Public Defense PaPublicpers from the Executive Defense Session on Public Defense

Bolder he boldest managers of public First, inside their offices, they can offer T defense organizations are get- a special clarity of vision. Second, with ting out from behind their desks and their colleagues in other criminal justice Management expanding their work environments. agencies, they can build consensus for Whether they run a public defender positive reforms within the whole sys- for Public office or oversee a panel of private attor- tem. Third, in public debate, they can neys, these leaders are already working advance a vision of crime prevention Defense: full time managing budgets, recruiting that rises above ideology. and deploying lawyers, organizing train- Leadership ing, and keeping the courts moving Public defense is not the most popular every day. Nevertheless, these managers work in the legal profession. Managers in Three have made time to branch out beyond in the field are often asked by friends their basic administrative duties. They and relatives about their assiduous devo- Dimensions have expanded the scope of their man- tion to the cause of defending poor peo- agement because they realize they can ple accused of crimes that range from by Cait Clarke and make a difference on a different plane. smoking marijuana to murder. If more Christopher Stone Understanding the potential of embrac- managers practiced leadership in these ing a bolder form of leadership, these three dimensions, the work itself could defense leaders have moved into new gain appeal, because its connections dimensions of public defense. with powerful values that are widely shared in society would be clearer to all. For the past 2 years, as members of the Executive Session on Public Defense at No one leader has completely succeeded Harvard University’s John F. Kennedy in this endeavor, but together the efforts School of Government, managers have of these managers provide a coherent been telling their stories and distilling picture of leadership in these three lessons from their experiences as dimensions. This paper, illustrated with defense lawyers, supervisors, and lead- examples from around the country, is a ers in the field. These stories and experi- guide to how others might adopt a simi- ences suggest three dimensions in which lar, bold vision of management in public managers of public defense services can defense. lead their organizations and their field.

This is one in a series of papers developed with some of the leading figures in public defense during their periodic meetings at Harvard University’s John F. Kennedy School of Government. These 30 members of the Executive Session on Public Defense (ESPD) included state public defender leaders, assigned counsel managers, a prosecutor, a legislator, a social worker, a journalist, and criminal justice experts. In their dis- cussions and resulting papers, they tried to rethink the field of public defense—challenging conventional wisdom and exploring new ways to serve clients and society. ESPD was a partnership effort of Harvard University’s Program in Criminal Justice Policy and Manage- ment, the Harvard Law School, the Vera Institute of Justice, The Spangenberg Group, and the Bureau of Justice Assistance.

Points of view or opinions in this document are those of the authors and do not represent the official position or policies of the U.S. Department of Justice.

