Title: What Policymakers Need To Know To Improve Public Defense Systems
Series: Bulletin
Author: Tony Fabelo
Published: December 2001
Subject: defense services, case processing, legal aid services
23 pages
49,152 bytes

----------------------------

Harvard University
John F. Kennedy School of Government

December 2001
Bulletin #2

----------------------------

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 discussions 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 Management, 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.

----------------------------

What Policymakers Need To Know To Improve Public Defense Systems
Tony Fabelo

In 1937, U.S. Supreme Court Justice Benjamin Cardozo stated that certain
fundamental constitutional rights are the basis for all other rights and that these
fundamental rights are "implicit in the concept of ordered liberty."[1] In criminal
trials, the right to counsel is a fundamental right. Since the Court's 1963
decision in Gideon v. Wainwright,[2] an indigent defendant who cannot afford
counsel must be provided an attorney by the state. The Court made the states
responsible for how public defense would be provided to criminal offenders
who are unable to pay for private counsel. This and subsequent Court decisions
led states to adopt public defense systems. Today, many questions exist as to
the effectiveness of some of these public defense systems.[3]

This paper establishes sets of questions to aid policymakers in thinking about
the value and effectiveness of their public defense systems and includes several
responses to the author's views by Mark Moore, Daniel and Florence V.
Guggenheim Professor of Criminal Justice Policy and Management, John F.
Kennedy School of Government, Harvard University, Cambridge,
Massachusetts. Because this field is complex and practices vary throughout the
country, knowing where to start can be difficult. Instead of establishing specific
outcomes, this paper serves as a guide--a map of questions that policymakers
should ask when deciding where to begin investigating public defense services,
how to direct field researchers, and how to evaluate the information gathered.

Two serious obstacles to improving public defense systems are the lack of data
and lack of systemic policy analysis that state policymakers need to address the
relevant issues concerning public defense. Examination of the limited literature in
this area reveals the lack of empirical research relevant to improving public
defense systems. This paper proposes that policymakers and researchers
develop a strategy for formulating relevant inquiries and then gathering current
data to assess the effectiveness of a state's public defense system. 

To begin, policymakers must identify why a state would want a strong public
defense system and formulate key questions to ask before deciding how best to
improve and evaluate their public defense system.[4] Until a comprehensive
body of knowledge is established and analyzed, reforms in public defense
systems will continue to be difficult. 

Value of a Strong Public Defense System

Traditionally, support for a strong public defense system arises from the notion
that a defendant cannot be tried fairly in the U.S. court system without an
adequate defense. Supreme Court Justice Hugo Black stated in the Gideon
decision that the "right of one charged with crime to counsel may not be
deemed fundamental and essential to fair trials in some countries, but it is in
ours."[5] To achieve justice, an adversarial system structured to search for the
truth requires capable counsel for the state and the defendant. In addition, a
strong public defense system is a central component of an effective
crime-fighting policy to shield poor citizens and, indirectly, all citizens against
abuses by the state. It also facilitates a smoother operating justice system and,
in so doing, allows the courts to respond effectively to growing caseloads. A
strong public defense system promotes the legitimacy of the justice system--
legitimacy necessary to maintain public support. 

Protection Against Crimes Committed by the State

A strong public defense system is the first line of defense against corruption in
the justice system. The state can commit crimes against its citizens by abusing
policing, prosecutorial, and judicial powers. Abuses tend to occur first against
poor people who are alienated from the socioeconomic and political
mainstreams. The general public may "look the other way" when the justice
system abuses members of alienated populations, but this apathy may fuel
further corruption in the system. Widespread corruption can lead to state
abuses against law-abiding citizens. Providers of public defense services
maintain the system's integrity and prevent corruption of the justice system.
Therefore, a strong public defense system also can help control crime within the
justice system--crimes committed by those who abuse state policing,
prosecutorial, and judicial powers.

Increasing the Effectiveness of the Justice System

Justice works best when all players within the system are competent and have
access to adequate resources. When the system includes well-trained public
defenders, cases move faster (helping the court manage growing caseloads),
and the system tends to generate and implement innovative programs. With
members of such nontraditional populations as homeless and mentally ill people
flooding the system, public defenders can act as mediators to facilitate access to
special programs that divert these offenders away from crowded jails and
prisons. For example, Miami's Public Defender Anti-Violence Initiative reaches
out to a variety of public and private service providers in the community that a
defendant might need to successfully avoid further legal troubles.[6] By
managing caseloads and facilitating effective alternative interventions for special
needs populations, public defenders increase the justice system's capacity to
respond to growing demands. In this sense, public defenders assist in the fight
against crime and contribute to the effective operation of programs that may
help reduce recidivism, thereby increasing the effectiveness of our justice
system.

