What Policymakers Need to Know to Improve Public Defense Systems

Public Defense PaPublicpers from the Executive Defense Session on Public Defense

What ns 1937, U.S. Supreme Court practices vary throughout the country, I Justice Benjamin Cardozo stated knowing where to start can be difficult. that certain fundamental constitutional Instead of establishing specific out- Policymakers rights are the basis for all other rights comes, this paper serves as a guide— and that these fundamental rights are a map of questions that policymakers Need To Know “implicit in the concept of ordered liber- should ask when deciding where to ty.”1 In criminal trials, the right to coun- begin investigating public defense serv- To Improve sel is a fundamental right. Since the ices, how to direct field researchers, Court’s 1963 decision in Gideon v. and how to evaluate the information Public Defense Wainwright,2 an indigent defendant who gathered. cannot afford counsel must be provided Systems an attorney by the state. The Court Two serious obstacles to improving pub- made the states responsible for how lic defense systems are the lack of data Tony Fabelo public defense would be provided to and lack of systemic policy analysis that criminal offenders who are unable to pay state policymakers need to address the for private counsel. This and subsequent relevant issues concerning public de- Court decisions led states to adopt pub- fense. Examination of the limited litera- lic defense systems. Today, many ques- ture in this area reveals the lack of tions exist as to the effectiveness of empirical research relevant to improving some of these public defense systems.3 public defense systems. This paper pro- poses that policymakers and researchers This paper establishes sets of questions develop a strategy for formulating rele- to aid policymakers in thinking about vant inquiries and then gathering cur- the value and effectiveness of their pub- rent data to assess the effectiveness of lic defense systems and includes several a state’s public defense system. responses to the author’s views by Mark Moore, Daniel and Florence V. To begin, policymakers must identify Guggenheim Professor of Criminal why a state would want a strong public Justice Policy and Management, John F. defense system and formulate key ques- Kennedy School of Government, Harvard tions to ask before deciding how best University, Cambridge, Massachusetts. to improve and evaluate their public 4 Because this field is complex and defense system. Until a comprehensive

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 author and do not represent the official position or policies of the U.S. Department of Justice.

December 2001 | Bulletin #2 body of knowledge is established and powers. Abuses tend to occur first analyzed, reforms in public defense against poor people who are alienated Identifying the Value of systems will continue to be difficult. from the socioeconomic and political Public Defense mainstreams. The general public may “In Tony’s conception, the value of a public “look the other way” when the justice Value of a Strong Public defender office lies only in the services system abuses members of alienated Defense System delivered directly to clients and indirectly to populations, but this apathy may fuel the operations of the court system as a whole. Traditionally, support for a strong public further corruption in the system. Absent from this conception is the value that defense system arises from the notion Widespread corruption can lead to state might be created by expanding the public that a defendant cannot be tried fairly in abuses against law-abiding citizens. defender’s capacity to understand and speak for the U.S. court system without an ade- Providers of public defense services the impact that public policy decisions will have quate defense. Supreme Court Justice maintain the system’s integrity and pre- on those accused of crimes, their families, and Hugo Black stated in the Gideon decision vent corruption of the justice system. their neighborhoods. In effect, Tony’s view that the “right of one charged with crime Therefore, a strong public defense sys- ignores the value that could be produced by a to counsel may not be deemed funda- tem also can help control crime within public defender office through its contribution mental and essential to fair trials in the justice system—crimes committed to the quality of criminal justice policymaking.” some countries, but it is in ours.”5 To by those who abuse state policing, pros- achieve justice, an adversarial system ecutorial, and judicial powers. –Mark Moore structured to search for the truth requires capable counsel for the state and Increasing the Effectiveness of the the defendant. In addition, a strong pub- Justice System to successfully avoid further legal trou- lic defense system is a central compo- bles.6 By managing caseloads and facili- Justice works best when all players nent of an effective crime-fighting policy tating effective alternative interventions within the system are competent and to shield poor citizens and, indirectly, all for special needs populations, public have access to adequate resources. citizens against abuses by the state. It defenders increase the justice system’s When the system includes well-trained also facilitates a smoother operating jus- capacity to respond to growing demands. public defenders, cases move faster tice system and, in so doing, allows the In this sense, public defenders assist in (helping the court manage growing courts to respond effectively to growing the fight against crime and contribute to caseloads), and the system tends to caseloads. A strong public defense sys- the effective operation of programs that generate and implement innovative pro- tem promotes the legitimacy of the jus- may help reduce recidivism, thereby grams. With members of such nontradi- tice system—legitimacy necessary to increasing the effectiveness of our jus- tional populations as homeless and maintain public support. tice system. mentally ill people flooding the system, Protection Against Crimes public defenders can act as mediators to Legitimacy of the Judicial Process Committed by the State facilitate access to special programs that divert these offenders away from crowd- A strong public defense system is essen- A strong public defense system is the ed jails and prisons. For example, tial for maintaining the legitimacy of the first line of defense against corruption in Miami’s Public Defender Anti-Violence judicial process. The public’s belief that the justice system. The state can commit Initiative reaches out to a variety of pub- the system is governed by fair play is crimes against its citizens by abusing lic and private service providers in the essential for long-term support. Studies policing, prosecutorial, and judicial community that a defendant might need show that the public supports the police when its members—and particularly, citizens who live in poor neighborhoods— feel police are playing by the rules.7 A The Executive Session on Public Defense (ESPD) was strong public defense system allows designed to encourage a new form of dialogue between high-level practitioners and scholars, with a view to those most alienated from the institu- redefining and proposing solutions for substantive policy tional mainstream to feel that the sys- issues. Practitioners rather than academicians were given tem is not stacked against them, even majority representation in the group. Meetings were con- when they break the law and are pun- ducted as loosely structured seminars or policy debates. Between 1999 and 2001, ESPD met 5 times. During the ished. Among alienated populations, this 3-day meetings, the 30 members discussed the facts and perception of fairness helps maintain the values that have guided, and those that should guide, peace by reducing grievances against the public defense. system. When lawbreakers confront a

