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Contracting for Indigent Defense Services: a Special Report

Contracting for Indigent Defense Services: a Special Report

U.S. Department of Office of Justice Programs Bureau of Justice Assistance

CCONTRACTINGONTRACTING FOR FOR IINDIGENTNDIGENT DDEFENSEEFENSE SSERVICESERVICES AA SSPECIALPECIAL RREPORTEPORT

Monograph

I NDIGENT D EFENSE S ERIES #3 Monograph 5/25/00 4:50 PM Page cov2

U.S. Department of Justice Office of Justice Programs 810 Seventh Street NW. Washington, DC 20531

Janet Reno

Daniel Marcus Acting Associate Attorney General

Mary Lou Leary Acting Assistant Attorney General

Nancy E. Gist Director, Bureau of Justice Assistance

Office of Justice Programs World Wide Web Home Page www.ojp.usdoj.gov

Bureau of Justice Assistance World Wide Web Home Page www.ojp.usdoj.gov/BJA

For grant and funding information contact U.S. Department of Justice Response Center 1–800–421–6770

This was prepared by The Spangenberg Group for the Bureau of Justice Assistance, Office of Justice Programs, U.S. Department of Justice. The opinions, findings, and conclusions or recommendations expressed in this document are those of the authors and do not neces- sarily represent the official position or of the U.S. Department of Justice.

The Bureau of Justice Assistance is a component of the Office of Justice Programs, which also includes the Bureau of Justice Statistics, the National Institute of Justice, the Office of Juvenile Justice and Delinquency Prevention, and the Office for Victims of . CONTRACTING FOR INDIGENT SERVICES A SPECIAL REPORT

April 2000

NCJ 181160

Prepared by The Spangenberg Group Robert L. Spangenberg, Marea L. Beeman, David J. Carroll, David Freedman, Evelyn Pan, David J. Newhouse, Dorothy Chan From the Director

Too often, citizens and public officials do not acknowledge that ade- quately supporting indigent defenders is critical to preserving the constitu- tional of individuals accused of . To function properly, the system needs all of its components—prosecution, adjudica- tion, , and defense—operating effectively.

One important way we can bolster indigent defense in this country is by educating criminal justice practitioners, elected officials, and the public about the challenges facing the indigent defense community. This BJA report series addresses key issues that attorneys and managers in indigent defense systems struggle with every day. It is our hope that the information and recommendations provided here serve as a valuable resource for all of us working to improve the justice system.

BUREAU OF JUSTICE ASSISTANCE iii Contents

I. Introduction ...... 1

II. History of Indigent Defense Contracting in the ...... 3 Judicial Responses to Systems...... 5 and Contract Systems...... 7 The New York City Experience...... 8 Empirical Studies of Contracting Systems ...... 10

III. Characteristics of Deficient and Effective Contract Systems . . . . . 13 Characteristics of Deficient Contract Systems ...... 13 Characteristics of Effective Contract Systems ...... 16

IV. Conclusion: Lessons Learned ...... 19

V. Appendix: National Standards ...... 23

VI. For More Information ...... 25

BUREAU OF JUSTICE ASSISTANCE v I. Introduction

In 1997 and 1998, a rural county move on to the next case. One in California agreed to pay a low- afternoon, however, the associate bid contractor slightly more than was given a case scheduled $400,000 a year to represent half for the following week. The of the county’s indigent defen- case involved multiple felony and dants. The contractor was a private charges. When she practitioner who employed two looked at the case file, the associ- associates and two secretaries, but ate discovered that no pretrial no or investigator. The motions had been filed, no contract required the contractor to list had been compiled, no expert handle more than 5,000 cases had been endorsed, and each year. All of the contractor’s no one had been subpoenaed. In expenses came out of the contract. short, there had been no investiga- To make a , the contractor tion of any kind into the case, and had to spend as little time as pos- she had no one to help her with the sible on each case. In 1998, the basics of her first trial. contractor took fewer than 20 cases—less than 0.5 percent of the The only material in the case file combined felony and misdemeanor was five pages of reports. In caseload—to trial. these reports she found of a warrantless search, which indi- One of the contractor’s associ- cated strong grounds for suppres- ates was assigned only cases sion. She told the she was involving . She car- not ready to proceed and that a ried a caseload of between 250 continuance was necessary to and 300 cases per month. The preserve the defendant’s sixth associate had never tried a case right to . The before a jury. She was expected to continuance was denied. The plead cases at the defendant’s first associate refused to move forward appearance in so she could with the case. The contractor’s

About the Authors of This Special Report This special report was researched and written by the staff of The Spangenberg Group, a nationally recognized criminal justice research and consulting firm working to improve the delivery of indigent defense services. Located in West Newton, Massachusetts, The Spangenberg Group has provid- ed research and technical assistance for justice in every state in the nation.

BUREAU OF JUSTICE ASSISTANCE 1 CONTRACTING FOR INDIGENT DEFENSE SERVICES

other associate took over the case work when appropriate safeguards and pled the client guilty to all are developed and implemented. charges. The associate who had asked for a continuance was fired. This special report was written for individuals in the justice system In this California county, critics’ who are using, considering, or worst fears about indigent defense implementing an indigent defense contract systems came true. When contract system. The report pre- contract systems are created for sents the major judicial and legisla- the sole purpose of containing tive to deal with those costs, they pose significant risks to systems, examines the best and the quality of representation and worst features of contract systems, the integrity of the criminal justice and discusses the national stan- system. We have also learned, dards that govern contract systems. however, that contract systems

*Throughout this special report, the term contract refers to legal agreements between a provider and funder. This excludes staff-based programs with annu- al budgets (traditional public defender agencies) but includes nonprofit corpo- rations under contract with a funder (usually in response to a bidding process), part-time contractors, and contractors who may be referred to as the jurisdic- tion’s public defender. The term contractors refers to the attorney, firm, associated attorneys or firms, or (nonprofit or for-profit) that pro- vides representation to indigent persons under contract.

