Discussion of The Ten Commandments of Public Defense Delivery Systems

While all counsel are bound by the Rules of Professional Conduct, specific standards concerning public defense have been adopted both nationally and locally. More standards, regulations, case law, and statutes have been written for this area of law than for any other. The result is an often daunting mix of mandatory and hortatory standards, guidelines, court rules, and regulations so comprehensive that few can fully read or assimilate it.

The recognition of the need for national standards for the provision by the government of criminal defense services began in 1967 with the American Bar Association's Standards for Criminal Justice, Providing Defense Services, now in its third edition. This was followed in 1973 with the Report of the Task Force on the Courts, Chapter 13, "The Defense," by the President's National Advisory Commission on Criminal Justice Standards and Goals, and then with the Guidelines for Legal Defense Systems in the United States by the National Study Commission on Defense Services. The American Bar Association and the National Legal Aid and Defender Association followed these with a series of standards covering appeals, juvenile defense, death penalty, contract defender systems, assigned counsel systems, and defender training, plus related model materials such as model public defender legislation and model contracts for public defense services.

At the local level, states enacted defender legislation that included numerous regulations, governance mechanisms, and system design requirements. States and local governments passed court rules and system regulations, modeled on or influenced by the national standards.

Collectively, these standards cover the wide diversity of areas where criminal defense systems provide counsel. The body of work is impressive, extremely useful, and scholarly in its integration of the Rules of Professional Conduct into often dissimilar areas of practice. However, for the most part, the standards themselves are written for lawyers who provide the service and are difficult to assimilate for those not familiar with or involved in the area.

In addition, effectively communicating the needs of a criminal defense system to legislators will become more difficult as terms shorten and as the number of lawyers continues to decline in our legislatures. This is not to suggest that lawyers are the only political constituency for quality indigent defense. Often the most knowledgeable and the strongest supporters of quality indigent defense systems are non-lawyers. However, it takes more time for non-lawyers to understand the issues and move indigent defense to a priority.

The introductions in the various national standards set out why the particular standards were necessary. The reasons include

• increasing areas of specialization, such as death penalty representation, appeals, and juvenile practice,
• scandals in the selection and payment of attorneys,
• staggering caseloads,
• salaries often half those of prosecutors,
• litigation by appointed counsel over fees that do not even cover overhead,
• low-bid contracts without concern for quality,
• high turnover of staff and appointed counsel,
• no training, investigation, expert witnesses, or sentencing specialists,
• inexperience, incompetence, and innocents being convicted,
• poor or nonexistent research capabilities or access to basic libraries, and
• gross underfunding.

Traditional governmental funding processes and marketplace incentives have not operated effectively to improve or moderate these problems. Unlike the private sector, indigent clients do not choose their attorneys and cannot fire them for unsatisfactory services. Legislators who fund and choose the type of defense delivery system do not directly oversee, receive, or use the services the system provides. Further, defendants who do use the services are not an influential constituency to voice their concerns to legislators.

Contributing to the problems and the difficulty of change is the diffusion of governance responsibilities. Responsibility directly or indirectly for the quality of indigent defense services resides in part with the funding authority, the judiciary, boards or commissions, grievance processes, and the executive branch. Funders and executive officers are not in a position to judge the performance of the system. Clients have little or no say in who their attorneys will be, whether attorneys stay on the appointment list, and whether they are well paid or have their fees cut.

In most jurisdictions that lack organized systems, with few exceptions, judges choose the attorneys and determine their pay. This immediate control by the judge may create the perception of patronage or concerns that the assigned lawyers chosen or paid by the judge will not willingly confront the judge who selects and pays them. Often there are complaints from the bar about too-low fees, the cutting of vouchers, or unfair denial of access to the work. Turnover is often high, training is almost nonexistent, and the quality of representation is subjective to the judge. This power far exceeds any similar power a judge has over the prosecutor or, for that matter, any other counsel in the court.

In the end, the national standards embodied and distilled in these commandments provide clear principles to assess the current system, no matter the system in place.

The concept of using standards to address quality concerns is not unique to the field of indigent defense. There are other areas of government where strong pressures of favoritism, greed, partisanship, or profits can undermine concerns for fundamental quality. Commissioners, county supervisors, and legislators long ago ceased taking the lowest bid to build a hospital or a bridge. They realized standards and codes were necessary to compare bids with confidence and to assure quality and protect public safety and health. Inspections and oversight help assure that the standards are complied with. With proper enforcement, standards help assure professionals' compliance with national norms in areas where the legislators themselves may lack expertise.

Ultimately, there remains this question: if "fixing" the problem requires more tax dollars, why should we, the taxpayers, pay for it? Why should an elected official require that the lawyers selected and paid by the state provide competent representation to accused individuals who cannot afford to hire a private lawyer? One reason is that those charged with a crime face the loss of their dignity, their families, their jobs, their liberty, and even their lives. Further, if defendants are wrongfully convicted or sentenced, the guilty go free and the state bears the cost of needless years of imprisonment. But equally at stake is the very soul of our justice system and our sense of justice. At the core of the system is the concept of fundamental fairness. This touchstone of American justice accounts for all the protections built into the process of accusation, arrest, trial, and appeal. But all those protections are of little value without "the guiding hand of counsel."

We have a well-developed adversarial criminal justice structure. However, without competent counsel, the system of justice is not adversarial--a flaw that threatens not just a few but the overwhelming majority of those arrested and processed through our criminal courts. In many urban settings, over 90 percent of the criminal defendants cannot afford to pay for counsel, even though the majority of defendants are employed when they are arrested. What used to be referred to as "appointment of counsel for the indigent" does not capture by any degree the reality of the populations requiring the appointment of counsel.

The sheer force of the government's power to accuse will overwhelm the untrained, the inexperienced, and the unprepared. Our system assumes and expects that defense counsel will test the government's case at every step. We can take no solace that "endless appeals" or "technicalities" protect the innocent unless a competent attorney is there to make us all stop and give individual attention to each case no matter the clamor, the passion, or the routineness that surrounds it.

If one leg of the structure comprising the prosecution, the court, and the defendant is fundamentally and chronically weak, the justice system's classic three-legged stool will collapse. There are no market forces that will cause self-correction of our systems of representation of low-income individuals charged with a crime. And if such representation collapses, so too does our entire system of criminal justice and our nation's dream of fundamental fairness.

James Neuhard

Published in 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).

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