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NLADA Standards  | American Bar Association  | Compendium of Indigent Defense Standards

Blue Ribbon Advisory Committee on Indigent Defense Services

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Contents

Prefatory Note
Crisis in Criminal Justice
The National Advisory Committee
Findings and Recommendations
1. Providing Training for Attorneys, Administrators and Support Staff
2. Updating Standards for Indigent Defense Services
3. Auditing Defender Programs and Providing Technical Assistance
4. Promoting the Use of Social Service and Other Interdisciplinary Resources
5. Encouraging Community Involvement and Adjudication Partnerships
Conclusion

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Blackletter

Marshall J. Hartman, Reporter
Clinton Lyons, NLADA Executive Director

      Printed below is the 1996 Final Report of the National Advisory Committee on Indigent Defense Services convened by the National Legal Aid and Defender Association with grant support from the Bureau of Justice Assistance in the U.S. Department of Justice.

Crisis in Criminal Justice
     There is a crisis in defender services. Historically underfunded, the strain on the indigent defense component of the criminal justice system has been exacerbated by the federal government’s declared “war on drugs” fought with a zero tolerance policy that promotes the criminalization of more behavior and Draconian penalties (such as "three strikes" and mandatory sentencing laws). While drug war pressures have resulted in increasing sums of money to fund courts, prosecution, police and corrections, criminal defense spending remains almost negligible in comparison. This failure to fairly fund the indigent defense component of the criminal justice “eco-system” has resulted in “overburdened public defenders, the incarceration of the innocent, court docket delays, prison overcrowding, and the release of violent offenders into the community,” Klein and Spangenberg, The Indigent Defense Crisis, ABA Criminal Justice Section, (1993) at 25.
     The hallmark of our American democracy has always been equal justice under the laws for all citizens. Despite this guiding principle, the norm in this country’s criminal justice system is underfunded and overburdened public defender offices. See Neuhard, Criminal Justice In Crisis, ABA Special Committee on Funding the Justice System (1988). Meaningful compliance with the Sixth Amendment’s right to counsel is often absent due to inadequate funding. Lefstein, Criminal Defense Services for the Poor: Methods and Programs for Providing Legal Representation and the Need for Adequate Funding, ABA (1982). As Dean Norman Lefstein stated in his report to the ABA Standing Committee on Legal Aid and Indigent Defense, “there are neither enough lawyers to represent the poor, nor are all the available attorneys trained, supervised, assisted by ample support staffs, or sufficiently compensated.” Id. at 56.
     This situation has not improved with time. A 1990 Bureau of Justice Statistics (BJS) report revealed that the defense function received less than one third of the federal, state, and local funds expended by the prosecution. See Justice Expenditure and Employment, 1990, U.S. Dept. of Justice, BJS, 1992. When one considers the allocation of federal funds only, the imbalance is even more pronounced. Federal funds distributed to state and local units of government are 40 times more likely to support law enforcement, corrections and prosecution than indigent defense services. See NLADA, Final Report: Indigent Defense and the FY 94 BJA Formula Grant Program, 1995. Out of a total allocation of $450 million, indigent defense services were awarded approximately $10 million. Id. According to a National Institute of Justice (NIJ) Report in 1990, less than 1% of the defenders surveyed had received federal grant funds, while over 62% of the prosecutors in the jurisdictions surveyed had received such funding. See NIJ, National Assessment Program: Survey Results for Public Defenders, 1990. Of course, this disproportionate spending pattern has fallen most heavily on the poor. In the past five-year period, public defenders and court appointed counsel have typically represented over 75% of the criminally accused in this country, as contrasted with a felony appointment rate of 65% in 1973. See Benner & Lynch, The Other Face of Justice, NLADA (1973), as contrasted with NIJ, National Assessment Program: Survey Results for Public Defenders, 1990. See also, Bureau of Justice Statistics Selected Findings: Indigent Defense, Dec. 1995.
     Against the backdrop of a criminal justice system with an expanding need for resources (and, in particular, the growing, unmet needs associated with the defense function), and the concomitant shrinking of federal, state, and local resources, the Bureau of Justice Assistance (BJA) awarded a grant to the National Legal Aid and Defender Association (NLADA) in 1994. The purpose of the grant was to enable NLADA, which represents many of the public defender and assigned counsel programs in America, to respond to this crisis in the criminal justice system.
     The response contemplated by the grant was multi-faceted. It included conducting several regional training seminars relating to the defense of drug cases, preparing a manual on the defense of drug cases, and assembling a broad-based committee of experienced members of the judiciary, the prosecution, private indigent defense counsel, public defenders, and academicians to serve on a national “Blue Ribbon” Advisory Committee. The purpose of this committee was to identify successful models of indigent defense programs, as well as alternative initiatives crucial to the improvement of the criminal justice system; to agree upon areas of indigent defense representation that required further research and development; and to determine priorities for the funding of such programs by BJA under both their block grant and discretionary programs; or to suggest other funding agencies where appropriate.
     The role of the Justice Department through its Bureau of Justice Assistance cannot be overestimated in the indigent defense area. As indicated above, state and local funds are scarce, and federal funds targeted for state and local units of government are rarely awarded to indigent defense programs. Although it may not be as politically popular to fund defense systems, in order to maintain a balanced system the defense component must be fairly funded or the justice system as contemplated by our forefathers in the Bill of Rights will break down. Although it may appear inapposite at first blush, it is both necessary and appropriate for the defense sector to look to the Department of Justice for funds to insure that equal access to justice for all will prevail in these United States of America.

