Adherence of Public Defense Providers to the ABA Ten Principles

Abstract

This report provides an initial snapshot of the degree to which public defense providers are able to adhere to the ABA Ten Principles of Public Defense (see Appendix A), relevant issues their jurisdictions have been encountering in their efforts to adhere to each of the Principles (see Appendix B), and areas for which technical assistance might be useful.

The report is based on the results of a survey of state and local public defense providers conducted by American University (the Justice Programs Office of the School of Public Affairs) in partnership with the National Legal Aid & Defender Association (NLADA) in early 2014. Recipients of the survey were identified through multiple sources entailing state by state web searches and inquiries to courts, county government agencies, and state and local public defense offices. The survey was conducted as part of the Bureau of Justice Assistance (BJA) Public Defense Technical Assistance Project designed to provide technical assistance services to public defense providers to promote their ability to adhere to the Ten Principles. The project is a component of BJA’s FY2013 national initiative: Answering Gideon’s Call: National Assistance to Improve the Effectiveness of Right to Counsel Services.

The survey was sent to 1,151 public defense providers in all 50 states plus the District of Columbia in January 2014, with responses received from 386 public defense providers in all states plus the District of Columbia (See Chart I). Although 386 public defense providers responded to the survey, they did not consistently answer all of the survey questions completely. No pattern was readily discernable that might explain which questions some respondents were more inclined to answer than others except that they may have required information that was not readily available to the respondent. The number of responses received for each question is therefore noted and factored into the overall response rate reported.
Survey responses were analyzed in aggregate as well as by type of system, size of jurisdiction, nature of caseload handled, and size of office based on the number of full time attorneys reported, and the size of the jurisdiction served by the respondents’ offices. The first two categories, however, did not prove useful for analysis because, as noted below, a high proportion of the respondents were from government public defender offices and most respondents handled a wide array of case types.

In addition to analyzing the degree to which respondents indicated their ability to adhere to the Ten Principles, comparison was made with their reported responses to their perceived ability to comply with operational benchmarks provided in the Commentary for each of the Principles. Invariably, the degree to which respondents perceived that they were able to adhere to each of the Principles was significantly higher than their reported ability to comply with the associated operational benchmarks.

It should be noted at the start that the survey responses reflect the comments of a very small slice of those involved with the provision of public defense services and, in fact, there is no central source for identifying all those who are providing public defense services, let alone overseeing the various organizational structures within which they are functioning or the nature of services they are providing. As Chart II indicates, 75.64% of the respondents were working in publicly funded organized defender offices because these entities were easiest to identify when the distribution list for the survey was being developed. Many attorneys working as assigned counsel in jurisdictions without organized assigned counsel offices could not be identified and therefore were omitted from the survey distribution.

Given this limitation, however, the survey responses provide a significant message:
• Most public defense providers do not fully understand what is entailed in adhering to the Ten Principles, as indicated by the disconnects between their reported “adherence” to each Principle and their reported ability to meet the operational benchmarks designated in the Commentary to the Principles and, related

• The ability of public defense providers to meet the operational benchmarks for each Principle in many instances depends upon the larger systemic framework in which their office operates, rather than actions they can take on their own.

It is therefore critical that efforts to promote adherence to the Ten Principles focus on two audiences:
(1) On public defense providers in terms of the nature and level of services actually required to adhere to each principle; and
(2) On the a broader group of policy makers and community stakeholders who are in a position to ensure that the systemic structure required to enable public defense providers to implement the Principles is, in fact, in place in their state and local jurisdictions.

Among the other findings emerging from the survey were the following:
• Approximately half of the respondents reported that they had no significant familiarity with the Ten Principles before receiving the survey
• Overall, most respondents reported being able to adhere to Principles One, with lesser degrees of adherence to Principles Three, Four, Six, Seven and Nine, and greatest greater difficulty in adhering to Principles Two, Five, Eight and Ten. However, there was wide divergence between respondents’ self-reported adherence to the Ten Principles and their ability to achieve the operational benchmarks associated with each Principle – e.g., to put the Principles into practice;
• The analysis by size of office indicated that offices with twenty-one to thirty full time attorneys appeared to have the most difficulty in adhering to the Ten Principles. Offices with offices with smaller and larger numbers of attorneys consistently reported higher rates of adherence, regardless of their answers to the benchmark questions.
• Analysis by size of jurisdiction indicated little variation in terms of the ability of public defense providers to adhere to the Ten Principles.
• There are a variety of issues public defense providers are facing in terms of adhering to the Ten Principles reportedly stemming mainly from lack of funding, understaffing, and heavy caseloads but which appear to be also the result of the absence of both an adequate infrastructure – including essential management data -- to address these issues as well as an overall systemic structure -- promoting independence and adequate resources --in which they can be addressed.
• At the same time, there is tremendous creativity underway in many offices, documented in “effective practices” respondents reported that are promoting achievement of the Ten Principles, including, for example, the use of video conferencing, development user-friendly informational materials for defendants (e.g., “frequently asked questions memos” and informational pamphlets), brown bag lunches for attorneys, improved office management practices (case weighting, case tracking and monitoring, information sharing (brief banks, forms, etc.) and, in some cases, union activity.

Two additional caveats to note relevant to analysis of the survey responses:
First: the pressing issues of overload and dysfunction in which many of the survey respondents are functioning, including:
• The increasing criminalization of offenses that has occurred in many jurisdictions over the past years; and
• Inefficiencies and consequent resource implications in many local justice systems, particularly on the pretrial process where decisions regarding release, diversion, and dismissal for appropriate cases need to be made as soon as possible following arrest – rather than extending for the lengthy period, with multiple hearings and continuances, that unnecessarily presently burden public defense providers as well as the entire justice system, not to mention the defendants.

Second: the fact, as noted above, that the majority (approximately 75%) of respondents to the survey were from organized public defender offices with very few from contract and assigned counsel systems – which, anecdotally, are considered to represent a significant percentage of the delivery systems used for providing indigent defense services. This anomaly is undoubtedly a reflection on the difficulty experienced in identifying public defense providers to whom the survey could be sent and the much greater prominence of organized defender offices in the information sources tapped. Developing mechanisms for reaching assigned counsel providing public defense services – particularly those in unmanaged systems -- will clearly be an urgent and critical task for the project’s technical assistance and training efforts.
The report is presented in two parts:

Volume One provides a summary of the responses of the 386 public defense providers who responded to the survey, including an overview of the public defense “environments” in which they worked and the degree to which they reported adhering to each of the Ten Principles as well as being able to achieve the operational benchmarks provided for each of the Principles in the ABA’s supporting Commentary; and

Volume Two provides supporting materials respondents provided relating to issues their respective jurisdictions were presently addressing relevant to their ability to adhere to each of the Ten Principles and achieve the associated operational benchmarks, including practices they had found effective; and references to websites that include sample forms, caseload standards, and other operational tools relevant to tasks and capabilities referenced in the Principles and Commentary.