----------------------------


Identifying the Value of Public Defense

"In Tony's conception, the value of a public defender office lies only in the
services delivered directly to clients and indirectly to the operations of the court
system as a whole. Absent from this conception is the value that might be
created by expanding the public defender's capacity to understand and speak
for the impact that public policy decisions will have on those accused of crimes,
their families, and their neighborhoods. In effect, Tony's view ignores the value
that could be produced by a public defender office through its contribution to
the quality of criminal justice policymaking." 

--Mark Moore

----------------------------

Legitimacy of the Judicial Process

A strong public defense system is essential for maintaining the legitimacy of the
judicial process. The public's belief that the system is governed by fair play is
essential for long-term support. Studies 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 strong public defense system allows
those most alienated from the institutional mainstream to feel that the system is
not stacked against them, even when they break the law and are punished.
Among alienated populations, this perception of fairness helps maintain the
peace by reducing grievances against the system. When lawbreakers confront a
fair justice system, they get the message that the public values the law. When
lawbreakers confront an unfair justice system, they get the message that the
public values power and privilege, instead of the law.

Research To Guide Policymaking

A significant problem facing policymakers is the lack of comprehensive
research to guide public defense policy and reform. Advocates for improving
public defense services debate issues regarding the best way to deliver quality
public defense services, with a strong bias in favor of enhancing public defender
offices. As expected, advocates favor spending more money rather than less on
these services. For policymakers, however, a basic obstacle to promoting
reform is the lack of systematic research to guide policy development.
Consequently, efforts are under way to gather data, set standards, and measure 
outcomes.

Obstacles to Gathering Data and Setting Standards


A major obstacle to gathering data is the inconsistency in the delivery of public
defense services among systems nationwide. This makes it difficult not only to
gather data but also to make comparisons between systems. According to The
Spangenberg Group (a nationally recognized research and consulting firm that
specializes in improving justice programs), most states deliver public defense
services using a public defender's office (18 states) or a combination of public
defender, assigned counsel, and contract defender (another 29 states).[8] Only
three states rely mainly on an assigned counsel system, with or without contract
defenders. States vary also in how they regulate public defense systems. Most
develop minimum state standards, whereas others provide minimal state
oversight with more local control.[9]

Another obstacle to gathering relevant data and making comparisons is that
funding levels for indigent defense services vary among states. A Spangenberg
Group survey finds that 21 states fund public systems and the remaining states
rely on county funds or a mix of funds derived from county, state, and court
filing fees. The survey finds that assigned counsel's hourly compensation at
felony trials (noncapital cases) varies significantly among states, with some
paying less than $40 for in-court services, with a maximum benefit of $1,000,
and others paying up to $60, with a maximum benefit of $3,000. Because
funding for defense services is affected by a wide variety of local circumstances,
calculating and comparing funding levels among states is difficult.

Further, federal research funds for the defense lack parity with those for
prosecution and law enforcement; this has not motivated the research
community to develop a basic research agenda as a starting point for informing
policymakers on public defense operations. Moreover, state legislatures have
been reluctant to provide resources to research state and local public defense
concerns. One reason for this reluctance may be that policymakers have not
been clear about why the research is needed or what is required to achieve it.
Another reason for this reluctance may be society's--and thus legislators'--
ambiguous commitment to funding public defense services. Because of this lack
of funding and general interest in defense research, individual policymakers
concerned with public defense issues must start from scratch to identify areas
for data collection that will ground future decisions in fact rather than anecdote.

In summary, reasons for the lack of research data and analysis in public defense
services include little federal and state funding, a weak political constituency for
public defense, and no nationwide uniformity of state defender services. What is
needed is a national infrastructure for public defense service providers, which
would serve as a clearinghouse for research and other information. 