November 2001 | Bulletin #1 Leadership Inside the Office managed system of assigned counsel encounter safely. Educational work is needs to know exactly what they do and included in the office’s mission state- In this first dimension of leadership, why they do it. ment and given equal weight with legal traditional managers divide their time representation in individual cases. between organizational administration The definition of what each defender Leonard Noisette, director of this inno- and individual supervision. The organiza- office and panel does comes from its vative Harlem public defender office, tional tasks—from budgeting to manag- state enabling statutes or contracts, makes sure that staff members know ing personnel and equipment—have a from the state and federal constitutions, that the educational work is of principal mundane, generic character. The tasks from its state case law, and from direc- importance; he also makes sure they that relate to the specific mission of the tives it receives from its governing enti- understand that it is financed with spe- organization—supervising effective rep- ty. The leader must interpret all of these cial public and private funds. resentation and shaping strategy in a and provide the staff and contract pro- high-profile case—tend to focus on indi- fessionals with a clear statement that Attorneys on a panel might be able to vidual attorneys and cases. draws on all these sources. represent clients in a wider range of cases than can salaried public defenders. By contrast, the new, bolder leadership For example, most public defender orga- For example, under New York State’s integrates the internal role of the man- nizations provide legal representation in death penalty law, panel attorneys can ager with the organization’s highest a hodgepodge of different proceedings, continue to represent clients after prose- aspirations. Inside the office, this kind mostly criminal cases but also juvenile cutors withdraw notice that they are of leadership aims to delinquency and some mental health seeking a death sentence; but the spe- matters. Some organizations also ■ cial public defender must withdraw at Focus everyone on organizational exclude certain cases. To give coherence goals. that point. New York State Capital to such organizations, leaders craft Defender Kevin Doyle, who oversees ■ Articulate standards. statements about the commitment to the training of capital panels attorneys, quality of legal services or closing the stresses this statutory provision during ■ Align all activities within the office. gap between the services available to initial training. Doyle makes certain rich and poor. that the panel attorneys understand ■ Realize internal efficiencies. their unique role in providing continuity Some offices also include an educational of representation for literally hundreds First, the defense leader can focus the mission or a preventive mission. Every- of capital defendants who will eventually organization on what its job is. It is not one in the organization needs to under- face a maximum sentence of life without sufficient to depend on common public stand where the mission came from and parole. understanding of the job of a defense why it is part of their work. At the lawyer or public defense office. People Neighborhood Defender Service of Articulating just what the job of public choose this work for widely different Harlem (NDS) every attorney, investiga- defense is—consistently, clearly, and reasons and this diversity is often a tor, and social worker participates in broadly across the entire organization, source of strength in an office. However, community educational programs de- and tying it back to the organization’s without a common definition of the work signed to help young people avoid arrest enabling documents—is the first step at hand, attorneys and others can wan- or injury during encounters with the toward an expanded leadership role for der far afield, get in trouble, and then police. A 10-session course, “Coping public defense service providers. expect to be rescued. Everyone work- with Cops,” trains African-American ing in a public defender office or in a teens to make it through a police Next, the leader can articulate stan- dards. Only if the staff and contract pro- The Executive Session on Public Defense (ESPD), like fessionals understand the standards other Executive Sessions at Harvard’s Kennedy School of they are expected to meet can they orga- Government, was designed to encourage a new form of nize their work accordingly. What, in dialogue between high-level practitioners and scholars, each particular office, does it mean to with a view to redefining and proposing solutions for sub- stantive policy issues. Practitioners rather than academi- provide effective representation? Does cians were given majority representation in the group. it mean that an attorney meets the client Meetings were conducted as loosely structured seminars within 24 hours of appointment in all or policy debates. Between 1999 and 2001, ESPD met 5 cases, or only when the client is incar- times. During the 3-day meetings, the 30 members dis- cussed the facts and values that have guided, and those cerated? Such standards not only help that should guide, public defense. guide the practice of new and veteran lawyers, but also help the office obtain 2| Bolder Management for Public Defense the resources it needs to provide high- collaboratively with all the attorneys and particular plan when it is about to be quality representation. other staff of the organization, whether implemented. In exchange, defense lead- or not they are organized in unions or ers can secure modifications to new ini- Next, the defense manager can align the associations. Daniel Greenberg, Presi- tiatives or request support for their own activities of the office. Once it is clear dent of the Legal Aid Society in New initiatives. This kind of policy bargain- what the office does and what standards York City, stresses the importance of ing, familiar throughout government it is trying to meet, the rest of the oper- “leading by listening” and aligning the administration, is new territory for some ation should be aligned with those ambi- organization around principles derived defense leaders, but it can allow the gov- tions. For example, it was one thing for from open dialogue with staff. He ernment to save money and the system the leaders of NDS to voice a commit- explains: to avoid waste and needless controversy. ment to conducting educational and pre- ventive work in the Harlem community, [Effective] leadership includes listen- For example, Los Angeles County Chief but it was another to align its recruit- ing for, respecting, and implementing Public Defender Michael Judge took a ideas generated throughout the orga- ment efforts with this commitment. leading role in the development of the nization. In coping with a massive cut Some young lawyers who applied for of our budget by the city administra- first local drug court, despite his misgiv- jobs would have made excellent public tion, the process was made easier by ings about some aspects of these courts defenders in a different office but were the cooperation of the unionized staff. in other states. He describes his experi- not interested in the educational and I gathered a working group of man- ence in helping to shape the drug court agement and staff from all levels of preventive work. Aligning the recruit- to include several features that other the organization who were informed ment process with the mission meant that the best decision on restructur- criminal justice stakeholders did not turning these applicants away in favor ing would be one made quickly and consider. of more rounded, if sometimes less collectively. An open process is not In early 1993, as an assistant public courtroom-ready, lawyers. only important in itself, but it pro- duces better decisions.* defender, I traveled to Miami to audit the drug treatment court with a small Defense leaders cannot afford to define contingent of judges and some line their mission around the personal pref- Leadership Across the staff or mid-level managers repre- erences of the people who happen to Criminal Justice System senting various agencies such as the join an office or a panel. Rather, all the sheriff and district attorney. Upon activities of the defense organization Defense leaders face another set of return, we explained the drug court concept to the district attorney and should align with one another once opportunities at the level of the criminal the elected sheriff who joined us in justice system as a whole. Many institu- the work and standards are clearly supporting a pilot drug treatment understood. tional changes are under way, such as court in Los Angeles and to seek the creation of specialized courts, com- funding for the court. After some Finally, the leader can realize internal munity justice initiatives, and collabora- negotiation, all agreed that the pilot efficiencies. Because the managers over- tive efforts to divert certain types of program be pre-plea in nature. A con- see thousands of cases that move cases out of the traditional criminal trial sensus was reached that statements and urinalysis results would be used through an office or a panel, they are process. By giving their approval to new solely to make treatment selection, positioned to see inefficiencies, elimi- initiatives, and by encouraging their phase matriculation, graduation, and nate them, and deploy the savings to staff or contract professionals to cooper- termination decisions. crucial parts of the work. Even some- ate, defense leaders can help reform the The early success led to the estab- thing as fundamental as the location of system. Leaders who do this typically lishment of a countywide Drug Court offices and staff can be made more effi- Oversight Committee to facilitate ■ Engage in policy bargaining. cient by basing investigators in commu- the development of additional drug nities where many potential witnesses treatment courts and to monitor and ■ Give voice to client communities. may be found. For managers who can manage the evolution of practices, procedures, and funding sources. I decide which cases will be handled by ■ Urge diversion of classes of cases out staff lawyers and which by assigned was selected vice chairperson of the of the criminal justice system. committee, which has been responsi- counsel, a careful study of efficiency can ble for the establishment of 12 drug allow the leader to make much better Bold leaders participate in criminal jus- treatment courts in Los Angeles. use of the limited resources available for tice policymaking. Indeed, they encour- Taking a leadership role in the lobby- public defense. age court administrators, police officials, ing effort, I helped secure the first and prosecutors to include them in plan- allocation of state general funds to In all these internal activities, particu- ning discussions as early as possible, support drug courts. Initially, only $4 million was appropriated, which larly the last one, the leader must work lest the defense community oppose any