2 II. History of Indigent Defense Contracting in the United States

Two landmark decisions of the There are a number of reasons U.S. Supreme Court, Gideon v. contract systems are becoming Wainwright, 372 U.S. 335 (1963) more prevalent. First, the percent- and Argersinger v. Hamlin, 407 U.S. age of defendants in criminal cases 25 (1972), paved the way for the receiving court-appointed counsel is appointment of counsel to represent growing.1 Second, in some jurisdic- indigent defendants in state court. tions with a primary defender orga- These decisions left to the states the nization, conflict caseloads2 and responsibility to determine how to case overload increasingly are being establish and fund systems to pro- handled by contractors rather than vide representation to indigent by assigned counsel. Third, funding defendants. Some states, in turn, authorities are seeking ways to shifted the responsibility to individ- reduce costs through privatizing ual counties. public sector services, including indigent defense services. And Initially, the vast majority of juris- fourth, efforts are under way, as in dictions provided indigent defense New York City, to reduce the budget through either assigned counsel or and the number of cases handled by a public defender office. But in the large institutional public defender past 15 years, the number of juris- offices by putting portions of their dictions providing some portion of primary work out for bid. their indigent defense through a contract system has increased Critics of contract programs dramatically. More recently, some traditionally have raised two con- have replaced as- cerns.3 The first is that contract signed counsel programs with con- programs will inevitably lead to a tracting. Very few jurisdictions have lower standard of representation replaced public defender offices through the bidding system, which with contracting. emphasizes cost over quality. The

1 It is widely estimated that 60 to 90 percent of all criminal cases involve indigent defendants. 2 The term conflict caseloads refers to cases in which the primary public defender organization has a conflict of interest (for example, cases involving codefendants or cases in which a witness against the defendant was previously represented by the public defender). 3 See, for example, Nelson, Meredith Anne, 1988, “Quality Control for Indigent Defense ,” California Law Review 76: 1174; Spangenberg, Robert L., Marea L. Beeman, and Catherine L. Schaefer, 1996, “Questions and Answers Concerning Fixed Price Contracts for

BUREAU OF JUSTICE ASSISTANCE 3 CONTRACTING FOR INDIGENT DEFENSE SERVICES

Types of Contracts

Across the nation, jurisdictions are using a variety of contracts to provide indigent defense services. The following is a brief description of each type. Fixed-Fee, All Cases—specifies the total amount of compensation the will receive for work on all cases he or she is assigned during a speci- fied contract period. The number of cases assigned to the attorney is not capped; he or she is expected to accept all appointments that arise in the except those in which there is a conflict of interest. Fixed-Fee, Specific Type of Case—establishes the total amount of compen- sation the lawyer will receive, but it specifies a particular type of case as well (e.g., all misdemeanors). There is no limit to the number of cases an attorney will be assigned during the contract period. Flat Fee, Specific Number of Cases—pays a flat fee for all work completed based on a specific number of cases the attorney agrees to accept during the contract period. Flat Fee Per Case—establishes a fee by case type (e.g., $150 per misde- meanor), and the attorney agrees to take all cases of that type that arise in the jurisdiction during the contract period. Hourly Fee With Caps—pays the attorney an hourly fee established in the contract but includes a cap on the total amount of compensation he or she can receive. Once the ceiling is reached, the attorney may be required to per- form additional work without compensation. Hourly Fee Without Caps—pays the attorney an hourly fee established in the contract, but also covers the actual expenses of each case. In jurisdictions using fixed-fee and flat fee, specific number of cases con- tracts, the funder knows in advance the total costs associated with representa- tion, regardless of fluctuations or peculiarities in charging practices, caseloads, or case type during the course of the contract. As a result, these types of con- tracts appeal to funders. The regularity of payment appeals to some attorneys, too. These systems have been criticized by many observers, however, because of the pressure they create to resolve cases as early as possible. Under flat fee per case and hourly fee contracts, total costs to funders can vary over of the course of the contract, depending on variables outside the control of the contracting attorney and the funder. As a result, some funders have concluded that these types of contracts do not adequately the contract’s maximum cost.

Representation of Indigent Defendants,” Report for the American Association Standing Committee on and Indigent Defendants, Bar Information Program, Washington, DC: American Bar Association; National Association of Criminal Defense , 1997, Low-Bid Criminal Defense Contracting: Justice in Retreat, Washington, DC.