----------------------------

Costs of Quality

"Tony is right, I think, to want to get harder information about the costs of
providing the quality of publicly supported criminal defense that is consistent
with our notions of what all defendants are entitled to have. This standard can
get dragged down to a minimum, of course, by an interest in satisfying
taxpayers' demands to save money, and by the public's belief that 'most
defendants are guilty anyway.' But we ought to try to fix a standard at a level
above the current tawdry one. It is too easy for us to imagine that 'we' would
never need indigent defender services and that 'they' who do are not worth the
trouble. This leads to stinting on the quality of the service. If, however, we carry
in our minds the notion that 'we' might actually find ourselves in 'their' position,
the standard is likely to rise."

--Mark Moore

----------------------------

Developing a Research Agenda

Localities need a research agenda to collect accurate and useful data, establish
standards, and identify better practices in public defense systems. Each locality
should establish agreed-upon standards and provide support to defense
lawyers to meet those standards when representing the indigent accused. In
1997, the National Legal Aid and Defenders Association's Blue Ribbon
Committee on Indigent Defense stated that indigent defense systems need
"well-researched, reliable, nationally accepted standards." 

A policy research agenda that guides systemic reforms should identify prima
facie elements that are known components of quality defense. Quality
representation of a targeted group requires identifying core elements that make
a system efficient, fair, cost-effective, and productive. Support for one aspect
of a public defense system will affect other elements of the system. To make
informed decisions, legislators and system designers must consider the
interrelationship of all elements within a public defense system.

Before beginning to collect data and study local public defense services, a
research agenda must be designed. In previous literature concerning public
defense, the most basic questions have not been answered in a systematic way
and, apparently, cannot be easily answered for particular localities without a
well-established research agenda.


Research must provide hard facts to progress from general to specific
operational strategies directed at improving public defense services. The
research should provide the knowledge to 

o Develop standards for providing quality public defense services.

o Determine funding needed in a locality for a public defense system to meet
agreed-upon standards.

o Monitor compliance with standards.

o Design and measure performance to justify investments in public defense.

o Determine operational procedures that can be improved to increase 
performance.

State financial expenditures made without understanding how best to achieve
these policy goals will not serve the criminal justice system well--nor will they
serve the growing number of individuals who cannot afford to hire defense
counsel. The minimum expectation for indigent defendants is that they receive a
competent defense that meets minimum constitutional standards. However, until
an adequate defense--one that extends beyond basic constitutional
requirements--is defined and made operational with standards, no significant
progress will occur in improving defense services.

Standards for Public Defense Systems

Although the American Bar Association has established some minimum
standards, they must be revised for modern defense systems. Others have
articulated general standards for public defense systems, including James
Neuhard, Director of the Michigan Appellate Defender Office, and Scott
Wallace, Director of the Defender Legal Services for the National Legal Aid
and Defender Association. With the advice of other public defense leaders,
they have written "The Ten Commandments of Public Defense Delivery
Systems,"[10] which provides guidance for creating standards that define
quality in defense systems.

With literature reviews and case studies, these Commandments may be refined
to satisfy the needs of a specific locality. If developed with accurate case
studies, they could aid policymakers substantially. To build on Neuhard and
Wallace's Commandments, a policy research strategy should examine the many
dimensions at work in a public defense system and identify what information
needs gathering, what needs reform, what impact those reforms will have on
other parts of the system, and how to make the proposed reforms.

Nine Elements of a Research Strategy

The following list highlights nine major elements to include in developing a
public defense research agenda. The research agenda needs to examine the
structural characteristics (elements one through six) of the public defense system
first--those that make it independent, determine workload capacity, and
determine how to organize and prepare for its work. Next, it needs to examine
the quality of services provided, using the last three elements--notification time,
access to counsel, and overall quality of representation.

Independence. How do mechanisms used to appoint and compensate counsel
affect the independence of counsel to engage in a vigorous defense? Indicators
need to be developed to assess the extent to which appointment and funding
are removed from parties that can pressure defense counsel into engaging in
less than a vigorous defense to satisfy court processes or funding goals.

Coverage. What is the target population to be served? How are requests for 
counsel screened for eligibility for the appointment of counsel? The eligibility
criteria should allow a range of populations to be served, from a minimal
number of defendants who meet only very strict definitions of indigence to a
larger number that includes marginally indigent defendants, who can be served
using copayments. 