November 2001 | 3 was limited to post-guilty plea pro- into policy discussions and advance jus- offenders. Recognizing that this char- grams. The next year it increased to tice in the system as a whole with sur- acterization was inappropriate, The $8 million. This year, the sheriff— prisingly little disagreement. Bronx Defenders created an alterna- after observing the positive outcomes tive program designed to address the of the program—convinced the Finally, defense leaders are in a unique issues affecting this particular group Governor to sign an additional appro- of clients. With the cooperation of the position to urge the diversion of whole priation of $10 million that can be Bronx District Attorney’s Office, the used in pre-plea programs and which classes of cases out of the criminal jus- local judiciary, and experts in the can be allocated on a per capita basis tice system when the problems behind field, the Public Civility Seminar was so Los Angeles will receive a fair those cases are within the jurisdiction of created. share. other government agencies. Many of the It was heartening to see the district Consequently, there is now $18 mil- defendants pushed through the criminal attorney’s office and the judges lion in state general funds available justice system are the castoffs from respond so favorably to the Public for drug treatment courts. Further- other government systems. They are pri- Civility Seminar. Once the issue was more, the sheriff reopened and reno- marily homeless, mentally ill, or physi- brought to their attention, and we vated a “moth-balled” jail facility and cally addicted, and only secondarily proposed concrete solutions, they dedicated it as a recovery center. I helped us make the program a reality. criminal offenders. They are in the crimi- am now engaged in preliminary dis- Judges even handed out our flyers in cussions with all the criminal justice nal justice system because other sys- their courtrooms and encouraged players to devise remedial legislation tems have failed to meet institutional lawyers from other defender organiza- to improve the design and, therefore, mandates. Defenders are more likely tions and the private bar to let their improve the outcomes, particularly as than others in the justice system to get clients know about the seminar. Proposition 36 goes into effect. That Sometimes, we get so caught up in to know the personal circumstances of proposition mandates treatment for the day-to-day battle with prosecutors all persons convicted of use or pos- their clients and public defense lawyers and judges on behalf of our individual session for personal use of all drugs. usually are the first to recognize an indi- clients that we forget that they can vidual’s underlying problems as well as also be valuable partners in address- As this narrative suggests, Judge’s the system’s problems in dealing with ing larger criminal justice issues. involvement from the inception of the them. Because some of their clients have It was an important lesson for us. Sometimes our clients can benefit drug court in Los Angeles demonstrates criminal charges as a result of adminis- greatly from a successful collabora- the positive impact a defense lawyer can trative failures by other government tion with unlikely partners. have and the importance of collaboration agencies, defenders may be able to iden- with other criminal justice leaders. This tify patterns in the system that will pro- Steinberg’s example illustrates that bold experience also helps him build support vide clues to how the government could management in public defense often for other criminal justice issues that he handle these matters more effectively requires stepping back to reassess a may introduce to other authorities in the and at a reduced cost. These are issues problem from a different angle, seeking system. on which all parts of the criminal justice input from lawyers and others in the system will quickly agree, for the solu- office, and then designing a new solu- Once defense leaders have found their tion is often to shift whole classes of tion. The truly bold part is when a man- place in systemwide discussions, they cases to more appropriate government ager steps out from behind the desk to can use their positions to advance re- systems, saving everyone time and propose solutions to local judges, prose- forms conceived in client communities. money. Still, to spot the issues early and cutors, and court administrators. As this The priorities of citizens, particularly of offer cogent alternatives requires vigi- example illustrates, others may respond families struggling in poverty, often are lance and analysis by defense leaders. quite favorably when the defense leader- different from those of the lawyers and ship proposes solutions that will divert a other professionals who shape criminal For example, Robin Steinberg, Executive certain class of cases away from the jus- justice policy. Instead of opposing the Director of The Bronx Defenders, states: tice system. Such situations can benefit programs of the professionals, communi- all parties. ty residents may simply have a different The Bronx Defenders staff brought to my attention that groups of men were set of concerns, such as the comfort and being arrested for “public lewdness” Leadership in the Public friendliness of courthouse facilities, pro- for sexual activity with other consent- cedures for contacting relatives when ing adult men in several specific sub- Debate About Crime juveniles are arrested, or access to alter- way stations in the Bronx. The police Prevention native dispute resolution. Indeed, defense department had targeted these men and was putting them through the Although this is the most difficult leaders who cultivate this role can bring system, charging them with public dimension to enter, some defenders who the concerns of indigent communities lewdness and treating them as sex have dared to try this arena report sur-