2|What Policymakers Need To Know To Improve Public Defense Systems fair justice system, they get the message Another obstacle to gathering relevant that the public values the law. When data and making comparisons is that Costs of Quality lawbreakers confront an unfair justice funding levels for indigent defense “Tony is right, I think, to want to get harder system, they get the message that the services vary among states. A information about the costs of providing the public values power and privilege, Spangenberg Group survey finds that quality of publicly supported criminal defense instead of the law. 21 states fund public systems and the that is consistent with our notions of what all remaining states rely on county funds or defendants are entitled to have. This standard Research To Guide a mix of funds derived from county, can get dragged down to a minimum, of course, state, and court filing fees. The survey Policymaking by an interest in satisfying taxpayers’ demands finds that assigned counsel’s hourly to save money, and by the public’s belief that A significant problem facing policymak- compensation at felony trials (noncapital ‘most defendants are guilty anyway.’ But we ers is the lack of comprehensive cases) varies significantly among states, ought to try to fix a standard at a level above research to guide public defense policy with some paying less than $40 for in- the current tawdry one. It is too easy for us to and reform. Advocates for improving court services, with a maximum benefit imagine that ‘we’ would never need indigent public defense services debate issues of $1,000, and others paying up to $60, defender services and that ‘they’ who do are not regarding the best way to deliver quality with a maximum benefit of $3,000. worth the trouble. This leads to stinting on the public defense services, with a strong Because funding for defense services is quality of the service. If, however, we carry in bias in favor of enhancing public defend- affected by a wide variety of local cir- our minds the notion that ‘we’ might actually er offices. As expected, advocates favor cumstances, calculating and comparing find ourselves in ‘their’ position, the standard is spending more money rather than less funding levels among states is difficult. likely to rise.” on these services. For policymakers, however, a basic obstacle to promoting Further, federal research funds for the –Mark Moore reform is the lack of systematic research defense lack parity with those for prosecution and law enforcement; this has not to guide policy development. Conse- public defense service providers, which motivated the research community to quently, efforts are under way to gather would serve as a clearinghouse for develop a basic research agenda as a data, set standards, and measure research and other information. outcomes. starting point for informing policymakers on public defense operations. Moreover, Obstacles to Gathering Data and state legislatures have been reluctant to Developing a Research Setting Standards provide resources to research state and Agenda local public defense concerns. One rea- A major obstacle to gathering data is the Localities need a research agenda to col- son for this reluctance may be that poli- inconsistency in the delivery of public lect accurate and useful data, establish cymakers have not been clear about defense services among systems nation- standards, and identify better practices why the research is needed or what is wide. This makes it difficult not only to in public defense systems. Each locality required to achieve it. Another reason for gather data but also to make compar- should establish agreed-upon standards this reluctance may be society’s—and isons between systems. According to and provide support to defense lawyers thus legislators’—ambiguous commit- The Spangenberg Group (a nationally to meet those standards when represent- ment to funding public defense services. recognized research and consulting firm ing the indigent accused. In 1997, the Because of this lack of funding and gen- that specializes in improving justice National Legal Aid and Defenders eral interest in defense research, individ- programs), most states deliver public Association’s Blue Ribbon Committee on ual policymakers concerned with public defense services using a public defend- Indigent Defense stated that indigent defense issues must start from scratch to er’s office (18 states) or a combination of defense systems need “well-researched, identify areas for data collection that will public defender, assigned counsel, and reliable, nationally accepted standards.” ground future decisions in fact rather contract defender (another 29 states).8 than anecdote. A policy research agenda that guides Only three states rely mainly on an systemic reforms should identify prima assigned counsel system, with or with- In summary, reasons for the lack of re- facie elements that are known compo- out contract defenders. States vary also search data and analysis in public defense nents of quality defense. Quality repre- in how they regulate public defense sys- services include little federal and state sentation of a targeted group requires tems. Most develop minimum state stan- funding, a weak political constituency for identifying core elements that make a dards, whereas others provide minimal public defense, and no nationwide unifor- system efficient, fair, cost-effective, and state oversight with more local control.9 mity of state defender services. What is productive. Support for one aspect of a needed is a national infrastructure for public defense system will affect other

