting in a new form of ineffectiveness of the social right to health, which the judicialization aimed precisely to combat. Submission: 11/30/23| Review: 01/29/24| Approval: 01/30/24

Right to counsel? A mixed‐methods evaluation of the St. Louis County initial appearance program

AbstractResearch summaryLegal representation is a critical right in the criminal legal process, yet it is unclear when representation is guaranteed. Further, many individuals find obtaining legal representation difficult and expensive. The current study is an evaluation of an initial appearance program implemented in St. Louis County, Missouri. This mixed‐methods study focuses on understanding if and how providing counsel at initial appearance affects the bond amount, release type, and length of pretrial detention. Data from official court records and interviews with project staff and stakeholders suggest that early, free representation at arraignment can facilitate release on recognizance and lowered bail amounts. Results from a series of interaction models suggest that this type of programming may be able to help reduce some racial disparities. Our thematic analysis indicates that courtroom stakeholders see value in the program for the defendants, the criminal process, and the courtroom workgroup dynamics during pretrial stages.Policy implicationsThe results reflect the need for early representation in the legal process. Representation can potentially reduce some of the racial and ethnic disparities in case processing, which are relatively stark and can lead to downstream effects like a greater likelihood of recidivism and conviction. Currently, most funding for public defenders is inequitable to that of the prosecutor's office, and this work speaks to the necessity of providing representation that begins with the initial appearance and continues throughout the life of the case. This work also highlights how outside funding can be used to support more equitable and fair case processing in the criminal legal system.

Custos vulnerabilis, fundamental rights and culture: reflections in light of Marc galanter´s critical ideas

This article attempts to investigate the public defender office’s intervention in Brazilian’s civil litigation as custos vulnerabilis. It will analyze whether this legal construction effectively has a redistributive impact on law and changes the status quo or would it be a symbolic commitment. It uses the argumentative dialectical approach method; the structuralism procedure method and the sociological interpretation method. As a research hypothesis, it considers that public defender office’s intervention as a “vulnerable’s guardian” is legitimated by the protection of vulnerable group’s fundamental rights. The objectives of this essay are: i) to analyze the public defender’s intervention as custos vulnerabilis; ii) to examine the civil litigation neutrality discourse and the limitations to law’s transformation by Marc Galanter; iii) associating law and culture, to investigate whether the referred intervention modality has the aptitude to promote social change, analyzing its theoretical basis of legitimation. The conclusions show that: i) the public defender office’s intervention as custos vulnerabilis is interpreted from art. 134 of Brazilian’s Constitution, to promote fundamental human rights; ii) the recognition of this interventional modality by jurisprudence reveals the Brazilian society’s cultural transformation and of process itself; iii) this interventional modality’s consolidation may contribute to a paradigm shift in Brazilian civil process, making it more inclusive and fairer.

The Stress of Injustice: Public Defenders and the Frontline of American Inequality

Abstract Fairness in the criminal legal system is unattainable without effective legal representation of indigent defendants, yet we know little about the experience of attorneys who do this critical work. Using semi-structured interviews, our study investigated occupational stress in a sample of 78 attorneys representing indigent clients across the United States. We show how the chronic stressors experienced at work culminate in what we define as the stress of injustice: the social and psychological demands of working in a punitive system with laws and practices that target and punish those who are the most disadvantaged. Respondents positioned their professional stress around structural, not individual, aspects of the American criminal legal system, specifically punitive excess, underfunding of indigent defense, and the criminalization of mental illness and substance use. Working within these interrelated structural constraints makes public defenders highly vulnerable to stress and attrition.

The Environmental Defense Fund: Fighting the System by Guarding the Lifeworld as a Defensively Funded Environment

The Environmental Defense Fund (EDF) prides itself on its mission and legacy, namely, “50 years of forging solutions that help people and nature prosper.” Has this solutionist approach to struggles along the frontiers of what Habermas identified as “system” to defend “life-world” actually helped people and nature prosper? The EDF has secured a relatively small number of protected stop-gap sites around the planet, which it oversees as specially “funded defensible environments.” Yet, these interventions typically assist only certain peoples and specific locations. While it presents itself as an anti-establishment or market-resistant operation, the EDF also usually depicts its “funded defensible environments” through the frames of a complex victimology in which “the system” assaults “the life-world.” It then can step forth as a third-sector “public defender,” forging solutions through defensive legal actions meant to assure fairness and justice in environmental management through legalistic and/or market-based strategies. This analysis critically reassesses how the EDF’s practices assure human, and increasingly nonhuman, beings are accorded legal service to share in the future appreciation of Nature’s stocks, services, or systems as well as a right to redress losses to these interests with legal remedies for any despoliation or destruction of shared environmental equity in the solutions it forges.