4| Bolder Management for Public Defense prising success. Here are two ways that and families appreciated this work, but Defense leaders can strengthen and pro- public defense leaders have successfully Wallace realized that the public probably mote this part of the service that their argued that their work reduces crime: did not understand it. offices are delivering for the public. At a more systemic level, defense leaders ■ Good defense reduces recidivism, Defense leaders like Wallace can explain can take an active role in the design and which reduces crime. that revolving-door justice is good for promotion of alternative sentencing pro- no one, particularly defenders and their grams that deliver measurable reduc- ■ Good defense reduces crime commit- clients, and that reducing victimization tions in crime. Defense lawyers often ted by the state. is in everyone’s interest. Fundamentally, are aware of the most effective local pro- clients should be in better shape when Jo-Ann Wallace still laughs when she grams that help change client behavior they leave the justice system than when remembers how her colleagues thought for the better. They also can help mobi- they were arrested. If they do return— she was crazy to argue publicly that pub- lize the communities they serve to join and many will—it should be for some- lic defense reduces crime. Wallace was in the design, operation, and accredita- thing less serious, and they should make Director of the Public Defender Service tion of community sentences. Most further progress toward a healthy inte- for the District of Columbia and knew important, they can speak publicly about gration with their community and family. from experience that one of her office’s reducing crime and about the true public interest in public defense. most important jobs was to persuade At an individual level, the relationship prosecutors and judges to sentence between defense professionals and their Defense leaders also can speak about clients to good programs rather than to clients can itself have a salutary effect. preventing crime committed by the state. degrading penitentiaries. The clients

