Published as an Introduction to
Compendium of Standards for Indigent Defense Systems: A
Resource Guide for Practitioners and Policymakers (Office of Justice
Programs/Bureau of Justice Assistance, U.S. Department of Justice, 2001).
The Ten Commandments of Public Defense Delivery SystemsBy James
R. Neuhard, Director, Michigan Appellate Defender Office and Scott
Wallace, Director, Defender Legal Services, National Legal Aid and
Defender Association
Poverty is not an excuse to provide less than competent representation.
Public defense delivery systems must efficiently and effectively
provide high-quality, zealous, conflict-free representation to those
charged with crimes who cannot afford to hire an attorney. To meet this
goal,(1)
Thou shalt...
- Assure that the public defense function, including the selection,
funding, and payment of appointed counsel, is independent. The indigent
defense function should be independent from political influence and
subject to judicial supervision only in the same manner and to the same
extent as retained counsel.(2) To safeguard independence, and to
promote efficiency and quality of services, a nonpartisan board should
oversee defender, assigned counsel, or contract systems.(3) Ensuring that the judiciary is
independent from undue political pressures is an important means of
furthering the independence of indigent defense.(4)
- Assure that where the caseload is sufficient, the public defense
delivery system consists of both a defender office(5) and the active participation of the
private bar. The private bar participation may include part-time
defenders, a controlled assigned counsel plan, or contracts for
services.(6) The appointment process should never be
ad hoc,(7) but should be according to a coordinated
plan(8) directed by a full-time administrator
who is an attorney familiar with the varied requirements of criminal
practice in the jurisdiction.(9) Since the responsibility to provide
defense services rests with the state to assure uniform quality
statewide, systems should be funded and organized at the state level.(10)
- Screen clients for eligibility, then assign and notify counsel of
their appointment within 24 hours. Counsel(11) should be furnished upon arrest,
detention, or request,(12)
- Provide counsel sufficient time and a confidential space to meet
with the client. Counsel should interview the client as soon as
practicable before the preliminary examination or the trial date.(14) Counsel should have confidential access
to the client for the full exchange of legal, procedural, and factual
information between counsel and client.(15) To ensure confidential communications,
private meeting space should be available in jails, prisons,
courthouses, and other places where defendants must confer with
counsel.(16)
- Assure that counsel's workload matches counsel's capacity. Counsel's
workload of both appointed and other work should never be so large as to
interfere with the rendering of quality representation or lead to the
breach of ethical obligations, and counsel is obligated to decline
appointments above such levels.(17) National caseload standards should in
no event be exceeded,(18) but the concept of workload (i.e.,
caseload adjusted by factors such as case complexity and an attorney's
nonrepresentational duties) is a more accurate measurement.(19)
- Assure that counsel's ability, training, and experience match the
complexity of the case. Counsel should never be assigned a case that
counsel lacks the experience or training to handle competently, and
counsel is obligated to refuse appointment if unable to provide zealous,
high-quality representation.(20)
- Assure that the same attorney continuously represents the client
until completion of the case. Often referred to as "vertical
representation," the same attorney should continuously represent the
client from initial assignment through the trial and sentencing.(21) On appeal, the attorney assigned for
the direct appeal should represent the client throughout the direct
appeal.
- Provide counsel with parity of resources with the prosecution and
include counsel as an equal partner in the justice system. There should
be parity of workload, salaries, and other resources (such as
technology, facilities, legal research, support staff, paralegals,
investigators, and access to forensic services and experts) between
prosecution and indigent defense.(22) Assigned counsel should be paid a
reasonable fee in addition to actual overhead and expenses.(23) Contracts with private attorneys
for public defense services should never be let primarily on the basis
of cost; they should specify performance requirements and the
anticipated workload, should provide an overflow or funding mechanism
for excess, unusual, or complex cases,(24) and should separately fund expert,
investigative, and other litigation support services.(25) No part of the justice system should be
expanded or the workload increased without consideration of the impact
that expansion will have on the adversarial balance and on the other
components of the justice system. Indigent defense should participate as
an equal partner in improving the justice system.(26)
- Provide and require counsel to attend continuing legal education.
Counsel and staff providing defense services should have systematic and
comprehensive training appropriate to their areas of practice and at
least equal to that received by prosecutors.(27)
- Supervise and systematically review counsel for quality and
efficiency according to nationally and locally adopted standards. The
defender office, its professional and support staff, and assigned
counsel or contract defenders should be supervised and periodically
evaluated for competence and efficiency.(28)
Read explanation of Background
of the Ten Commandments, by James Neuhard.
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