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).

Parity: The Fail-safe Standard By Scott Wallace, Director, Defender Legal Services, National Legal Aid and Defender Association

An effort to advance this goal is made in the preceding essay, "The Ten Commandments of Public Defense Delivery Systems." It captures the essence of the major sets of standards compiled in this dense compendium for quick reference by busy defenders, policymakers, and funding authorities.

But one of the commandments is qualitatively different from the others. Most standards throughout the country are written as absolute norms, rather than relativistic ones: There must be adequate funding to ensure independent, quality representation...Individual lawyers should receive reasonable compensation&Staff levels should be projected through detailed resource planning...Defender systems must provide training, supervision, and evaluation...Offices must have adequate computer technology, office space, and legal research capacity...No defender should have excessive caseloads e.g., no more than 150 felonies per year...There should be at least one supervisor for every 10 staff attorneys, and one investigator for every three attorneys.

But what if the application of such standards would make a jurisdiction's public defender system better resourced than other agencies, such as the prosecution or the judiciary? What if, for example, the jurisdiction's prosecutors routinely carry 500 felonies, or the lack of adequate and up-to-date computer systems is a problem experienced by all agencies? Standards describing a fixed norm of "adequate" defender staffing and services would be at risk of being dismissed across the board as unrealistic in such a jurisdiction.

At the other end of the spectrum, what if prosecutor resources are substantially better than the minimum national indigent defense standards e.g., caseloads never exceed 25 felonies per year, and salaries, benefits, space, working conditions, equipment, staffing ratios, and resources for experts and investigations are well above "adequate"? The prosecution then has an advantage in recruiting and retaining competent attorneys, and in preparing and presenting its cases, while the quality of services provided by the public defender's office suffers due to staffing disruptions and shortages, a seniority- or competence-gap with the prosecutor's office, and the draining of additional resources to recruit, train, and retain a higher volume of short-term staff. Adherence to fixed norms of indigent defense standards would throw the adversarial system of criminal justice fundamentally out of balance, to the detriment of indigent individuals facing criminal charges.

This is why all major national indigent defense standards contain a core, fail-safe, relativistic commandment: that there should be parity of resources between public defense and prosecution.

The U.S. Department of Justice endorsed the concept of parity in the same year that Gideon v. Wainwright was handed down. Because the adversary system demands a "constant, searching and creative questioning of official decisions and assertions of authority at all stages of the process," the Attorney General's Committee on Poverty and the Administration of Federal Criminal Justice found in its 1963 final report that "the proper performance of the defense function is thus as vital to the health of the system as the performance of the prosecuting and adjudicatory functions."

And when Gideon's mandate was extended to misdemeanors in 1972, in Argersinger v. Hamlin, Chief Justice Burger wrote in his concurring opinion that "society's goal should be 'that the system for providing the counsel and facilities for the defense should be as good as the system which society provides for the prosecution'" (citing ABA Standards Relating to Providing Defense Services).

All the national standards developed over the past quarter century contain explicit statements of parity. The Guidelines for Legal Defense Systems in the United States, promulgated over several years by the National Study Commission on Defense Services in the mid-1970's with Justice Department support, direct that, in order to attract and retain qualified personnel, salaries for all staff should "in no event be less than" those paid for comparable positions in the prosecutor's office. The guidelines also provide that other resources and facilities should similarly be "not less than that provided for other components of the justice system with which the defender must interact, such as the courts, prosecution and the police."

Standards developed by the American Bar Association similarly provide, "The chief defender and staff should be compensated at the rate commensurate with their experience and skill sufficient to attract career personnel and comparable to that provided for their counterparts in prosecutorial offices." Commentary to the standards discusses the example of parity set by the federal system, and indicates that the purpose is to avoid a recruitment and retention disadvantage vis-à-vis prosecutorial offices. The ABA standards similarly call for parity in technology and access to legal research tools or a law library.

Other major national indigent defense standards have similar provisions. The standards regarding contract defender offices, the Guidelines for Negotiating and Awarding Governmental Contracts for Criminal Defense Services, adopted by NLADA in 1984 and by the ABA in 1985, provide that all "staff, employees, subcontractors and retained forensic experts must be compensated at rates commensurate&with compensation paid to persons doing similar work in public agencies in the jurisdiction." Salary parity is also directed for appellate defenders in Standards for Appellate Defender Offices. For private attorneys appointed to represent indigent individuals, the Standards for the Administration of Assigned Counsel Systems direct that compensation shall be "reasonable" and "at a rate commensurate with that paid for other contracted government legal work (e.g., work contracted for by attorneys general, county legislatures, or commissions, etc.) or with prevailing rates for similar services performed by retained counsel in the jurisdiction." Commentary to these standards stresses that "market" compensation for privately retained defense counsel remains the preferred rate.