4 History of Indigent Defense Contracting in the United States

second concern is that the private the complexity of each case; and it bar no longer will play a role in failed to take into account the indigent defense. Contract pro- competency of the attorney. grams that replace appointed counsel systems generally require In another important case, far fewer private attorneys. With People v. Barboza, the California fewer private bar participants, Supreme Court, in 1981, found critics caution, one of the sixth that a contract for provision of amendment’s most important allies defense services between the will possibly vanish. county of Madera and an attorney was invalid because it created Judicial Responses to financial disincentives for the attor- ney to state a conflict of interest. Contract Systems The case arose from an Legal challenges to contract sys- with a deadly weapon conviction tems have provided important with multiple defendants in which insights into how they developed. the contract attorney represented In State v. Smith, the Arizona both defendants. Under the con- Supreme Court, in 1984, struck tract, the Madera County public down Mohave County’s contract defender was paid $104,000 per defense system, which for several year. From this total, $15,000 was years solicited sealed bids from pri- deducted and held in a reserve vate bar members. The court’s account to be drawn against by opinion established a widely cited conflict counsel. Any deficiency in standard for assessing the constitu- the reserve account was paid by tionality of a low-bid contract system. deducting from the monthly pay- ment to the public defender. Any The decision cites the National amount left in the account at the Legal Aid & Defender Association’s end of the year was paid to the (NLADA’s) Guidelines for Negoti- public defender. The California ating and Awarding Indigent De- Supreme Court held that this type fense Contracts and the American of contract created an “inherent Bar Association’s (ABA’s) Stan- and irreconcilable” financial disin- dards for Criminal Justice and con- centive for the public defender to cludes that Mohave County’s declare a conflict. system did not conform to those standards in four areas. The sys- Some funding authorities have tem did not take into account the switched to contracting systems in time the attorney was expected to response to legal challenges to spend representing his or her share inadequate compensation to court- of indigent defendants; it did not appointed counsel. In recent years, provide support for costs such as extensive litigation in state investigators, , and law has challenged the compensation clerks; it failed to take into account rates for private court-appointed

BUREAU OF JUSTICE ASSISTANCE 5 CONTRACTING FOR INDIGENT DEFENSE SERVICES

counsel in criminal cases. In 1992, hour worked, but they still do not compensation rates as low as $10 receive additional compensation an hour for out-of-court work and beyond the $1,000 “profit.” $15 an hour for in-court work were overturned by the South Carolina In the wake of Wilson, contract Supreme Court in Bailey v. State of programs mushroomed throughout South Carolina. Mississippi, where counties are responsible for funding indigent challenging the low defense representation. Fearing rates paid to assigned counsel who unforeseen increases in their indi- represent indigent defendants led gent defense expenses, many to an expansion of low-cost con- counties replaced assigned counsel tracts in at least two states. In programs with “part-time” public Mississippi and Oklahoma, suc- defender programs that in reality cessful challenges to the system were fixed-price contracts. The for paying assigned counsel led majority of counties in Mississippi defense attorneys to believe they now contract competitively with would be better compensated for one or more attorneys to do all of their work. Instead, contracts the county’s indigent defense work replaced many case-by-case for a fixed annual amount. systems, nullifying the impact of the court decisions. The situation in Oklahoma is similar. In 1990, the Oklahoma In 1990, the Mississippi Supreme Supreme Court found in State v. Court held in Wilson v. State that Lynch that the compensation then the section of the Mississippi Code in effect for court-appointed coun- that set $1,000 as the maximum sel at the trial level constituted an payment for attorneys representing illegal taking of of private indigent defendants in circuit court court-appointed attorneys under was being administered unconstitu- the Oklahoma . The tionally. Without declaring the state ’s response was itself unconstitutional, the a sweeping overhaul of indigent court offered a new defense in Oklahoma, including the that allowed an attorney $1,000 creation of a new statewide agency in profit plus expenses and inter- for providing indigent defense preted hourly overhead as an actu- services, the Oklahoma Indigent al expense. The court assigned Defense System (OIDS). The legis- $25 as a rebuttable hourly over- lature gave OIDS and its board of head rate. As a result, court- directors responsibility for providing appointed counsel in Mississippi representation at trial to indigent are reimbursed for the “actual defendants in noncapital cases in expense” of overhead for every 75 of the state’s 77 counties. (The

6 History of Indigent Defense Contracting in the United States state’s two largest counties were Legislatures and Contract permitted to retain control of their Systems local public defender programs.) Despite these court decisions, Prior to Lynch, the state was state legislatures, to contain gov- ranked one of the worst in level ernment spending, increasingly of funding for indigent defense. seek to require contracting and Immediately after Lynch, it seemed bidding as one component of pro- that substantially improved trial viding indigent defense services. representation for indigent defen- One trend emerging from state leg- dants could become a reality in islative sessions has been to Oklahoma. But in May 1992, require state public defender agen- largely due to budget restraints, cies to administer contract pro- the OIDS board adopted a contract grams that handle cases in which system as the primary method for the public defender declares a con- providing noncapital trial counsel flict of interest. in the 75 counties. Each year, attorneys submit bids to the board For example, in 1995, to reduce of directors, which, until 1995, was spending, the Wisconsin legislature directed by statute to accept the required the State Public Defender “lowest and best bid or bids.” In (SPD) to use fixed-fee contracts to 1995, the word “lowest” was handle conflict of interest cases removed from the statute after law- rather than rely solely on private suits were filed by disgruntled bid- court-appointed attorneys. SPD ders whose bids were rejected even agreed to use contracts for up to though they were the lowest ones. one-third of its conflict case misde- meanors annually and established Oklahoma’s contract system pre- six categories for determining sents an annual administrative night- awards: (1) applicant’s qualifica- mare for the board during the tions and experience, (2) appli- process. For fiscal year cant’s ethical track record and 2000, the average cost per case for reputation, (3) proposed cost per noncapital, trial contract cases is case, (4) applicant’s ability to han- $183, with some counties having an dle cases, (5) applicant’s financial average cost per case as low as $99. stability, and (6) adequacy of the applicant’s facilities.4

4 For a description of the SPD contract system, see Hardy, Kelly A., 1997, “Contracting for Indigent Defense: Providing Another Forum for Skeptics to Question Attorney’s Ethics,” Marquette Law Review 80: 1053.