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The National Advisory Committee
     As contemplated by the grant, in early 1995 NLADA formed a National Advisory Committee composed of experienced academics and practitioners who were knowledgeable about the criminal justice system, particularly the defense function. The twelve member committee met several times (March 26, 1995, September 23, 1995, and January 27-28, 1996) and also conferred by conference call and in subcommittee during the grant period.
     The group elected as Chairperson, Jo-Ann Wallace, Director of the Public Defender Service of Washington, D.C., and NLADA Board and Defender Council member; and as Vice-Chairperson, Professor Barbara Bergman of the University of New Mexico School of Law. Committee Members included: James Neuhard, State Appellate Defender of Michigan, and past President of NLADA; David Meyer, former deputy director of the Los Angeles County Public Defender office, and Chairman of the Defender Council of NLADA; Jill Miller, MSW, and a member of the NLADA Defender Council; the Hon. Cara Lee Neville, District Court of Hennepin County, Minnesota, and current Chair of the ABA Criminal Justice Section Council; Leonard Noisette, Director of Neighborhood Defender Services of Harlem in New York City; the Hon. Roosevelt Robinson, District Court of Multnomah County, Portland, Oregon; the Hon. Andrew Sonner, State’s Attorney for Montgomery County, Maryland, and past Chair of the ABA Criminal Justice Section Council; Marty Pinales, a private criminal defense attorney in Cincinnati, Ohio, and board member of the National Association of Criminal Defense Lawyers; Dean Norman Lefstein of Indiana University School of Law at Indianapolis; and Marshall J. Hartman, former Chief Public Defender of Lake County, Illinois, and Acting Director of the Illinois Capital Resource Center, who was selected to act as Reporter for the Committee.
     NLADA staff members Addie Hailstorks, Director of the defender Division; Alvita Eason, Clearinghouse Attorney; and Billie Bitely, Research Associate, provided materials, facilitated discussion, and acted as staff to the Committee. Charles “Bud” Hollis, Chief of the Adjudication Division, Bureau of Justice Assistance, who served as project monitor, participated in the discussions and provided valuable input, focus, and direction to the group.