MEMBERS OF THE EXECUTIVE SESSION ON PUBLIC DEFENSE William Bratton, Former Police Commissioner Phyllis Hildreth, Former Chief Counsel for Bill Ritter, Jr., District Attorney New York City Police Department Administration Denver, CO New York, NY Maryland Public Defender Office Ellen Schall, Martin Cherkasky Professor of Ann Christian, Director Baltimore, MD Health Policy and Management Indigent Defense Services Division Mary Hoban, Chief Social Worker Robert F. Wagner Graduate School of Public The State Court Administrator's Office Office of the Chief Public Defender Service Salem, OR Hartford, CT New York University Cait Clarke, Project Manager Michael P. Judge, Chief Public Defender New York, NY Executive Session on Public Defense County of Los Angeles Bryan Shaha, Office of the Alternate Defense Program in Criminal Justice Policy and Los Angeles, CA Counsel Management John P. Kretzmann, Co-Director Greeley, CO John F. Kennedy School of Government Asset-Based Community Development Institute Robert L. Spangenberg, President Harvard University Institute for Policy Research The Spangenberg Group Cambridge, MA Northwestern University West Newton, MA Beth Davis , Former State Defender and Evanston, IL Robin Steinberg, Executive Director Executive Director Michael P. Lawlor, State Representative The Bronx Defenders Mississippi Public Defender Commission State of Connecticut General Assembly New York, NY Jackson, MS House of Representatives Mark Stephens, District Public Defender Tony Fabelo , Executive Director Hartford, CT Knoxville, TN Texas Criminal Justice Policy Council Carlos J. Martinez, Chief Assistant Public Austin, TX Christopher E. Stone, President and Director Defender Vera Institute of Justice Nancy E. Gist , Former Director Dade County Public Defender's Office New York, NY Bureau of Justice Assistance Miami, FL Randolph N. Stone, Clinical Professor of Law Office of Justice Programs Mark H. Moore , Daniel and Florence V. and Director U.S. Department of Justice Guggenheim Professor of Criminal Justice Washington, DC Edwin F. Mandel Legal Aid Clinic Policy and Management University of Chicago Law School Angela Glover Blackwell , President John F. Kennedy School of Government Chicago, IL PolicyLink Harvard University Oakland, CA Cambridge, MA Kim Taylor-Thompson, Professor of Clinical Law Daniel Greenberg James R. Neuhard , President and Attorney- , Director New York University School of Law in-Chief State Appellate Defender's Office New York, NY The Legal Aid Society Detroit, MI Jo-Ann Wallace, Chief Counsel New York, NY Leonard E. Noisette , Executive Director National Legal Aid and Defender Association Francis X. Hartmann , Executive Director and Neighborhood Defender Service of Harlem Washington, DC Senior Research Fellow New York, NY Henry Weinstein, Legal Affairs Writer Program in Criminal Justice Policy Charles J. Ogletree, Jr., Jesse Climenko and Management Los Angeles Times Professor of Law Los Angeles, CA John F. Kennedy School of Government Harvard Law School Harvard University Cambridge, MA Cambridge, MA

November 2001 | 5 Police brutality, racial profiling, dis- ing public defenders or managing system fair. Information gathering to parate sentencing schemes, and unrea- assigned counsel—must be configured build broad institutional and public sup- sonable traffic stops are state crimes to support the defense leader in these port is the cornerstone to success. that the public understands and reviles. tasks, just as the leader supports the To this list, some jurisdictions might add frontline professionals. What are the precise categories of infor- witness intimidation by police and use mation and relationships that leaders of false confessions by prosecutors. In a small office, the defense leader may will need? How will these be shared, Convicting the innocent is the most seri- have to plan the work on all these levels mobilized, and deployed to create value ous consequence of this misconduct. at once. In larger offices, the responsi- on each level? What kinds of reorganiza- Defense leaders should be the first to bility for the office, the system, and the tion will this effort require? And how see the patterns in these state crimes. public might be divided. But in either will the organization and the public They should be the first to alert the pub- case, defense leaders will need two know if the effort is succeeding? The lic and the first to offer solutions that kinds of connections with the daily work answers to these questions await new the public can support. of frontline professionals. The effort will experimentation and more bold leader- require the frontline and the leaders to ship. However, we already know that Conclusion share information and relationships, improving our system of justice as a both of which require outreach and whole depends on bold and innovative Even the boldest leaders would not try renewal. The information will be on leadership within the public defense to accomplish all of this by themselves. paper and in computer networks. The community. Just look at the list. They are going to relationships will be with individuals and stop the revolving door of justice, reduce organizations. Information sharing needs *NOTE: Quotations in this paper were crime, protect liberty, stop police mis- to take place at the local community extracted from transcripts of the meetings conduct, and improve the fairness of the level and in the legislative arena. of the Executive Session on Public Defense system for the public. They are going to and are printed here with the permission of reduce waste, create efficiencies inside All this reorganization requires support the members quoted. the system, and help implement pro- from the legal community. It also re- quires support from the public. Now is The Executive Session on Public Defense was grams advanced by others. And they supported by grant number 1999ÐDDÐBXÐK002, are going to define the work of their an opportune time for assigned counsel awarded by the Bureau of Justice Assistance. The Bureau of Justice Assistance is a compo- organizations, set standards, and align and defenders to harness public aware- nent of the Office of Justice Programs, which ness about issues of fairness in the crim- also includes the Bureau of Justice Statistics, the the separate work inside their offices. To National Institute of Justice, the Office of Juvenile do all this, defense leaders need to reor- inal justice system. Innovative defender Justice and Delinquency Prevention, and the leaders see this time as “a teachable Office for Victims of Crime. Points of view or ganize their shops. Indeed, if this is the opinions in this document are those of the agenda for public defense in the United moment” to educate stakeholders and authors and do not represent the official position or policies of the U.S. Department of Justice. States, it will require reorganization of the public about the important role that the entire industry. For a start, public all public defenders and assigned coun- NCJ 187768 defense organizations—whether employ- sel play in keeping the criminal justice

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