BUREAU OF JUSTICE ASSISTANCE 7 CONTRACTING FOR INDIGENT DEFENSE SERVICES

The New York City The RFP set out standards for Experience the provision of services, carefully tracking the ABA Standards and In 1965, the city of New York NLADA Guidelines (see appendix). established the New York Legal The RFP did not establish a low bid Aid Society (LAS) as the primary as the main selection factor, but defender of indigent people instead used a weighting scheme brought to court in New York City. that took into account the following By 1995, LAS’s Criminal Defense factors: Division and Criminal Appeals Bureau were handling nearly • Experience in handling criminal 250,000 cases a year. That year, to cases. secure an “alternative to the pri- mary defender,” the city issued a • Ability to adhere to caseload request for proposals (RFP) from standards. nonprofit and for-profit entities to • Financial and provide representation to indigent capability and qualifications. criminal defendants in trial and appellate cases that otherwise • Range of services. would have been assigned to LAS. The bidding process did not affect • Adequacy, appropriateness, and representation by assigned counsel cost-effectiveness of providing in conflict of interest cases or rep- staffing, staff supervision and resentation in homicide cases. training, and library facilities.

The city’s RFP sought to shift 20 • Understanding of what is percent of LAS’s criminal required to provide indigent defense work to new contract defense. defender organizations by bidding out more than 50,000 trial cases: • to deal with bilingual 10,000 cases in Brooklyn, the clients. Bronx, and Queens; 12,500 cases • Proximity of office location. in Manhattan; all of the LAS’s cases in Staten Island; and 400 • Case management and tracking appeals citywide. LAS, excluded system. from bidding, continued to operate under a fixed budget with no case- In fall 1995, the Appellate load limits. Each trial contractor Division of the Supreme Court, was expected to carry between First Department, at the request of 10,000 and 12,500 nonconflict, the New York County Lawyers’ nonhomicide cases per year under Association, the Association of the a 2-year contract. Bar of the City of New York, and

8 History of Indigent Defense Contracting in the United States

the Bronx Bar Association, enact- agreement with the city to stop ed, with the agreement of the city, covering one of the arraignment rules by which the Indigent De- shifts. fense Organization Oversight Committee was established.5 The In the report for 1998, the com- Oversight Committee was expect- mittee noted that in its report for ed to conduct an annual evaluation 1997 it found that “the unfortunate of LAS and of each indigent de- result of creating [the contract fense contractor. Although it had organizations] has been to further no staff of its own, the committee overburden LAS and seriously was considered by the city to be an undercut the efforts by LAS staff to important component in the evalu- provide quality representation to its ation of organizations that bid to clients.” Finding no change in that provide indigent defense services. situation, the committee repeated a recommendation from its 1997 In 1999, the Oversight Commit- report: “It is imperative that the tee issued its third evaluation of the contractual arrangements with the system.6 The committee found that city provide LAS with the same in many important respects, the kinds of limits on its caseload that contracting system had not dimin- [the contract organizations] enjoy ished the quality of representation. or a formula for additional funding The committee found that the at a level consistent with the other city’s requirement that indigent defense organizations if caseload defense contractors hire only expe- levels are exceeded.”7 rienced staff resulted in a high quality of services, as did the con- According to Robin Steinberg, tractors’ ability to limit their own Director of The Bronx caseloads. For instance, when The Defenders, the real value of a Bronx Defenders projected that it mixed system comes from having would reach its maximum contract small offices that are able to inno- number of cases (10,000) for the vate and test new models of indi- year too quickly, it reached an gent defense. “Small defender

5 Members of the Oversight Committee are nominated by the presidents of the New York County Lawyers’ Association, the Association of the Bar of the City of New York, the Bronx Bar Association, and of the Appellate Division of the Supreme Court, First Department. Each member serves a 3-year term, renewable upon renomination by the justices of the Appellate Division. The chair and vice chair of the committee are designated by the presiding justice from among the nominees. 6 First Department Indigent Defense Organization Oversight Committee,1999, First Department Indigent Defense Organization Oversight Committee Report for 1998, New York, NY. 7 Ibid.

BUREAU OF JUSTICE ASSISTANCE 9 CONTRACTING FOR INDIGENT DEFENSE SERVICES

organizations,” she said, “can used in one county with an ordered develop methods and strategies assigned counsel system used in a and the institutional culture to sup- second county with similar geo- port such innovations.” graphics. The researchers did not identify the counties studied. In the Empirical Studies of contract system they examined, Contracting Systems one firm had held the contract for 8 years. A second firm that sub- Very few empirical studies have mitted a bid to do the work for less examined the quality of represen- money was awarded the contract. tation and cost-effectiveness of There was no or bid- systems that contract for indigent ding process for either contract; defense services. The first such both were awarded after the law study, an assessment of Clark firms approached the county with a County, Washington, released in proposal. The study found that the 1982, found that costs rose when contract system cost less than the the county moved from a public assigned counsel system for defender office to a contract sys- nontrial cases because the contract tem. In part, the increase resulted attorneys spent less time on each from an unforeseen rise in the case and made fewer appearances. number of felony cases. The study The researchers questioned the also noted, however, a decline in quality of representation provided the quality of representation, under the contracting system and including a decline in the number concluded that over time the costs of cases taken to , an for contracting would exceed increase in guilty pleas at first the costs for assigned counsel appearance hearings, a decline in systems.9 the filing of motions to suppress, a decline in requests for expert assis- In 1993, Worden compared costs tance, and an increase in com- associated with different indigent plaints received by the court from defense systems in Michigan, but defendants.8 did not compare quality. In de- scribing why her study could not A second study, conducted by fully address issues of quality, Houlden and Balkin in 1985, com- Worden noted: “Lawyers’ pared the contract counsel system

8 Lefstein, Norman, 1982, Criminal Defense Services for the Poor: Methods and Programs for Providing Legal Representation and the Need for Adequate Financing, New York, NY: American Bar Association. 9 Houlden, Pauline, and Steven Balkin, 1985, “Quality and Cost Comparisons of Private Bar Indigent Defense Systems: Contract vs. Ordered Assigned Counsel,” Journal of and Criminology 76: 176.