What eligibility criteria will be established for appointing publicly supported
counsel? The Constitution establishes the basic concept of right to counsel
regardless of ability to pay. But it is much less clear on the question of what
constitutes indigency for deciding who will be eligible for publicly supported
counsel. For example, what will be measured--wealth or income? Will the
capacity to pay be calculated for the particular individual or will resources of
extended family members be considered as well? What will be the cutoff point
for eligibility? Obviously, eligibility is an important design feature because it
influences the overall size of the potential client population and workload of the
system.

Workload. Are mechanisms in place to monitor properly the workload handled
by each defender? Workload is a measure of the capacity to do the job and the
demand. It is thought to be related to quality but is not a direct measure of
quality representation. Closely tied to the issue of defense counsel qualifications
and case complexity, workload measures need to be developed to guarantee
the capacity of counsel to properly handle their cases. For example, in some
states, such as Tennessee, workload measurements are more accurate because
analysts use weighted caseload measures.

----------------------------

The Ten Commandments of Public Defense Delivery Systems

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, 

Thou shalt . . .

1. 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.
To safeguard independence, and to promote efficiency and quality of services,
a nonpartisan board should oversee defender, assigned counsel or contract
systems. Ensuring that the judiciary is independent from undue political
pressures is an important means of furthering the independence of indigent
defense.

2. Assure that where the caseload is sufficient, the public defense delivery
system consists of both a defender office 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. The appointment
process should never be ad hoc, but should be according to a coordinated plan
directed by a full-time administrator who is an attorney familiar with the varied
requirements of criminal practice in the jurisdiction. 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. 

3. Screen clients for eligibility, then assign and notify counsel of their
appointment within 24 hours. Counsel should be furnished upon arrest,
detention, or request, and in no event more than 24 hours thereafter. 

4. 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. Counsel should have confidential
access to the client for the full exchange of legal, procedural, and factual
information between counsel and client. To ensure confidential communications,
private meeting space should be available in jails, prisons, courthouses, and
other places where defendants must confer with counsel.

5. Assure 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.
National caseload standards should in no event be exceeded, 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.

6. Assure 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.

7. 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. On appeal, the attorney assigned for the direct appeal
should represent the client throughout the direct appeal.

8. 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. Assigned counsel
should be paid a reasonable fee in addition to actual overhead and expenses.
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, and should separately fund
expert, investigative, and other litigation support services. No part of the justice
system should be expanded or the workload increased without consideration of
the impact that expansion will have on the balance and on the other components
of the justice system. Indigent defense should participate as an equal partner in
improving the justice system.

9. 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.


10. 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.

----------------------------

Qualifications. Are mechanisms in place to guarantee that the abilities of defense
counselors match the complexity of the cases to which they are assigned?
Criteria that categorize counselor qualifications in relation to their types of cases
establish a baseline for evaluating whether qualified defense lawyers are
provided to the accused. Generally, qualification standards are thought to
ensure quality representation, but qualifications are not a direct measure of
quality.

Support Services. Are mechanisms in place to access current research
materials, investigators, expert witnesses, and sentencing specialists? 
Developing standards for minimum support services needed for specific types
of cases is essential in the calculation of adequate support services. Like
workload and qualifications, support services are thought to be an attribute of
quality but not a direct measure.

Training. Are mechanisms in place to require specific training or continuing legal
education for defense counselors? Training is essential for defense lawyers to
maintain their skills, particularly in areas that require special expertise (for
example, defending convicted sex offenders who are eligible for post-prison
sentence civil commitment under the new civil commitment statutes adopted in
some states). Training also may help retain a racially and culturally diverse
public defense bar.

Notification Time. How long does it take for counsel to be appointed and the
defendant to be notified of the appointment? The speed of appointment affects
the counsel's ability to influence early stages of the criminal prosecution process
and the defendant's ability to be released on bail and gather witnesses and other
resources to prepare the defense. Notification time is a feature of quality
representation that may be valued by both society and the client. It is thought by
both to be a direct but incomplete measure of the quality of representation in a
case. However, the cost associated with providing short notification time is that
a number of lawyers must be on duty to respond around the clock. A
consequence of this readiness for peak workloads and quick response is that
this same capacity is available even when the demand for legal services is low.

Access to Counsel. How are defendants granted access to counsel and how is
confidentiality protected? Access to counsel is closely related to notification
time and may affect costs significantly. Organizational structures can facilitate or
handicap access to counsel and confidentiality, which in turn can impact the
effectiveness of attorney-client interactions.

Overall Quality Representation. What is the actual quality of performance in
representing individual clients--as judged by clients and as judged against
professional standards?