December 2001 | 3 elements of the system. To make Standards for Public Independence. How do mechanisms informed decisions, legislators and Defense Systems used to appoint and compensate counsel system designers must consider the affect the independence of counsel to interrelationship of all elements within Although the American Bar Association engage in a vigorous defense? Indicators a public defense system. has established some minimum stan- need to be developed to assess the dards, they must be revised for modern extent to which appointment and fund- Before beginning to collect data and defense systems. Others have articulated ing are removed from parties that can study local public defense services, a general standards for public defense sys- pressure defense counsel into engaging research agenda must be designed. In tems, including James Neuhard, Director in less than a vigorous defense to satisfy previous literature concerning public of the Michigan Appellate Defender court processes or funding goals. defense, the most basic questions have Office, and Scott Wallace, Director of the not been answered in a systematic Defender Legal Services for the National Coverage. What is the target population way and, apparently, cannot be easily Legal Aid and Defender Association. to be served? How are requests for answered for particular localities with- With the advice of other public defense counsel screened for eligibility for the out a well-established research agenda. leaders, they have written “The Ten appointment of counsel? The eligibility Commandments of Public Defense criteria should allow a range of popula- Research must provide hard facts to Delivery Systems,”10 which provides tions to be served, from a minimal num- progress from general to specific opera- guidance for creating standards that ber of defendants who meet only very tional strategies directed at improving define quality in defense systems. strict definitions of indigence to a larger public defense services. The research number that includes marginally indi- should provide the knowledge to With literature reviews and case studies, gent defendants, who can be served these Commandments may be refined to using copayments. ■ Develop standards for providing satisfy the needs of a specific locality. If quality public defense services. developed with accurate case studies, What eligibility criteria will be established for appointing publicly supported ■ Determine funding needed in a locali- they could aid policymakers substantial- counsel? The Constitution establishes ty for a public defense system to meet ly. To build on Neuhard and Wallace’s the basic concept of right to counsel agreed-upon standards. Commandments, a policy research strategy should examine the many dimen- regardless of ability to pay. But it is ■ Monitor compliance with standards. sions at work in a public defense system much less clear on the question of what and identify what information needs constitutes indigency for deciding who ■ Design and measure performance to gathering, what needs reform, what will be eligible for publicly supported justify investments in public defense. impact those reforms will have on other counsel. For example, what will be measured—wealth or income? Will the ■ Determine operational procedures parts of the system, and how to make capacity to pay be calculated for the par- that can be improved to increase the proposed reforms. ticular individual or will resources of performance. Nine Elements of a extended family members be considered State financial expenditures made with- Research Strategy as well? What will be the cutoff point for out understanding how best to achieve eligibility? Obviously, eligibility is an these policy goals will not serve the The following list highlights nine major important design feature because it criminal justice system well—nor will elements to include in developing a influences the overall size of the poten- they serve the growing number of indi- public defense research agenda. The tial client population and workload of viduals who cannot afford to hire research agenda needs to examine the the system. defense counsel. The minimum expecta- structural characteristics (elements one Workload. Are mechanisms in place to tion for indigent defendants is that they through six) of the public defense sys- monitor properly the workload handled receive a competent defense that meets tem first—those that make it indepen- by each defender? Workload is a mea- minimum constitutional standards. dent, determine workload capacity, and sure of the capacity to do the job and the However, until an adequate defense— determine how to organize and prepare demand. It is thought to be related to one that extends beyond basic constitu- for its work. Next, it needs to examine quality but is not a direct measure of tional requirements—is defined and the quality of services provided, using quality representation. Closely tied to made operational with standards, no sig- the last three elements—notification the issue of defense counsel qualifica- nificant progress will occur in improving time, access to counsel, and overall tions and case complexity, workload defense services. quality of representation. measures need to be developed to