10 History of Indigent Defense Contracting in the United States

performance is not evaluated easi- increased costs. (On average, ly, in part because standards for Worden found that competitive-bid effective counsel are vague and in contracts cost $244 per case com- part because thorough and sys- pared with $689 per case for no- tematic evaluation of performance bid contracts.) Worden also in individual cases would conflict compared public defender costs to with professional ethics regarding assigned counsel costs using the client confidentiality.” Worden combined average of no-bid and found that contracting with com- competitive-bid contracts and petitive bidding saved money, found that contracts were slightly whereas contracting without com- more expensive.10 petitive bidding significantly

10 Worden, Alissa Pollitz, 1993, “Counsel for the Poor: An Evaluation of Contracting for Indigent Criminal Defense,” Justice Quarterly 10(4): 613.

BUREAU OF JUSTICE ASSISTANCE 11 III. Characteristics of Deficient and Effective Contract Systems

Scholars and practitioners who • Result in case dumping that have studied indigent defense con- shifts cost burdens back to the tract systems agree that fairly spe- institutional defender. cific features differentiate effective contract systems that are constitu- • Do not provide for independent tionally and ethically sound from monitoring or evaluation of per- those that fail to deliver acceptable formance outside of costs per standards of representation. case. • Do not include a case-tracking Characteristics of Deficient or case management system Contract Systems and do not incorporate a strate- The most seriously criticized gy for case weighting. contract systems: In Jones County, Mississippi, the • Place cost containment before contract system was so poorly quality. constructed that the contractors themselves filed suit, contending • Create incentives to plead cases that they should be found to be out early rather than go to trial. ineffective in all cases as a result of the conditions under which the • Result in lawyers with fewer contract required them to provide qualifications and less training services. In 1992, Jones County doing a greater percentage of provided $32,000 for indigent rep- the work. resentation in criminal cases. Two • Offer limited training, supervi- attorneys were hired at $13,000 sion, or continuing education to each, leaving the attorneys $6,000 new attorneys or managers. for expenses. When they agreed to the contract, neither attorney was • Reward low bids rather than aware of a backlog of 400 pending realistic bids. felony cases that the previous con- tractor had been paid to represent. • Provide unrealistic caseload limits or no limits at all. The two contractors brought suit to compel the county to limit their • Do not provide support staff or caseload and increase funding. investigative or expert services. While the case was pending in the

BUREAU OF JUSTICE ASSISTANCE 13 CONTRACTING FOR INDIGENT DEFENSE SERVICES

appellate courts, the Jones County negotiate either continued payment Board of Supervisors reached an or transfer of the case, but such agreement with the contractors by actions are discretionary. increasing the amount of the con- tract to $118,000. Low-bid contracts often require participating attorneys to accept an North Dakota solved a similar unlimited number of cases during a problem in a different way. The contract period with no mechanism state provides indigent defense ser- for relief. In Yuma County, Arizona, vices through contracts in each of for instance, in fall 1995, a con- North Dakota’s seven judicial dis- tract attorney who believed that tricts. The contracts are for flat her caseload exceeded her ability fees without caseload caps. Rather to provide competent representa- than award contracts to the lowest tion to all her clients asked the bidders, establish the superior court to withhold further amount of the contract and issue appointments under her contract notice that it is available. Attorneys until she was able to decrease her may then apply, and the presiding workload. She cited the presump- judge selects from the applicants. tive caseload caps created under Arizona Supreme Court . This practice calls attention to The superior court rejected her the issue of independence in claim and continued to assign awarding contracts. Both the ABA cases to her. The case was then Standards and NLADA Guidelines heard by the Arizona Supreme recommend that the professional Court, which sent it back to the independence of indigent defense superior court for fact-finding. systems, including contractors, be Before a hearing could be held, protected by creating an indepen- however, the Yuma County Board dent organization such as a board of Supervisors decided to establish of or board to a public defender office. administer and award contracts. As with any forecast or projec- In the North Dakota system, if an tion, there is uncertainty in predict- attorney receives a particularly dif- ing the number and type of cases ficult case toward the end of the that will be filed in a jurisdiction in contract period, he or she is any given year. If the number of expected to carry the case to com- cases filed is higher than projected, pletion. In some cases, that has it may result in poor representation meant continuing to work without and jeopardize the constitutional compensation after the contract rights of indigent defendants. ends. Recent changes to the sys- Further, the situation poses an eth- tem now allow attorneys to ical dilemma for the contracting approach the presiding judge to attorney, who must determine