It may appear that the nine elements listed above are arranged in a sequence
that moves from "policy" (legislative interest and action) to "operations" (left to
the discretion of system managers), but this is not necessarily the case.
Legislators may believe some aspects of service quality are fundamental to
public defender offices, and consequently, lawmakers may design policies to
limit or guide the discretion of system managers. Thus, the kind of justice
lawmakers intend to produce will affect the operational features of the system
as system managers implement policy.

Courts, too, can mandate performance standards that identify attributes of
quality that must be met. As mentioned in the nine elements above, the need for
defendants to see their counsel early is an apparent operational standard that
both legislatures and courts may specify. Whether or not standards mandated
by legislatures or courts are higher or lower than one another, the challenge for
system managers is to calculate the costs to meet the specified standards of
quality.

The development of national standards in the areas highlighted above may
provide a comparative benchmark. Therefore, reform advocates need to show
policymakers how a public defense system can be improved by focusing, at
least initially, on the critical issues above. For example, it would be powerful for
case studies to reveal that 

o A system's target population omits a large group of marginally poor people
who cannot afford a quality defense.

o Appointment notification time is longer than in most other systems.

o Discretionary appointments, which are made by judges and follow no
established guidelines, have a negative impact on the independence of counsel
even if access to counsel is adequate.

o Qualification standards for counsel are not present.


o Workloads are not monitored and may be excessively high.

o Support services are lacking.

o Continued education and/or training are not required. 

By defining the elements of the public defense system and implementing
standards and practices, the quality of systems may be measured. In similar
localities (outside and inside a state under examination), the evaluation of an
individual defense system may also allow other systems to revise their policies
based on the one evaluation--creating a more efficient and fair public defense
system nationally.

----------------------------

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 Outcomes

What is the market value of quality representation? This key question must be
answered in order to address funding decisions. In the theory of a pure free
market system, if the price paid by the state or county for defending an indigent
in a criminal case were not competitive, no competent lawyers could be hired.
A system that pressures bar members to participate in a public defense market
reduces competitive forces. A system that treats all lawyers as if they were of
equal competence also reduces the competitive forces by allowing "rookies" to
bid for jobs that would be more difficult to get in a free market. Under these
circumstances, the state or funding agency has the upper hand and the private
sector ends up subsidizing the provision of defense services--just as privately
insured individuals subsidize the health care of uninsured indigent patients.

This harsh market reality will be hard to change unless evidence clearly
indicates that a given locality's level of public defense funding adversely affects
standards and outcomes for indigent offenders. Without better defined
standards and outcomes, it will be difficult to address the issue of what is
adequate funding for public defense. Clearly, systems that have been neglected
to the extent that they are unable to meet basic standards in the areas delineated
earlier can be taken to task for providing too little funding. When the systems
seem to meet the basic requirements, however, the question becomes, what
would additional funding buy in outcomes for defendants--greater client
satisfaction? More litigation? That their voices be heard? If public defense
lawyers are paid a lower fee than private lawyers for defending comparable
cases, will indigent defendants be more likely to be indicted, incarcerated,
denied some other benefit, or to receive longer sentences?

Few studies, according to a review of the literature conducted by Feeney and
Jackson in 1991, "have closely examined the relationship between level of
resources and quality representation."[11] Opinion surveys of judges,
prosecutors, defense lawyers, and defendants show that these players perceive
private attorneys to be more effective. However, statistically, defendant cases
that are examined reveal no evidence to support this perception.[12] 

Sentencing studies that consider type of counsel have produced mixed results.
"The more controlled the sentencing study is, the more likely that the type of
counsel will have no effect on case outcome."[13] No empirical evidence links
what outcomes are expected at higher levels of funding with those achieved at
lower levels of funding. Therefore, policymakers and legislators must ask the
following questions of defense systems with fewer financial resources. Will
better-funded defense systems 

o Help the judicial system process cases faster?

o Provide better pretrial and sentencing alternatives?

o Provide better coordination of support services? 

o Increase public confidence in the justice system?

o Decrease the errors that deny defendants' rights, without increasing public
safety risks?

Obtaining better research data is a critical first step to answering these
questions. Operational research also can be used to improve service delivery.
For example, research can be used for "spot" quality control checks--such as
uncovering problems with the billing practices of assigned counsel or identifying
areas of billing and accountability that can be improved--and for monitoring
caseloads and workloads to maintain quality. 