4|What Policymakers Need To Know To Improve Public Defense Systems The Ten Commandments of Public Defense Delivery Systems

Poverty is not an excuse to provide less should be furnished upon arrest, deten- should represent the client throughout than competent representation. tion, or request, and in no event more the direct appeal. than 24 hours thereafter. Public defense delivery systems must 8. Provide counsel with parity of efficiently and effectively provide high 4. Provide counsel sufficient time and resources with the prosecution and quality, zealous, conflict-free representa- a confidential space to meet with the include counsel as an equal partner in tion to those charged with crimes who client. Counsel should interview the the justice system. There should be par- cannot afford to hire an attorney. To meet client as soon as practicable before the ity of workload, salaries, and other this goal, preliminary examination or the trial date. resources (such as technology, facilities, Counsel should have confidential access legal research, support staff, paralegals, Thou shalt . . . to the client for the full exchange of investigators, and access to forensic ser- 1. Assure that the public defense func- legal, procedural, and factual information vices and experts) between prosecution tion, including the selection, funding, between counsel and client. To ensure and indigent defense. Assigned counsel and payment of appointed counsel, is confidential communications, private should be paid a reasonable fee in addi- independent. The indigent defense func- meeting space should be available in tion to actual overhead and expenses. tion should be independent from political jails, prisons, courthouses, and other Contracts with private attorneys for pub- influence and subject to judicial supervi- places where defendants must confer lic defense services should never be let sion only in the same manner and to the with counsel. primarily on the basis of cost; they same extent as retained counsel. To safe- should specify performance requirements guard independence, and to promote 5. Assure counsel’s workload matches and the anticipated workload, should pro- efficiency and quality of services, a non- counsel’s capacity. Counsel’s workload vide an overflow or funding mechanism partisan board should oversee defender, of both appointed and other work should for excess, unusual, or complex cases, assigned counsel or contract systems. never be so large as to interfere with the and should separately fund expert, inves- Ensuring that the judiciary is indepen- rendering of quality representation or tigative, and other litigation support ser- dent from undue political pressures is an lead to the breach of ethical obligations, vices. No part of the justice system important means of furthering the inde- and counsel is obligated to decline should be expanded or the workload pendence of indigent defense. appointments above such levels. National increased without consideration of the caseload standards should in no event be impact that expansion will have on the 2. Assure that where the caseload is exceeded, but the concept of workload balance and on the other components of sufficient, the public defense delivery (i.e., caseload adjusted by factors such as the justice system. Indigent defense system consists of both a defender case complexity and an attorney’s non- should participate as an equal partner in office and the active participation of representational duties) is a more accu- improving the justice system. the private bar. The private bar partici- rate measurement. pation may include part-time defenders, a 9. Provide and require counsel to controlled assigned counsel plan, or con- 6. Assure counsel’s ability, training, attend continuing legal education. tracts for services. The appointment pro- and experience match the complexity Counsel and staff providing defense ser- cess should never be ad hoc, but should of the case. Counsel should never be vices should have systematic and com- be according to a coordinated plan direct- assigned a case that counsel lacks the prehensive training appropriate to their ed by a full-time administrator who is an experience or training to handle compe- areas of practice and at least equal to attorney familiar with the varied require- tently, and counsel is obligated to refuse that received by prosecutors. ments of criminal practice in the jurisdic- appointment if unable to provide zealous, tion. Since the responsibility to provide high quality representation. 10. Supervise and systematically defense services rests with the state to review counsel for quality and efficien- assure uniform quality statewide, sys- 7. Assure that the same attorney con- cy according to nationally and locally tems should be funded and organized at tinuously represents the client until adopted standards. The defender office, the state level. completion of the case. Often referred its professional and support staff, and to as “vertical representation,” the same assigned counsel or contract defenders 3. Screen clients for eligibility, then attorney should continuously represent should be supervised and periodically assign and notify counsel of their the client from initial assignment through evaluated for competence and efficiency. appointment within 24 hours. Counsel the trial and sentencing. On appeal, the attorney assigned for the direct appeal