14 Characteristics of Deficient and Effective Contract Systems

whether it is possible to fully and county. A firm with contracts with ethically for each of his five other counties in California bid or her clients. $1.1 million for the contract, roughly $700,000 less than CDA’s Contractors may also find them- final bid. Based on the bid price selves earning exceptionally low alone, a three-judge subcommittee fees as a result of fixed-fee con- recommended the firm to the other tracts. Recently, a contractor work- superior court judges. ing in Montana accummulated an excessive caseload of 100 The full review of the bid, howev- and 250 misdemeanors. The tacit er, also considered quality issues. understanding when he agreed to In reviewing the provision of ser- accept the contract was that he vices in other counties, it was would represent up to 60 felony learned that the out-of-county firm cases and up to 100 misdemeanor saved money by using unlicensed cases per year. One felony case investigators, limiting support staff, ended in a 5-week trial, leaving him and using very inexperienced little time to attend to the other attorneys. A judge in another cases during that period. By the county had complained that this end of the year, based on the con- firm used inexperienced lawyers tract amount, he was earning who were often unavailable in approximately $18 an hour, with no court, did not maintain full-time compensation for overhead. offices, and seemed more interest- ed in obtaining other contracts With these experiences in mind, than in providing services. the Board of Supervisors in Ventura County, California, recently decid- In the end, the Ventura County ed to continue its contract with Superior Court judges and the Conflict Defense Associates Ventura County Board of Super- (CDA), a group of attorneys that visors determined that quality of has provided indigent defense ser- services had to be considered vices in the county for the past 18 along with cost. This meant evalu- years for cases in which the prima- ating more than the per-case costs ry public defender office has a of the proposed bids. Both the conflict. In 1999, in response to 4 judges and the supervisors deter- consecutive years of cost overruns, mined that experience and quality the board opened bidding on the of services supported continuing contract for the first time since the CDA contract, which they did CDA began contracting with the in July 1999.11

11 In 1992, Ventura County’s auditor-controller issued a report that found the county could save up to $435,000 a year by establishing a second public defender’s office rather than continuing to contract for conflict services. That option was not considered during the most recent to cut costs.

BUREAU OF JUSTICE ASSISTANCE 15 CONTRACTING FOR INDIGENT DEFENSE SERVICES

Characteristics of Effective In Oregon, 92 percent of the Contract Systems trial-level state court indigent defense caseload is covered by Contract systems viewed by crit- contracts awarded by SCA in ics as the most effective share fea- response to an RFP. In 1999, there tures that allow administrators to were 85 contracts for services monitor and evaluate costs while (including 5 contracts with non- providing quality representation. attorneys) in 34 of Oregon’s 36 These features include: counties. Four basic types of con- tracts were used: contracts with • Minimum attorney nonprofit public defender organiza- qualifications. tions with salaried staff; contracts • Provisions for support costs with law firm consortia in which such as paralegals, investiga- groups of attorneys or law firms tors, and social workers. joined together to provide defense services; in which • Independent oversight and individual law firms agreed to have monitoring. their attorneys provide indigent defense services while continuing • Workload caps. to serve private clients; and con- tracts with individual attorneys. • Limitations on the outside the contract. Ann Christian, Executive Director of the Indigent Defense • Provisions for completing cases Services Division (IDSD), believes if the contract is completed but that a strength of Oregon’s system breached or not renewed. is that it operates statewide. • Caseload caps. “Because we have been able to create a statewide system that • Case management and tracking fixes costs within predictable requirements. ranges,” she said, “other members of the criminal justice system, such • Guidelines on client contact and as the judges, are able to focus notification of appointment. more attention on issues of quality of indigent defense representation. • A mechanism for oversight and The stability and longevity of our evaluation. system allows us to accurately One such model operates assess expected caseloads and statewide in Oregon. It is adminis- costs.” tered by the Indigent Defense Oregon has developed a detailed Services Division of the State RFP to solicit bids from potential Court Administrator’s Office contractors. The RFP is based on a (SCA). model contract that establishes

16 Characteristics of Deficient and Effective Contract Systems

expectations for caseloads, costs, programs. In part, this results from areas of coverage (including geo- the costs of administering the con- graphic limits and types of cases), tracts, from the costs of oversee- level of services, staffing plans, ing and evaluating multiple and the applicants’ experience and providers, and from the costs of qualifications. The review process additional work necessitated when includes consultation with local contractors lack the institutional courts and judicial staff and an knowledge that accumulates with- assessment that the proposal is in a staff-based organization. consistent with the needs of the A study of San Diego County, county, region, and state. California, for example, found that a contract system would cost Oregon has also established a $8 million more per year than process by which extraordinary a staff-based defender agency. expenses related to cases are paid through a mechanism outside the The initial savings a jurisdiction standard contract. In most death can achieve by switching from an penalty and serious mandatory assigned counsel system to a con- minimum sentence cases, funds for tract system can vanish in subse- experts, investigators, and other quent years if, as experience has expenses not specified in the con- shown, experienced attorneys drop tract are submitted to IDSD for out of the bidding process as the review. In less serious cases, such contracts prove to be more time funding requests are reviewed judi- consuming than anticipated. Many cially. In Oregon, unlike most other contracts do not even aver- systems, these expenses do not age hourly overhead. Jurisdictions come from the money set aside for are then faced with a dilemma: Do the contractor’s basic operations. they accept the attrition of experi- enced attorneys and contract with In New Mexico, the standard inexperienced attorneys, risking contract specifies that each con- jail, court delays, and ineffective- tract attorney will independently ness claims, or do they increase investigate each case, seek the the contract payments to maintain assistance of a social worker for system efficiency and stability? considering a sentencing alterna- Jurisdictions with particularly tive, and seek the assistance of an strong bar associations often find when such assis- that they must keep increasing tance is likely to have a significant contract rates to continue attract- impact on the outcome of the ing competent attorneys. case. King County, Washington, uses a Typically, good contract systems contracting system to provide indi- cost more per case than do public gent defense services. Like the defender or assigned counsel examples discussed above, the

BUREAU OF JUSTICE ASSISTANCE 17 CONTRACTING FOR INDIGENT DEFENSE SERVICES

contract establishes standards for four contractors, Seattle defenders the quality of representation and worked for years to persuade local caseload limits. A central adminis- government that there should be trative agency, the Office of Public maximum caseloads for defense Defender (OPD), currently con- attorneys. With the help of a bar tracts with four nonprofit defender association task force called to organizations to provide primary respond to a report alleging representation. Each contractor “supermarket justice” in the muni- carries a mixed caseload of felony cipal courts, the defense communi- cases, juvenile cases, and other ty in King County developed types of cases. When these organi- caseload standards that led to the zations are unavailable because city and the county agreeing that of conflicts, the county turns to there should be reasonable case- assigned private counsel. load limits. “Caseload limits,” Boruchowitz said, “have been the According to Bob Boruchowitz, key to protecting our ability to pro- Director of the Defenders Associa- vide effective representation and tion, the largest and oldest of the obtaining the resources we need.”