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Findings and Recommendations
     The committee’s unanimously approved guiding principle was that a high quality and efficient indigent defense system was critical to the proper functioning of the American criminal justice system as a whole. While the group early acknowledged the many wide ranging deficits facing defender communities, members reached a consensus on five national priority areas of critical need. The five areas identified, and discussed in this report, are:

  1. Training;
  2. Standards for indigent defense services;
  3. Auditing and technical assistance;
  4. Utilization of social service and other interdisciplinary resources; and
  5. Coalition building: adjudication, community and other partnerships.
     Within each of these major areas, the committee outlined various subcategories of need which must be addressed in an overall plan if the defense component of our criminal justice system is to survive and compete with the tremendous resources being poured into other aspects of the justice system. The committee next attempted to identify potential undertakings that could be further developed into specific grant projects to fulfill the priority needs. Finally, where possible, the group identified existing programmatic models which appeared to be addressing specific concerns in an effective manner.
     If grants are awarded in these areas, the Advisory Committee felt that it was important to set realistic goals for each grant, and yet be willing to take some risks to determine what programs would be most effective in reducing recidivism and guaranteeing due process throughout all stages of the criminal justice proceedings. In order to assure that these goals are met, a rigorous process for awarding and evaluating grants should be established and enforced. Such a process should include:
  • Establishing specific project goals.
  • An objective outside evaluation and/or audit based upon a clear standard of review to determine whether the original goals have been met, and at what price.
  • Evaluation of the ease of replicating the project in other jurisdictions.
  • Evaluation of unanticipated benefits which may result as a by-product of the project.

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1. Providing Training for Attorneys, Administrators and Support Staff
     While some defender organizations provide substantial training, training throughout the defender community continues to be spotty and inadequate. The Advisory Committee believed that broad-based training for all staff — legal and nonlegal — is an ongoing necessity and is key to the delivery of quality, cost-effective defense services. Although 90% of indigent defense appointments are to defender agencies, NIJ, National Assessment Program: Survey Results for Public Defenders, 1990, coordinated assigned counsel panel systems are responsible for a significant number of indigent clients. Obviously, training is an across-the-board necessity for assigned counsel and contract defense providers as well as institutional defenders. New technology, current criminal justice trends and fiscal realities have heightened the need for training and increased the focus areas beyond traditional topics covered in criminal law and procedure.
     Management training has been underemphasized in the defender community. The Advisory Committee viewed management training for both legal and non-legal staff of defender offices as a very high priority. In addition to instruction in such traditional areas as recruitment, training, personnel evaluation, utilization of personnel, budgeting, computerized case management, and statistics, management training should also include some of the formalized techniques of modern project management including, for example, planning, the use of PERT charts or CPM techniques, and time/resource controls, such as Gannt charts. These techniques can also be applied to the preparation of complex case litigation. Other training needs include:

  • Specialized legal training for defender staff and panel lawyers in assigned counsel systems on the defense of drug and violent crimes cases.
  • Training for attorneys, investigators, sentencing advocates and paralegals in dealing with specialized areas of the law such as mental health, juvenile laws, domestic violence, and substance abuse and treatment.
  • Training of attorneys and investigators on new and developing law enforcement technology and forensic sciences.
  • Training of non-legal staff to identify diversion and other programs in the community. (In some offices non-legal personnel act as client service coordinators” to assist the clients in taking advantage of community job assistance, drug and alcohol abuse, and mental health programs.).
  • Training in the use of and uses for modern technology such as interactive video, cable TV, CD ROM, the internet and intranets.
  • Already underfunded, in austere fiscal times training budgets are often further reduced or eliminated. Members believed that this reality meant that emphasis must be placed on making training programs as accessible as possible. NLADA’s regional training programs were regarded as an important aspect of this goal. In addition, the committee suggested that grant funding could assist in establishing projects to (1) “train trainers,” who could then spread instruction to even more geographic areas; (2) make use of video and interactive technology to produce training videos, CD ROMS and other types of readily “exportable” programs that could be accompanied by a written curriculum for use with the programs; and (3) use technology to share information, for example, sharing brief banks, criminal practice manuals and other materials via floppy disks, the internet and other modes of electronic communications.