December 2001 | 5 guarantee the capacity of counsel to released on bail and gather witnesses defendants to see their counsel early is properly handle their cases. For exam- and other resources to prepare the an apparent operational standard that ple, in some states, such as Tennessee, defense. Notification time is a feature of both legislatures and courts may specify. workload measurements are more accu- quality representation that may be val- Whether or not standards mandated by rate because analysts use weighted ued by both society and the client. It is legislatures or courts are higher or caseload measures. thought by both to be a direct but incom- lower than one another, the challenge plete measure of the quality of represen- for system managers is to calculate the Qualifications. Are mechanisms in place tation in a case. However, the cost costs to meet the specified standards of to guarantee that the abilities of defense associated with providing short notifica- quality. counselors match the complexity of the tion time is that a number of lawyers cases to which they are assigned? must be on duty to respond around the The development of national standards Criteria that categorize counselor qualifi- clock. A consequence of this readiness in the areas highlighted above may pro- cations in relation to their types of cases for peak workloads and quick response vide a comparative benchmark. There- establish a baseline for evaluating is that this same capacity is available fore, reform advocates need to show whether qualified defense lawyers are even when the demand for legal services policymakers how a public defense sys- provided to the accused. Generally, qual- is low. tem can be improved by focusing, ification standards are thought to ensure at least initially, on the critical issues quality representation, but qualifications Access to Counsel. How are defendants above. For example, it would be power- are not a direct measure of quality. granted access to counsel and how is ful for case studies to reveal that confidentiality protected? Access to coun- ■ Support Services. Are mechanisms in sel is closely related to notification time A system’s target population omits a place to access current research materi- and may affect costs significantly. Or- large group of marginally poor people als, investigators, expert witnesses, and ganizational structures can facilitate or who cannot afford a quality defense. sentencing specialists? Developing stan- handicap access to counsel and confiden- ■ Appointment notification time is dards for minimum support services tiality, which in turn can impact the effec- longer than in most other systems. needed for specific types of cases is tiveness of attorney-client interactions. essential in the calculation of adequate ■ Discretionary appointments, which support services. Like workload and Overall Quality Representation. What are made by judges and follow no qualifications, support services are is the actual quality of performance in established guidelines, have a nega- thought to be an attribute of quality but representing individual clients—as tive impact on the independence of not a direct measure. judged by clients and as judged against counsel even if access to counsel is professional standards? Training. Are mechanisms in place to adequate. require specific training or continuing It may appear that the nine elements ■ Qualification standards for counsel legal education for defense counselors? listed above are arranged in a sequence are not present. Training is essential for defense lawyers that moves from “policy” (legislative to maintain their skills, particularly in interest and action) to “operations” (left ■ Workloads are not monitored and areas that require special expertise (for to the discretion of system managers), may be excessively high. example, defending convicted sex offend- but this is not necessarily the case. ■ ers who are eligible for post-prison sen- Legislators may believe some aspects of Support services are lacking. tence civil commitment under the new service quality are fundamental to public ■ Continued education and/or training civil commitment statutes adopted in defender offices, and consequently, law- are not required. some states). Training also may help makers may design policies to limit or retain a racially and culturally diverse guide the discretion of system managers. By defining the elements of the public public defense bar. Thus, the kind of justice lawmakers defense system and implementing stan- intend to produce will affect the opera- dards and practices, the quality of sys- Notification Time. How long does it tional features of the system as system tems may be measured. In similar take for counsel to be appointed and the managers implement policy. localities (outside and inside a state defendant to be notified of the appoint- under examination), the evaluation of ment? The speed of appointment affects Courts, too, can mandate performance an individual defense system may also the counsel’s ability to influence early standards that identify attributes of allow other systems to revise their poli- stages of the criminal prosecution pro- quality that must be met. As mentioned cies based on the one evaluation— cess and the defendant’s ability to be in the nine elements above, the need for creating a more efficient and fair public defense system nationally. 6|What Policymakers Need To Know To Improve Public Defense Systems Desired Outcomes Judged by Whom?