----------------------------

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 

----------------------------

Conclusion

Defense lawyers are a necessity, not a luxury, in any criminal justice
system,[14] but it is important to identify the best ways to provide public
defense services before deciding on funding. This nation's defense systems need
a national research agenda to generate critical information to guide state or local
policymakers who may be struggling to improve their systems. Such information
will help policymakers develop standards for public defense services,
understand how achieving these standards will affect funding, and design
performance measures to demonstrate the returns and generate higher
investments in public defense systems.

Strong advocacy is an inherent quality of the public defense lawyer culture,
driven by the conviction that these attorneys and other advocates have "their
hearts in the right place." However, emotional zeal is not enough in an era that
requires hard facts to influence policymaking. Today, this vein of zealous trial
advocacy struggles against a lack of relevant policy analysis to guide and
influence the enactment of policies that affect the defense function.

With the controversial issue of public outlays for the legal defense of alleged
criminals, the lack of hard facts makes it especially difficult to enact effective
policies. Anecdotes about particular abuses of indigent defendants are
countered by anecdotes of injustices to victims. Without accurate empirical
information on what to reform, how best to reform it, and what outcomes to
expect, it will be difficult to achieve the consensus necessary to improve public
defense services.

For More Information

More information on public defense is available from the following
organizations:

U.S. Department of Justice: www.usdoj.gov

The Gideon Project, Open Society Institute: www.soros.org

National Legal Aid Defender Association (NLADA): www.nlada.org

The Spangenberg Group: www.spangenberggroup.org

Vera Institute of Justice, National Defender Leadership Project: www.vera.org

American Bar Association, Division for Legal Services:
www.americanbar.org/legalservices

The Brennan Center for Justice at New York University School of Law:
www.brennancenter.org

National Association of Criminal Defense Lawyers, Indigent Defense Council:
www.criminaljustice.org

National Equal Justice Library, Washington College of Law, American
University: http://nejl.wcl.american.edu


Several Bureau of Justice Statistics reports address public defense findings,
including

Steven K. Smith and Carol J. DeFrances, Indigent Defense, Bureau of Justice
Statistics Selected Findings, February 1996 (NCJ 158909)

Carol J. DeFrances and Marika F.X. Litras, Indigent Defense Services in
Large Counties, 1999, National Survey of Indigent Defense Systems, 1999,
November 2000 (NCJ 184932)

----------------------------

MEMBERS OF THE EXECUTIVE SESSION ON PUBLIC DEFENSE

William Bratton, Former Police Commissioner
New York City Police Department
New York, NY

Ann Christian, Director
Indigent Defense Services Division
The State Court Administrator's Office
Salem, OR

Cait Clarke, Project Manager
Executive Session on Public Defense
Program in Criminal Justice Policy and Management
John F. Kennedy School of Government
Harvard University
Cambridge, MA

Beth Davis, Former State Defender and Executive Director
Mississippi Public Defender Commission
Jackson, MS

Tony Fabelo, Executive Director
Texas Criminal Justice Policy Council
Austin, TX

Nancy E. Gist, Former Director
Bureau of Justice Assistance
Office of Justice Programs
U.S. Department of Justice
Washington, DC

Angela Glover Blackwell, President
PolicyLink
Oakland, CA

Daniel Greenberg, President and Attorney-in-Chief
The Legal Aid Society
New York, NY

Francis X. Hartmann, Executive Director and Senior Research Fellow
Program in Criminal Justice Policy and Management
John F. Kennedy School of Government
Harvard University
Cambridge, MA

Phyllis Hildreth, Former Chief Counsel for Administration
Maryland Public Defender Office
Baltimore, MD

Mary Hoban, Chief Social Worker
Office of the Chief Public Defender
Hartford, CT

Michael P. Judge, Chief Public Defender
County of Los Angeles
Los Angeles, CA

John P. Kretzmann, Co-Director
Asset-Based Community Development Institute
Institute for Policy Research
Northwestern University
Evanston, IL

Michael P. Lawlor, State Representative
State of Connecticut General Assembly
House of Representatives
Hartford, CT

Carlos J. Martinez, Chief Assistant Public Defender
Dade County Public Defender's Office
Miami, FL

Mark H. Moore, Daniel and Florence V. Guggenheim Professor of Criminal
Justice Policy and Management
John F. Kennedy School of Government
Harvard University
Cambridge, MA