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2. Updating Standards for Indigent Defense Services
     The Advisory Committee felt that standards which promote both high quality defense services and efficiency are crucial to the effective functioning of the criminal justice system as a whole, and to the adjudicatory function performed by the courts, prosecution, and defense. Such standards are also a critical tool for defenders nationwide in their ongoing battles to secure an adequate share of fiscal resources. The Advisory Committee believed that standards are an important priority but expressed concern that one of the Justice Department's research branches, perhaps NIJ or BJS, might be the more appropriate funding source for developing and promoting updated standards. The need for well-researched, reliable, nationally accepted standards for indigent defense systems was first recognized by the American Bar Association (ABA) when its standards for defender offices were adopted in the late sixties. Thereafter, they were revised by the Law Enforcement Assistance Administration’s National Advisory Commission on Criminal Justice Standards and Goals in 1973. See Task Force on the Courts, Ch. 13, LEAA (1973), and NLADA’s National Study Commission on Defense Service (1976). See also Goldberg, Report of the National Study Commission, NLADA (1976). During the next decade, NLADA developed standards for assigned counsel, appellate defenders, contract defense systems, and death penalty representation.
     The ABA subsequently issued revised versions of its standards. See, e.g., ABA Standards for Criminal Justice Prosecution Function and Defense Function, Third Ed. (1993); Standards for Criminal Justice, Chapter Five: Providing Defense Services, ABA (1990). However, the ever changing landscape in the criminal justice field, including increasingly complex statutory schemes and litigation, have outpaced the standards. Thus, all such national standards, whether by the ABA, NLADA, or other national criminal justice entities, need to be revised and updated to meet the modern needs of institutional defenders, contract defenders and assigned counsel in the nineties and into the twenty-first century. The Advisory Committee identified the following standards as the most critically in need of updating, further development and dissemination. They include:

  • Workload standards which take into account the realities and differences of various types of cases, for example, capital cases, non-capital violent crimes and drug cases.
  • Standards for court-appointed attorney systems, for example, qualifications for stratified attorney panels and payment of vouchers.
  • Standards and qualifications for non-attorney support staff including, among others, investigators, community workers, field representatives and sentencing resources professionals.
  • Existing national standards promulgated and/or adopted by the NLADA, the ABA, the National Study Commission (NSC), and the National Advisory Committee on Criminal Justice Standards & Goals (NACCJS&G) in such areas as training, attorney performance, indigent defense systems, contract and assigned counsel systems.
     Apart from national standards, in a number of states standards have been promulgated by state defender organizations or defender commissions, but that process has not been widespread and should be encouraged in other states. The Committee suggested that the availability of BJA funds to state supreme court administrators, state bar associations, defender associations, criminal justice advisory groups or other appropriate organizations to establish projects aimed at the promotion and passage of defense standards would expedite fulfillment of this need.

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3. Auditing Defender Programs and Providing Technical Assistance
     An essential management tool is the audit or evaluation of the agency. The office audit enables the chief defender or assigned counsel administrator to identify programmatic and operational areas that are not functioning at maximum levels of effectiveness and efficiency. The concomitant ability to request technical assistance in order to suggest the proper procedures or equipment, train staff to use new procedures and/or hardware, and to fine-tune the identified problem areas allows the defender manager as well as county board members or state legislators confidence in the effectiveness and efficiency of the indigent defense agency in their jurisdiction.
     In the search for low cost representation, many jurisdictions have abolished institutional systems and replaced them with low bid contract systems. Other jurisdictions have gone in the opposite direction, placing greater, often unreasonable, requirements on institutional defenders. In both instances nationally recognized standards — that require, for example, lawyers in bond court, early entry into cases, use of investigators, sentencing advocates, and other experts — have been ignored. The committee believed the use of audits, which would measure programs against established standards, could be very useful in both measuring efficiency and guarding against using cost effectiveness as the sole measure of success while sacrificing quality.
     The committee suggested that the BJA could fund a project to explore the creation of a voluntary system of accreditation of indigent defense agencies. A national accreditation program could encourage jurisdictions to request audits and technical assistance, with the knowledge that upon completion of their work, the agency could apply for a certificate of accreditation with, for example, a national indigent defense accreditation commission. This could help insure adherence to nationally recognized standards of excellence, and promote the highest levels of quality and efficiency in criminal justice agencies.
     The Advisory Committee identified the following priority areas related to program audits:

  • Access to consultants or appropriate entities to conduct external audits. Audits can assess agency effectiveness against nationally recognized standards and goals. The focus could be on process (e.g., early contact with the client, investigation of client’s case, motions practice) as well as outcomes (e.g., speed of disposition, type of disposition, length of sentence, alternatives to incarceration).
  • Access to consultants or written, video or audio materials that teach agencies to conduct internal audits covering such topics as cost per case, personnel policies relating to effective recruiting, training, and utilization of personnel. In this regard, consideration should be given to funding an update of the NLADA Self Evaluation Guide to Public Defender Offices, which was published in 1975.
  • Technical Assistance. Such assistance could be provided by organizations that focus on “problem definition” to help identify areas of need and assist agencies with corrective action.
     Apart from the audit arena, the committee identified the following additional priority areas in which technical assistance is needed:
  • The creation of caseload and workload strategies that utilize non-attorney staff, where appropriate, to expand attorney resources and reduce case costs. Examples of particular uses for such staff include the areas of early release planning, diversion programs, alternative sentencing dispositions, and staff training.
  • The development of programs that make use of non-legal volunteers: retirees, college students, criminal justice students, social work students, and others. For example, the public defender office in the District of Columbia uses college student volunteers to provide most of its investigation. The committee believed that funding should be made available to create specific “how to” manuals to enable other agencies to duplicate successful programs.
  • The providing of technical assistance to defender programs on the use of computerized information and case tracking systems. The committee agreed that computerized information and case tracking systems should be utilized by every indigent defense system that requests it. Computer systems may also be used to share case information and research. An example of a program where case information is shared by all members of the trial team through computer is the Neighborhood Defender Service of Harlem in New York City. Perhaps because defender budgets are usually “barebones,” the defender community lags far behind others in the justice system in the use of technology. The committee was unanimously of the view that defenders urgently needed technical assistance to remedy this.

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4. Promoting the Use of Social Service and Other Interdisciplinary Resources
     The social services professional is recognized as an essential partner in the presentation of the defense case, not only in the sentencing area, but in all phases of the criminal justice process. Early intervention by social service providers may result in both time and cost savings to the system. Benefits include possible release on bond into appropriate programs, referrals that divert cases from the court system into treatment programs, early identification of mental and substance abuse problems, and assistance with the development of the defense theories.
     The committee believed systematic efforts should be made to identify offices that have successfully developed and implemented social service community partnerships so that manuals and other technical assistance can be available to agencies wishing to duplicate such programs. Recognizing such programs through special designations might also be helpful so that these offices can serve as models for other indigent defense agencies.
     Some of the pressing needs in the partnership between the law and the social sciences are:

  • Developing special social service resources for defender offices and assigned counsel systems to assist in assessing clients and accessing treatment and/or alternative programs.
  • Training defender and assigned counsel lawyers to utilize forensic experts, e.g. social workers, sentencing advocates, psychologists and psychiatrists.
  • Examining the intake and referral processes of social service agencies for purposes of considering “benchmarks” established by those agencies to assist defender agencies with accessing and handling clients’ mental health and other problems.