“In the provision of public defender services, a gap appears between the practical results or outcomes that the society desires and what the individual client desires. Society may want crime control and low cost. The client wants effective defense of his liberty interests and is not concerned with costs. The way to close this gap is to return to the original idea that what everyone should want in providing public defender services is not any particular outcome such as more or less crime. The society should be interested in ensuring that its criminal justice system operates justly, and should understand that that means providing adequate defense services to those who cannot pay to defend themselves. That is the outcome they seek: justice at low cost, not crime control. The client should understand that he is entitled to a quality defense, but that his idea of a quality defense may not be exactly the same as society’s view.

The difficulty in looking at public defense services in terms of alternate outcomes is that traditionally the most important outcomes have focused on an accused person’s liberty interests, or a reduction of state supervision, or a reduction of state supervision to a less intensive form. A defender’s traditional role is to defend the liberty interests of a client against the state’s desire to bring the defendant under state control. In principle, we could even measure this outcome: by measuring the total number of years in prison saved by the efforts of public defenders. The difficulty with this view of measuring outcomes of public defenders is that society as a whole may not think this result is particularly valuable. From a social perspective that values crime control over many other competing values, the idea that we use public funds to produce freedom for accused criminals seems perverse. But from a client’s perspective, this does not seem perverse at all.

One can imagine a variety of outcomes other than improving the overall quality of justice in society, such as providing services to address the client’s underlying problems. Defendants might feel better treated by the society, and with that, somewhat more willing to accept the judgments offered. It is even possible that effective criminal representation focused on finding just and effective dispositions for defendants might reduce crime over the long run. And, as a consequence, effective dispositions might reduce the overall number of people in prison and relative costs imposed. These are potential benefits for both the society and the individual service recipients. In that respect, these beneficial outcomes are like the results that we anticipate for other kinds of social service programs.”

–Mark Moore

Defining and Measuring that a given locality’s level of public the relationship between level of re- Outcomes defense funding adversely affects stan- sources and quality representation.”11 dards and outcomes for indigent offend- Opinion surveys of judges, prosecutors, What is the market value of quality rep- ers. Without better defined standards defense lawyers, and defendants show resentation? This key question must be and outcomes, it will be difficult to that these players perceive private attor- answered in order to address funding address the issue of what is adequate neys to be more effective. However, decisions. In the theory of a pure free funding for public defense. Clearly, sys- statistically, defendant cases that are market system, if the price paid by the tems that have been neglected to the examined reveal no evidence to support state or county for defending an indigent extent that they are unable to meet basic this perception.12 in a criminal case were not competitive, standards in the areas delineated earlier no competent lawyers could be hired. A can be taken to task for providing too lit- Sentencing studies that consider type of system that pressures bar members to tle funding. When the systems seem to counsel have produced mixed results. participate in a public defense market meet the basic requirements, however, “The more controlled the sentencing reduces competitive forces. A system the question becomes, what would study is, the more likely that the type of that treats all lawyers as if they were of additional funding buy in outcomes for counsel will have no effect on case out- 13 equal competence also reduces the com- defendants—greater client satisfaction? come.” No empirical evidence links petitive forces by allowing “rookies” to More litigation? That their voices be what outcomes are expected at higher bid for jobs that would be more difficult heard? If public defense lawyers are paid levels of funding with those achieved at to get in a free market. Under these cir- a lower fee than private lawyers for lower levels of funding. Therefore, poli- cumstances, the state or funding agency defending comparable cases, will indi- cymakers and legislators must ask the has the upper hand and the private sec- gent defendants be more likely to be following questions of defense systems tor ends up subsidizing the provision of indicted, incarcerated, denied some with fewer financial resources. Will defense services—just as privately other benefit, or to receive longer better-funded defense systems insured individuals subsidize the health sentences? ■ Help the judicial system process care of uninsured indigent patients. Few studies, according to a review of cases faster? This harsh market reality will be hard to the literature conducted by Feeney and change unless evidence clearly indicates Jackson in 1991, “have closely examined December 2001 | 7 What Are Valued Outcomes?