Política Nacional de Resíduos Sólidos: Analisando os Direitos Coletivos e Difusos dos Catadores de Materiais

Abstract This article scrutinizes the National Policy on Solid Waste (PNRS) - Law 12.305/2010 regarding the collective and diffuse rights of collectors of recyclable materials. More than a decade since the enactment of the PNRS, the rights bestowed by this legislation have yet to be actualized. In its analysis, the article highlights public-interest civil actions pertaining to the cities of São Paulo (SP), Rio de Janeiro (RJ), and Brasília (DF). The hypothetical-deductive method was employed within a qualitative framework, utilizing both bibliographic and documentary research tools. It is concluded that, due to governmental neglect, there is an imperative for the ongoing involvement of the Public Prosecutor’s Office and the Public Defender’s Office to advocate for and safeguard the rights of this worker category, which are pivotal in the advancement of a sustainable environment.

Comments of Charles Weisselberg, Federal Public and Community Defenders, and the CAN-DO Foundation on the Social Media Provisions of the Proposed Rule on Inmate Discipline Program, Docket BOP-2024-0001 (Submitted to the Office of General Counsel, Bureau of Prisons, via regulations.gov)

Comments of Charles Weisselberg, Federal Public and Community Defenders, and the CAN-DO Foundation on the Social Media Provisions of the Proposed Rule on Inmate Discipline Program, Docket BOP-2024-0001 (Submitted to the Office of General Counsel, Bureau of Prisons, via regulations.gov)

범죄피해자 국선변호인 제도 활성화 방안에 관한 연구

Criminal justice procedures have historically been centered on punishment for crimes, and proof and defense of crimes have been key. The ideology of the Criminal Procedure Act, which is the principle of discovery of substantive truth, proper procedure, and prompt trial, was also established in this dimension. However, as the interest in criminal law expanded to the area of recovering criminal damage, many academic theories and legislation for this came to fruition. The need for social support for crime victims is also gaining a lot of support from the international community. The UN adopted the SDGs and suggested equal access to justice as one of the international community's efforts, and recently, “The Kyoto Congress” emphasized the need for compensation and compensation beyond the victim's participation in criminal justice procedures. Legal assistance and assistance from lawyers are essential to enable crime victims to recover to their daily lives. Currently, Korea guarantees this right to victims of crime under a special law. However, the reality is that support for crime victims is insufficient because the types of crimes that can be assisted by lawyers are limited. Therefore, there is a need to expand the scope of crime victims to use the public defender system. Currently, the system stipulated only in the special law should be stipulated in the Criminal Procedure Act, a general corporation, and there should also be legislation for the elderly who are socially vulnerable. In addition, from the beginning of the criminal damage, the effectiveness of the recovery of the damage should be secured with the assistance of a lawyer. In addition, it is necessary to clearly define the role of public defenders who have suffered criminal damage and prepare a plan that enables legal support from the investigation stage to the process of receiving damages. In order to guarantee the defendant's right to defend, the Korean Criminal Procedure Act recognizes various rights and operates a system. If so, it is appropriate to provide the same level of support to victims who have been victimized by the accused. Anyone can unintentionally become a victim of a crime, and the cause of the crime is also in the social environment. If so, the state is obligated to establish a social system so that the daily life, which has been painful due to criminal damage, can be restored to the time before the damage situation. In addition, the prerequisite of such a system is to be able to receive assistance from public defenders.

A Study on the Legal Aid Services-Provisions and the Defence Legal Aid Scheme

India is regarded amongst the top countries in the Asian continent in terms of the recent technological, economic developments. The country with the most population is still striving to get rid of illiteracy which is now a major problem faced by the rural population in the country. Legal Aid Defense Counsel Scheme 2022 FOR PROVIDING LEGAL AID, ASSISTANCE & REPRESENTATION IN CRIMINAL MATTERS IN LINE WITH "PUBLIC DEFENDER SYSTEM" aims to provide legal aid to poor and needy in criminal justice system. The scheme aims at providing legal aid, assistance & representation in criminal matters in LINE with a public defender system. At present, Assigned Counsel System of dispensation of Legal Aid is being followed in India. This will create institutional capacity to effectively provide Legal Aid to poor, needy, and poor in the criminal justice systems. To have a successful legal aid movement in India, the government needs to take appropriate steps by spreading awareness and educating the people about their basic fundamental rights.