Improving Criminal Justice Systems Through Expanded Strategies and Innovative Collaborations

Report of the 1999 National Symposium on Indigent Defense, Published March 2000

Executive Summary

The obligation of the States to provide legal representation to people accused of crime who are too poor to retain their own counsel was established by the U.S. Supreme Court as a matter of Federal constitutional law in 1963, in the case of Gideon v. Wainwright. The attorneys general of 22 States joined in urging the Court to do so. In the intervening three and a half decades, States have responded to Gideon in various ways. Some have shouldered the responsibility themselves, establishing and funding statewide agencies to provide indigent defense. In others, counties bear the burden. Three service-delivery models have evolved: governmental public defender agencies, bulk contracts with private lawyers, and case-by-case appointments. National standards have been promulgated and have been implemented by States and localities in different ways, covering issues such as maximum annual caseloads, staffing ratios, resource parity with prosecution and courts, training, attorney qualifications and performance, and defender independence from the political forces and judicial branches.

But the extent to which States and localities are succeeding in fulfilling the promise of Gideon varies widely. Overall, despite progress in many jurisdictions, indigent defense in the United States today is in a chronic state of crisis. Standards are frequently not implemented, contracts are often awarded to the lowest bidder without regard to the scope or quality of services, organizational structures are weak, workloads are high, and funding has not kept pace with other components of the criminal justice system. The effects can be severe, including legal representation of such low quality to amount to no representation at all, delays, overturned convictions, and convictions of the innocent. Ultimately, as Attorney General Janet Reno states, the lack of competent, vigorous legal representation for indigent defendants calls into question the legitimacy of criminal convictions and the integrity of the criminal justice system as a whole.

In 1997, the Attorney General and officials of the Office of Justice Programs and the Bureau of Justice Assistance convened a focus group of 35 leaders of the indigent defense community and identified 6 areas in which the U.S. Department of Justice (DOJ) could play an effective role in promoting strong and stable indigent defense systems.

· Using the DOJ's leadership role to call attention to the importance of quality indigent defense services. · Promoting independence in indigent defense structures. · Allocating resources equitably among indigent defense and other criminal justice system components. · Focusing on these challenges in the juvenile justice system. · Promoting standards for indigent defense programs. · Building a capacity for computer technology in indigent defense.

In the DOJ's continuing dialogue with the indigent defense community and examination of potential reforms, attention was also focused on the importance of collaborations between indigent defense and other justice system agencies in planning, managing, and budgeting for the system as a whole. The National Symposium on Indigent Defense was organized around these six issues and the goal of collaboration. Themes emerging from the symposium include the following:

Forging Consensus: Indigent defense is an integral, interdependent part of the criminal justice system. Advocacy strategies for indigent defense must be addressed systemically, in coordination and balance with the rest of the system. The symposium's multidisciplinary attendance-including defenders, prosecutors, judges, police, legislators, county officials, and bar representatives-similarly was designed to foster dialogue, a recognition of symbiosis, and a collaborative search for solutions.

Independence: The ethical imperative of providing quality representation to clients should not be compromised by outside interference or political attacks. Indigent defenders should be subject to judicial supervision only to the same extent as lawyers in private practice. The primary means of ensuring defender independence is to provide for oversight by an independent board or commission, rather than directly by judicial, legislative, or executive agencies or officials. Statewide Structure: The trend supported by national standards has been toward statewide indigent defense structures. Organizing defense services through a centrally administered program promotes quality and uniformity of defense services, as well as cost-efficiencies, cohesive planning, and accountability. Statewide organization commonly results from an imminent indigent defense funding crisis, which spurs collaborative planning, study, and action by bar associations, funding agencies, and the courts.

Equitable Allocation of Resources: Salary parity between prosecutors and defenders is a central component of all national standards and is an important means of reducing staff turnover and avoiding related recruitment/training costs and disruptions to the office and case processing. The concept of parity encompasses all resource allocations, including staffing and workloads, support staff, investigative and expert services, and technology, as well as access to Federal grant programs and student loan forgiveness options.

Juvenile Justice: Comprehensive, effective juvenile interventions can help avert future criminality and the substantial costs of future encounters with the adult courts and correctional systems. Holistic juvenile team defense includes social workers and mental health professionals, as well as attorneys, and involves the parents of juvenile clients.

Indigent Defense Standards: Standards are the most effective means of ensuring uniform quality of indigent defense services. States and localities have adopted standards in a variety of ways, including by court decision, statute, court rules, and incorporation into indigent defense services contracts; enforcement mechanisms include requiring local compliance as a condition of supplemental State funding. Technology: Technology is increasingly critical to the fast, efficient, and cost-effective processing of cases. Technology integration and information sharing between indigent defense and other justice system agencies, as well as parity of technological resources, reduce redundancy, improve the efficiency of the entire system, and promote earlier disposition of cases and more appropriate, individualized, and effective sanctioning of convicted offenders.

Successful Collaborations: Indigent defense as a full partner in the criminal justice system already exists in a number of areas. Criminal justice coordinating committees are a forum for collaborative justice system problem-solving, planning, and innovation and can address special areas such as drug treatment, domestic violence, docket management, and indigent defense funding. Juvenile justice collaborations with community-based services for offenders in the juvenile justice system can help avert recidivism. When juveniles are subject to adult prosecution, coordination among agencies such as courts, police, probation, mental health and family services, social services, and schools can reduce delays in case processing and ensure more accurate assessments of amenability to treatment in the juvenile system.

"Fill the Gap" collaborations among adjudication agencies (courts, prosecutors, defenders, and court administration) can help them obtain the funding necessary to keep up with the extra caseloads generated by major funding infusions for other components of the system, such as police and corrections.

Drug treatment courts are one of the most common type of adjudication partnership. These courts replace the defender's traditional adversarial role with a collaborative orientation toward the long-term interests of the client.

Joint weighted caseload studies are collaborations among courts, prosecutors, and public defenders on a shared methodology for projecting caseloads and resource needs, which can improve planning and budgeting for the entire system.

Juvenile defenders and dependency cases increase defender responsibility for noncriminal matters, such as representation of both children and parents in dependency, abuse, and neglect matters, and require new partnerships with other entities, including family courts, family law bar associations, government agencies, and planning bodies responsible for protecting juveniles.

Mental health courts, like drug treatment courts, are an example of an adjudication partnership of courts, prosecutors, defenders and treatment providers, emphasizing placement in community-based residential treatment facilities as an alternative to jail.

Early entry team defenses, like community policing and community courts, are community-based defender programs-storefront offices providing a broader range of representation than conventional programs-and are oriented toward early intervention and crime prevention.

The unifying themes of the symposium were 1) the necessity of maintaining core values, civility, respect, and trust, not only within indigent defense programs but in interactions with other components of the criminal justice system; 2) the challenge of reconciling adversarial defense skills with the imperative of collaboration in a complex, increasingly interconnected system; 3) the importance of increasing availability of affordable technology and interagency information sharing to make all agencies more efficient and effective; and 4) the movement toward holistic defense services focused less on isolated episodes of legal representation and more on recidivism prevention and long-term improvement of clients' lives.

The entire report of the 1999 Symposium, including 18 appendices, is available on the Justice Department's Web site, in both text and PDF formats, at www.ojp.usdoj.gov/indigentdefense/pubs.htm.