James R. Neuhard, Director
State Appellate Defender's Office
Detroit, MI

Leonard E. Noisette, Executive Director
Neighborhood Defender Service of Harlem
New York, NY

Charles J. Ogletree, Jr., Jesse Climenko Professor of Law
Harvard Law School
Cambridge, MA

Bill Ritter, Jr., District Attorney
Denver, CO

Ellen Schall, Martin Cherkasky Professor of Health Policy and Management
Robert F. Wagner Graduate School of Public Service
New York University
New York, NY

Bryan Shaha, Office of the Alternate Defense Counsel
Greeley, CO

Robert L. Spangenberg, President
The Spangenberg Group
West Newton, MA

Robin Steinberg, Executive Director
The Bronx Defenders
New York, NY

Mark Stephens, District Public Defender
Knoxville, TN

Christopher E. Stone, President and Director
Vera Institute of Justice
New York, NY


Randolph N. Stone, Clinical Professor of Law and Director
Edwin F. Mandel Legal Aid Clinic
University of Chicago Law School
Chicago, IL

Kim Taylor-Thompson, Professor of Clinical Law
New York University School of Law
New York, NY

Jo-Ann Wallace, Chief Counsel
National Legal Aid and Defender Association
Washington, DC

Henry Weinstein, Legal Affairs Writer
Los Angeles Times
Los Angeles, CA

----------------------------

Notes

1. Palko v. Connecticut, 302 U.S. 319 (1937).

2. Gideon v. Wainwright, 372 U.S. 335 (1963).

3. Throughout this article, the term "public defender" refers to all public defense
lawyers, including professional full-time public defenders, assigned counsel, and
contract lawyers. A public defender office is a publicly funded agency that hires
lawyers and various support services to provide indigent defense. An assigned
counsel system relies on the assignation of defense counsel by an appointed
authority (usually the judge or a designee), and the defense counsel are private
practice attorneys paid a standard fee. In a contract system, the funding agency
contracts with private law firms, which provide their services at a contractual
rate.

4. This bulletin does not address public defense issues in capital cases.

5. Gideon, 372 U.S. 344. 

6. National Legal Aid and Defender Association, "Community Partnerships," in
Indigent Defense, Vol. 3, No. 2 (May/June 1999). 


7. See e.g., Blaine Harden, "Poll Shows City's Blacks Fearing Brutality and
Bias but Optimistic on Future," New York Times, June 26, 2000, at A29.
"Black residents of New York City are afraid of being brutalized by the police,
but they welcome and appreciate officers who keep criminals out of their
neighborhood." Id. at A29.

8. For a more complete explanation of how defender services are provided,
see Robert L. Spangenberg and Marea L. Beeman, "Indigent Defense Systems
in the United States," Law and Contemporary Problems, Vol. 58, No. 31
(1995). Maine and North Dakota are two states that have no public defender
system across the entire state.

9. The American Bar Association, along with most states, has established
written guidelines. See e.g., ABA Standards for Criminal Justice: Providing
Defense Services, 3d Edition (Washington, DC: American Bar Association,
1992), www.abanet.org/crimjust/standards/defsvcs_toc.html. State standards
for public defense practices can be accessed on the National Legal Aid and
Defender Web site (www.nlada.org).

10. For complete text, see
www.ojp.usdoj.gov/indigentdefense/compendium/standardsv1/v1intro.htm.

11. Floyd Feeney and Patrick G. Jackson, "Public Defenders, Assigned
Counsel, Retained Counsel: Does the Type of Criminal Defense Counsel
Matter?" Rutgers Law Journal, Vol. 22, No. 361, 410 (1991). 

12. Id. at 408.

13. Id. at 338.

14. Gideon, 372 U.S. at 344. See also Powell v. Alabama, 287 U.S. 45, 68-
69 (1932).

----------------------------

The Executive Session on Public Defense (ESPD) was designed to encourage a
new form of dialogue between high-level practitioners and scholars, with a view
to redefining and proposing solutions for substantive policy issues. Practitioners
rather than academicians were given majority representation in the group.
Meetings were conducted as loosely structured seminars or policy debates.
Between 1999 and 2001, ESPD met 5 times. During the 3-day meetings, the
30 members discussed the facts and values that have guided, and those that
should guide, public defense.


----------------------------

NCJ 190725