18 IV. Conclusion: Lessons Learned

The experiences of indigent systemic changes, to facilitate defense systems discussed in this innovation, to manage caseloads special report support the conclu- and track cases, and to develop sion that contract systems can institutional knowledge across deliver quality indigent defense agencies. services when appropriate safe- guards are developed and im- Lesson 1: Certain Types of plemented. However, contract Contract Models Carry systems that do not jeopardize the quality of representation provided More Risk Than Others to indigent clients often do not pro- As the examples in this report duce the cost savings sought by illustrate, certain types of contract county, regional, and state funders. models, often established in the hopes of saving money, pose sig- In a jurisdiction with a primary nificant threats to the quality of defender supported by contractors representation. Two systems in doing conflict, overload, or a per- particular—those that solicit bids centage of the primary work, the solely on the basis of cost and politics of establishing contracting fixed-fee systems, without caseload offices is very important. One les- caps but with financial disincen- son jurisdictions have learned is tives to investigate and litigate that the primary defender as well cases—are potentially devastating as the contractors must be in- to the quality of representation. volved in a collaborative process. When parties are pitted against NLADA has developed a model each other, either in low-bid set- contract that incorporates the tings or for political reasons, the NLADA and ABA guidelines for quality of representation a system contracting. Created to be a tem- can maintain is harmed. Collabora- plate for jurisdictions using or con- tion is needed to establish and sidering contracting, NLADA’s maintain training and oversight, to model balances the interests of 12 approach funders, to consider quality and cost.

12 The model contract is available from NLADA, 1625 K Street NW., Suite 800, Washington, DC 20006–1604; Phone: 202–872–1031; World Wide Web: www.nlada.org.

BUREAU OF JUSTICE ASSISTANCE 19 CONTRACTING FOR INDIGENT DEFENSE SERVICES

Lesson 2: Requests for that create enforceable guidelines Proposals Should Establish and standards that track those Guidelines, Qualifications, established by ABA and NLADA. and Standards Lesson 4: Monitoring and As shown in the New York and Evaluation Are Important Oregon models, one way to bolster The area of contracting systems the quality of representation in a that has been least successfully contract system is to create a implemented is monitoring and request for proposals that estab- evaluation. Although many of the lishes a fair application and award systems that use contracting process and weighs a variety of require some form of evaluation, factors that measure quality as few systems have managed to well as cost. RFPs should establish implement a coherent and indepen- guidelines, qualifications, and stan- dent review process that examines dards for each aspect of the repre- compliance with standards as well sentation of indigents and a as individual attorney performance. mechanism for the evaluation of contractors. For instance, although New Mexico has established high stan- Lesson 3: National, dards and expectations for the per- Enforceable Standards formance of its contract attorneys, Are Needed the state’s Public Defender Department has no mechanism The ABA Standards and NLADA with which to assess compliance Guidelines are helpful guides for with the standards, especially in ensuring quality representation the state’s rural counties. New under contract systems. However, Mexico is not alone in this lack of more is needed at the level of monitoring. In fact, few jurisdic- enforcement and discipline. One tions have incorporated monitoring possible solution is the creation of and evaluation into their contract national standards enforced by a systems. national oversight committee that would monitor and evaluate the New York City’s Oversight performance of indigent defense Committee is the nation’s best systems throughout the United example of such an evaluation sys- States. tem. It currently operates on a vol- unteer basis without full-time staff. A second solution is the adop- In a 1998 memorandum, the com- tion by states of caseload caps, mittee noted that it needs staff and such as Arizona’s statewide case- institutional stability to conduct load standard. These caps could “continuous and consistent be enforced by state court rules

20 Conclusion: Lessons Learned

monitoring of the performance of would have the advantages of the organizations and the lawyers greater accuracy, continuous moni- . . . assigned to represent indigent toring, uniformity and stability.”13 parties in criminal proceedings. Every jurisdiction would benefit A permanent monitoring structure from such oversight and monitoring.

13 First Department Indigent Defense Organization Oversight Committee, Proposal for Staffing of the First Department Indigent Defense Organization Oversight Committee, 1999, First Department Indigent Defense Organization Oversight Committee Report for 1998, New York, NY.