“Tony is correct to want to define more clearly the outcomes society seeks through the provision of public defender services, and to get some quantitative indicators of the extent to which the desired outcomes are achieved. He may be right to try to value the outcomes in terms of some kind of ‘market value’ so that the benefits can be directly compared with the costs of providing the services. This is all part of public defenders’ being accountable not only to their clients for providing a quality defense, but also to the public and their representatives who are paying the costs of providing the service. It is certainly important in making appropriation decisions that the legislature have some idea of the costs of providing different levels of quality defense.

The question of what constitutes the valuable outcomes of public defender offices remains uncertain. Are we interested in producing important attributes of justice (regardless of cost or impact on overall levels of crime), or are we interested in achieving more practical, material results such as reductions in crime and costs? Is the value of the service to be judged by society in terms of its particular desires, or is it to be judged by the client or beneficiaries in whose interests, at least in part, the services are provided? Can we see the value produced right at the point of service delivery as the public defender offers a more or less zealous defense of the client’s interests, or do we have to wait to see what happens over time to the subsequent criminality of those who are defended? Should we try to capture the benefits of public defenders in money terms? Should we try to calculate the economic costs of crimes either allowed or avoided, and add them to the costs of imprisonment either imposed or avoided? Or, should we impute a financial value to the public defense services by attaching a price that the private market would charge for the same services? Or, should we ask the clients to say how much they would have been willing to pay for the services they received from their public defense lawyer? We must ask these hard questions to conceptualize and then measure the valuable outcomes that society expects to achieve by supporting public defender services.”

–Mark Moore

■ Provide better pretrial and sentenc- defense systems need a national of indigent defendants are countered by ing alternatives? research agenda to generate critical anecdotes of injustices to victims. With- information to guide state or local poli- out accurate empirical information on ■ Provide better coordination of sup- cymakers who may be struggling to what to reform, how best to reform it, port services? improve their systems. Such information and what outcomes to expect, it will be will help policymakers develop stan- difficult to achieve the consensus neces- ■ Increase public confidence in the jus- dards for public defense services, under- sary to improve public defense services. tice system? stand how achieving these standards ■ Decrease the errors that deny defen- will affect funding, and design perfor- For More Information dants’ rights, without increasing pub- mance measures to demonstrate the More information on public defense is lic safety risks? returns and generate higher investments available from the following organiza- in public defense systems. Obtaining better research data is a criti- tions: cal first step to answering these ques- Strong advocacy is an inherent quality of U.S. Department of Justice: tions. Operational research also can be the public defense lawyer culture, driven www.usdoj.gov used to improve service delivery. For by the conviction that these attorneys example, research can be used for “spot” and other advocates have “their hearts The Gideon Project, Open Society quality control checks—such as uncov- in the right place.” However, emotional Institute: www.soros.org ering problems with the billing practices zeal is not enough in an era that re- of assigned counsel or identifying areas quires hard facts to influence policymak- National Legal Aid Defender Association of billing and accountability that can be ing. Today, this vein of zealous trial (NLADA): www.nlada.org improved—and for monitoring caseloads advocacy struggles against a lack of rel- The Spangenberg Group: and workloads to maintain quality. evant policy analysis to guide and influence the enactment of policies that www.spangenberggroup.org Conclusion affect the defense function. Vera Institute of Justice, National Defense lawyers are a necessity, not a With the controversial issue of public Defender Leadership Project: luxury, in any criminal justice system,14 outlays for the legal defense of alleged www.vera.org but it is important to identify the best criminals, the lack of hard facts makes it American Bar Association, Division for ways to provide public defense services especially difficult to enact effective poli- Legal Services: www.americanbar. before deciding on funding. This nation’s cies. Anecdotes about particular abuses org/legalservices