Guidance from the U.S. Department of Justice has reinforced these principles. Attorney General Janet Reno has often stated her belief in the principle of a level playing field. "Our criminal justice system is interdependent," she stated at the Department's National Symposium on Indigent Defense in February 1999. "If one leg of the system is weaker than the others, the whole system will ultimately falter." The final report of the symposium, published by the Justice Department, discusses resource parity in the context of the ABA and NLADA national standards, and concludes that

Salary parity between prosecutors and defenders at all experience levels is an important means of reducing staff turnover and avoiding related recruitment/training costs and disruptions to the office and case processing. Concomitant with salary parity is the need to maintain comparable staffing and workloads the innately linked notions of "equal pay" for "equal work." The concept of parity includes all related resource allocations, including support, investigative and expert services, physical facilities such as a law library, computers and proximity to the courthouse, as well as institutional issues such as access to federal grant programs and student loan forgiveness options.

(Improving Criminal Justice Systems Through Expanded Strategies and Innovative Collaborations: Report of the National Symposium on Indigent Defense, Bureau of Justice Assistance, U.S. Department of Justice, March 2000, at 14).

The DOJ report's statements relating to comparability of staffing and workloads, and various "related resource allocations," are essential adjuncts to the concept of salary parity. If an assistant public defender receives the same total compensation as her counterpart in the district attorney's office, but is expected to do twice as much work, with half as much support whether in terms of secretaries, paralegals, investigative services, computers, or access to legal research the adversarial scales are still out of balance. Parity must embrace comparability of both resources and workload. Additionally, comparability of workload may vary from jurisdiction to jurisdiction, depending on factors such as prosecutorial declination or plea bargaining policies, rates of indigency among defendants, and the complexity of the law or the existence of statutory provisions requiring more defense work or discouraging negotiated dispositions, such as mandatory minimum sentences, inflexible sentencing guidelines, three-strikes laws, or sexual civil-commitment or capital cases.

The DOJ report discusses in greater detail the implementation of parity in several jurisdictions, including the states of New Mexico and Connecticut, and the federal system. A NLADA salary survey presented at the DOJ symposium indicated that many larger public defender programs do have salary parity.

But significant challenges remain. Salary parity remains the exception rather than the rule, especially among smaller programs. And salary parity is just one small part of overall parity of resources and workload, which is even more elusive.

Ironically, though the federal system has been a leader in terms of salary parity, federal policymakers in Congress and the executive branch to this day are prone to creating serious imbalances in the way federal money is allocated to assist state and local criminal justice systems.

One such problem area is student loan forgiveness. Since 1990, state and local government employees who are "essential" to the enforcement of the criminal law have been eligible for forgiveness of one important type of student financial assistance for undergraduate and graduate education: the Perkins student loan program (second only in size to the Stafford loan program). The Department of Education extended the forgiveness program to prosecutors, but refused NLADA's request to include indigent defenders as well, expressing the view that defenders are not "essential" to the enforcement of the criminal law. The department's letter did not discuss the U.S. Supreme Court's holding to the contrary in Gideon v. Wainwright, 372 U.S. 335 (1963). Bipartisan legislation has now been introduced in both houses of Congress to correct this imbalance.

Another problem area is federal support for training. In the mid-1990s, Congress spent $26 million building the National Advocacy Center in Columbia, South Carolina, to train federal prosecutors, and subsequently began appropriating some $5 million annually to train local prosecutors there as well. A similar college in Reno, Nevada, for training state and local judges also receives substantial federal funding. There is no counterpart for training state and local indigent defense providers. As Attorney General Reno told the Second National Symposium on Indigent Defense in June 2000, "Public defenders need access to training resources to the same degree that federal, state, and local prosecutors have the same."

In a third area relating to parity, new proposals are from time to time put forward by the executive branch and Congress to directly fund the hiring of state and local prosecutors in order to prosecute particular types of crimes in the news and public consciousness. For example, two proposals debated in 1999 provided for states to receive $150 million to hire prosecutors to handle gun-related offenses and offenses by juveniles, and Congress appropriated $100 million for fiscal year 2001 to allow states to hire "community prosecutors." Though the amounts of proposed federal support are very substantial, the proposals never include matching funds for the constitutionally mandated provision of legal representation services in the new cases which will be filed by the new prosecutors.

Attorney General Reno told the June 2000 Indigent Defense Symposium, "We have to ensure that we provide the same level of support and oversight for indigent defense services that we provide for other agencies and functions, or our criminal justice system will not be a system and it won't work."

The enduring symbol of the criminal justice system is the scales of justice. They embody the adversarial balance between the awesome power of the government to forfeit a person's liberty, property, or life, and the fundamental rights of individuals to have such penalties exacted from them only upon proof beyond a reasonable doubt in a fair proceeding, with the assistance of counsel possessed of the competence and resources to test the government's evidence and insist upon all the trappings of due process. Giving the prosecution greater resources than the defense tilts the scales toward the government and away from individual rights. Reserving this disadvantage for the poor calls into question the system's integrity and fairness, and ultimately its very legitimacy. The requirement of parity embodies and helps safeguard the adversarial balance.

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