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 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,⁽¹⁾

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.⁽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⁾

2. 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⁾

3. 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⁾

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.⁽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⁾

5. 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⁾

6. 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⁾

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.⁽²¹⁾ 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.⁽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⁾

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.⁽²⁷⁾

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.⁽²⁸⁾

Read explanation of Background of the Ten Commandments, by James Neuhard.

Back to Standards