8|What Policymakers Need To Know To Improve Public Defense Systems 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

The Brennan Center for Justice at New Carol J. DeFrances and Marika F.X. lawyers and various support services to York University School of Law: Litras, Indigent Defense Services in Large provide indigent defense. An assigned www.brennancenter.org Counties, 1999, National Survey of counsel system relies on the assignation Indigent Defense Systems, 1999, of defense counsel by an appointed National Association of Criminal Defense November 2000 (NCJ 184932) authority (usually the judge or a de- Lawyers, Indigent Defense Council: signee), and the defense counsel are pri- www.criminaljustice.org Notes vate practice attorneys paid a standard fee. In a contract system, the funding National Equal Justice Library, 1. Palko v. Connecticut, 302 U.S. 319 agency contracts with private law firms, Washington College of Law, American (1937). which provide their services at a con- University: http://nejl.wcl.american.edu 2. Gideon v. Wainwright, 372 U.S. 335 tractual rate. Several Bureau of Justice Statistics (1963). 4. This bulletin does not address public reports address public defense findings, defense issues in capital cases. including 3. Throughout this article, the term “public defender” refers to all public defense 5. Gideon, 372 U.S. 344. Steven K. Smith and Carol J. DeFrances, lawyers, including professional full-time Indigent Defense, Bureau of Justice public defenders, assigned counsel, and 6. National Legal Aid and Defender Statistics Selected Findings, February contract lawyers. A public defender office Association, “Community Partnerships,” 1996 (NCJ 158909) is a publicly funded agency that hires December 2001 | 9 in Indigent Defense, Vol. 3, No. 2 that have no public defender system Counsel, Retained Counsel: Does the (May/June 1999). across the entire state. Type of Criminal Defense Counsel Matter?” Rutgers Law Journal, Vol. 22, 7. See e.g., Blaine Harden, “Poll Shows 9. The American Bar Association, along No. 361, 410 (1991). City’s Blacks Fearing Brutality and Bias with most states, has established writ- but Optimistic on Future,” New York ten guidelines. See e.g., ABA Standards 12. Id. at 408. Times, June 26, 2000, at A29. “Black for Criminal Justice: Providing Defense residents of New York City are afraid of Services, 3d Edition (Washington, DC: 13. Id. at 338. being brutalized by the police, but they American Bar Association, 1992), 14. Gideon, 372 U.S. at 344. See also welcome and appreciate officers who www.abanet.org/crimjust/standards/ Powell v. Alabama, 287 U.S. 45, 68–69 keep criminals out of their neighbor- defsvcs_toc.html. State standards for (1932). hood.” Id. at A29. public defense practices can be accessed on the National Legal Aid and Defender 8. For a more complete explanation of The Executive Session on Public Defense was Web site (www.nlada.org). supported by grant number 1999ÐDDÐBXÐK002, how defender services are provided, see awarded by the Bureau of Justice Assistance. Robert L. Spangenberg and Marea L. 10. For complete text, see The Bureau of Justice Assistance is a compo- nent of the Office of Justice Programs, which Beeman, “Indigent Defense Systems in www.ojp.usdoj.gov/indigentdefense/ also includes the Bureau of Justice Statistics, Law and Contemp- the National Institute of Justice, the Office of the United States,” compendium/standardsv1/v1intro.htm. Juvenile Justice and Delinquency Prevention, orary Problems, Vol. 58, No. 31 (1995). and the Office for Victims of Crime. Points of 11. Floyd Feeney and Patrick G. view or opinions in this document are those of Maine and North Dakota are two states the author and do not represent the official posi- Jackson, “Public Defenders, Assigned tion or policies of the U.S. Department of Justice.

NCJ 190725

10 | What Policymakers Need To Know To Improve Public Defense Systems