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5. Encouraging Community Involvement and Adjudication Partnerships
     The defender office does not exist in a vacuum. It is part of a larger geopolitical community, a criminal justice system in a particular county or state, and a court work group. To survive and to offer better service to its clients, it must interact with all of these communities and groups. The Advisory Committee agreed that there was a need for public defenders to become more client centered and to use a holistic approach towards the needs of the client. However, at the same time there was a need to move beyond the needs of individual clients toward an integrated institutional approach toward the larger criminal justice system and to interface with all components of the system as well as with social service agencies and community groups.
     Exemplary models of interdisciplinary cooperation include county criminal justice committees, committees to address jail overcrowding, boards of half-way houses, substance abuse centers, mental health hospitals, juvenile homes oriented toward treatment, and drug courts. Indigent defense agency directors must be encouraged to be involved in these committees to further the cause of their clients on a policy level, rather than reacting later to a policy set by these bodies which may be detrimental to the interests of the indigent accused. Successful models of adjudication partnerships should be described in project manuals for replication in other jurisdictions. In addition, such programs should be viewed by teams of public defenders and other criminal justice system participants to encourage “technology transfer”. Defenders must also be encouraged to participate in school law programs where defenders can educate the youth of our communities about crime prevention, drug and alcohol abuse, and act as role models for solving the problems of society by access to courts instead of by violence on the streets.
     Historically, defenders have not had the staff and other resources to devote to efforts of the type mentioned above. And it is far too easy for overburdened defenders to give such initiatives low priority. In order to achieve these goals, and to obtain a fair share of federal criminal justice funds for defenders and assigned counsel systems in this area, BJA grants should be made available to programs to support such interagency cooperation with other components of the community. Another suggestion for encouraging such interagency cooperation is to require an interagency component as part of BJA grants awarded to police, prosecutors, courts, correction and defenders.
     In addition, BJA guidelines should require that a local or statewide defender agency representative or assigned counsel administrator serve on state and regional planning boards which administer BJA formula grant funds, set priorities for local BJA program categories, and award specific grants to the criminal justice agencies in their communities.
     Involving the defense component with other actors in the criminal justice system may sometimes result in conflict, instead of harmony. In New York’s Harlem Neighborhood Defender Project, the defender office attempted to represent suspects in the police precincts in advance of court appointment. Although this plan was lauded by public defenders and criminal defense lawyers across America, and recommended in national defender standards, there was local resistance to this “early entry” by prosecutors and police. In fact, prosecution agencies intervened with the police department and succeeded in having the community defenders expelled from the police precincts. This only points up further the necessity of networking with other agencies of the criminal justice system, including police, probation officers, and prosecutors to explain the goals of the defender system and its proper role in society. The defense agency must redouble its efforts to become part of the criminal justice community, in order to provide the highest quality representation for its clients. The Bureau of Justice Assistance can help the indigent defense systems of America to meet that goal, and that help is sorely needed.

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Conclusion
     The specific recommendations outlined above cannot meet all the needs of the indigent defense component of the American criminal justice system, given the major systemic problems. However, they constitute an attempt to allow the indigent defense component to function in a cost-effective and efficient manner while providing the high quality service to the accused guaranteed by our Constitution. The American dream is that all those accused by our system are to be treated with due process and equal protection of the laws. In order for this dream to become a reality, the defense system must be funded as fairly as that of prosecutors, judges, police, and corrections. If not, the fabled “three legged stool” of Justice Burger will topple, and our criminal justice system-the hallmark of our American democratic system-will topple with it. Our society and the Constitution of our Republic demand no less.

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     ©1997 by the National Legal Aid and Defender Association, 1140 Connecticut Ave. NW, Suite 900 , Washington, DC 20036, (202) 452-0620, fax: (202) 872-1031. All rights reserved. This project is supported by grant #94-DD-CX-0146, awarded by the Bureau of Justice Assistance, Office of Justice Programs, U.S. Department of Justice. Points of view in this document are those of the Advisory Committee and do not necessarily represent the official positions or policies of the U.S. Department of Justice.

Order the bound volume of NLADA's Blue Ribbon Advisory Committee on Indigent Defense Services

Order the bound compilation of all of NLADA's Standards

Document Printable version of the blackletter edition. (msword, 68 Kb)

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