BUREAU OF JUSTICE ASSISTANCE 21 V. Appendix: National Standards

Both the American Bar Associa- maximums, staffing ratios, criminal tion and the National Legal Aid & law practice expertise, and train- Defenders Association have pro- ing, supervision and compensation mulgated standards for contract guidelines.” systems. Anyone considering establishing or interested in evalu- Additionally, in 1998, the ABA ating a contract system should House of Delegates adopted a res- review these materials.14 ABA’s olution calling upon each state, ter- Standards for Criminal Justice: ritory, and local jurisdiction to Providing Defense Services, adopt minimum standards for the Standard 5–1.2(b), states “Every creation and operation of its indi- [indigent defense] system should gent defense delivery system, include the active and substantial including contract systems. participation of the private bar. The ABA Standards and the That participation should be NLADA Guidelines contain the through a coordinated assigned- following common standards for counsel system and may also contracting: include contracts for services.” • Contracts should ensure quality In February 1985, the ABA of representation (ABA House of Delegates adopted the Standard 5–3.1; NLADA following language concerning Guideline III–8). One recom- contracting: “The American Bar mended way of ensuring quality Association opposes the awarding of representation is to refuse to of public defense contracts on the award a contract primarily on basis of cost alone, or through the basis of cost (ABA Standard competitive bidding without refer- 5–3.1; NLADA Guideline IV–3). ence to quality of representation. Be it further resolved that in order • The professional independence to achieve constitutionally effective of all indigent defense delivery representation, the awarding of systems, including contractor public defense contracts should systems, should be maintained additionally be based on qualitative by creating an independent criteria such as attorney caseload organization such as a board

14 See the American Bar Association,1990, Standards for Criminal Justice: Providing Defense Services, Chapter 5, Washington, DC; and the National Legal Aid & Defender Association, 1984, Guidelines for Negotiating and Awarding Indigent Defense Contracts, Washington, DC.

BUREAU OF JUSTICE ASSISTANCE 23 CONTRACTING FOR INDIGENT DEFENSE SERVICES

of trustees or policy board to representation under the administer and award contracts contract and prohibition of sub- (ABA Standard 5–3.2(b); stitution of counsel without prior NLADA Guideline III–1). approval (ABA Standard 5–5.3(iv)). • Contracts should not contain provisions that create conflicts • Contracts should include allow- of interest between the contrac- able workloads for individual tor and clients (ABA Standard attorneys and measures to 5–3.2(c); NLADA Guideline address excessive workload III–13). Among the potential (ABA Standard 5–3.3(b)(v); conflicts addressed are forcing NLADA Guidelines III–6 and contractors to choose either III–12). paying for investigation, expert, transcription, and other services • Contracts should include provi- or forgoing these services by sions for supervision, evalua- not including them in the con- tion, training, and professional tract; failing to ensure that the development (ABA Standard contract’s mechanism for 5–3.3(b)(xi); NLADA Guidelines addressing conflict cases does III–6 and III–7). not act as a financial disincen- • Contracts should include the tive for withdrawing; and induc- grounds for termination of a ing an attorney to waive a contract (ABA Standard 5–3.3 client’s rights for reasons not (b)(xv); NLADA Guidelines III–4 related to the client’s best inter- and III–5). Oregon’s contract, for ests (ABA Standard 5–3.3(b) example, allows termination if (vii)(x); NLADA Guideline the contractor misuses funds, III–13). habitually disregards court pro- • To avoid situations in which cedures for providing services, lawyers or law firms are award- demonstrates an inability to ade- ed contracts and delegate quately serve the interests of the responsibility to inexperienced clients, or willfully or habitually associates, contracts should fails to abide by minimum stan- include identification of attor- dards of professional ethics or neys who will perform legal performance.

24 VI. For More Information

To receive more information U.S. Department of Justice about indigent defense contract Response Center systems, contact the following 1–800–421–6770 or 202–307–1480 organization: Response Center staff are avail- able Monday through Friday, 9 The Spangenberg Group a.m. to 5 p.m. eastern time. 1001 Watertown Street West Newton, MA 02465 To learn more about the national Phone: 617–969–3820 standards for indigent defense con- Fax: 617–965–3966 tracts discussed in this report, con- E-mail: [email protected] tact the following organizations:

Bureau of Justice Assistance American Bar Association Clearinghouse Criminal Justice Section P.O. Box 6000 1800 M Street NW. Rockville, MD 20849–6000 Washington, DC 20036 1–800–688–4252 Phone: 202–331–2260 World Wide Web: www.ncjrs.org World Wide Web: www.abanet.org

Clearinghouse staff are available National Legal Aid & Defender Monday through Friday, 8:30 a.m. Association to 7 p.m. eastern time. Ask to be 1625 K Street NW., Suite 800 placed on the BJA mailing list. Washington, DC 20006–1604 Phone: 202–452–0620 World Wide Web: www.nlada.org

BUREAU OF JUSTICE ASSISTANCE 25 Bureau of Justice Assistance Information

General Information Callers may contact the U.S. Department of Justice Response Center for general information or specif- ic needs, such as assistance in submitting grant applications and information on training. To contact the Response Center, call 1–800–421–6770 or write to 1100 Vermont Avenue NW., Washington, DC 20005.

Indepth Information

For more indepth information about BJA, its programs, and its funding opportunities, requesters can call the BJA Clearinghouse. The BJA Clearinghouse, a component of the National Criminal Justice Reference Service (NCJRS), shares BJA program information with state and local agencies and com- munity groups across the country. Information specialists are available to provide reference and refer- ral services, publication distribution, participation and support for conferences, and other networking and outreach activities. The Clearinghouse can be reached by

❒ Mail ❒ BJA Home Page P.O. Box 6000 www.ojp.usdoj.gov/BJA Rockville, MD 20849–6000 ❒ NCJRS World Wide Web ❒ Visit www.ncjrs.org 2277 Research Boulevard Rockville, MD 20850 ❒ E-mail [email protected] ❒ Telephone 1–800–688–4252 ❒ JUSTINFO Newsletter Monday through Friday E-mail to [email protected] 8:30 a.m. to 7 p.m. Leave the subject line blank eastern time In the body of the message, type: subscribe justinfo ❒ Fax [your name] 301–519–5212

❒ Fax on Demand 1–800–688–4252

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