NACDL - Inside NACDL: Elevating Public Defense

Inside NACDL: Elevating Public Defense — One Strategy at a Time

As 2016 begins, the public defense crisis remains at full strength. Even as states and counties shirk the responsibility to adequately provide properly resourced defense counsel, it is important to highlight positive initiatives.

Access to The Champion archive is one of many exclusive member benefits. It’s normally restricted to just NACDL members. However, this content, and others like it, is available to everyone in order to educate the public on why criminal justice reform is a necessity.

As another year begins with the public defense crisis unabated, the legal profession, especially the criminal defense bar, must redouble efforts to promote reform. In this vein, it is useful to highlight positive initiatives that can truly make a difference. Even as the nation and its states, counties, and localities continue to shirk the responsibility to adequately provide full access to properly resourced public defense counsel¹ for all who are too poor to retain counsel, it is important to focus on a glass half full.

NACDL has vastly increased its commitment to public defense reform through multiple projects designed to support criminal defense providers. These efforts include the development of manuals to promote more effective pretrial release advocacy and accompanying training programs crafted to elevate practice techniques, direct assistance to defenders in several venues who seek to implement meaningful workload standards, targeted training programs to address local needs, and new research to expose systemic deficiency. Education, legislation, litigation, and agitation are the tools that must be employed expansively to achieve meaningful and lasting reform.

But two projects in particular warrant special mention. One is an NACDL initiative, and another is a multiparty effort supported by a local NACDL affiliate.

Public Defense Scholarships

As discussed in an article in this issue authored by Diane Depietropaolo Price, NACDL’s public defense training manager, NACDL has established an ambitious scholarship program. (See page 47.) The Public Defense Training Scholarship Program is designed to enable attorneys who provide public defense services with access to major national training programs sponsored by NACDL and other major entities.² It is well established that when defender offices are strapped for resources, of necessity the first thing to be cut and the last thing to be funded is training. Client representation must take priority. Similarly, for appointed private counsel, who generally receive paltry compensation and can barely cover their overhead, training programs are a luxury. At the same time, it is undeniable that lawyers who participate in high-level training programs are better able to serve their clients, and often come away from a day or two of focused CLE with renewed energy and enthusiasm. This program seeks to provide that invaluable opportunity to dozens of lawyers who simply cannot afford to participate without outside support. NACDL is determined to meet that need.

The Capital Area Private Defender Service

One of the core tenets of the ABA Ten Principles of a Public Defense Delivery System³is that a public defense system should include the active participation of the private bar. NACDL has a long history of supporting this principle because there are countless reasons that a robust hybrid public defense system should include the private bar. And it is a fact that throughout the country much of public defense is provided by appointed counsel, either through court assignment or under contract to a county or local authority. Sadly, however, all too often appointed counsel programs are very much ad hoc. Many not only fail to provide adequate compensation, but also fail to establish quality standards, do not provide access to essential ancillary services, and fail to provide educational or mentoring support. Travis County (Austin), Texas, has launched a bold program to address these deficiencies.

Three years ago Travis County criminal justice stakeholders came together to establish the Capital Area Private Defender Service (CAPDS).⁴ This was a bold effort to replace an ad hoc system of appointment with a managed assigned counsel program. The goal was to elevate the caliber of practice and enhance resources for assigned counsel. Judges in the Travis County Criminal Court initiated the effort and the Austin Criminal Defense Lawyers Association and the Austin Bar Association supported it. CAPDS received funding from the Texas Indigent Defense Commission, which was established by the Texas Fair Defense Act of 2002 to promote quality representation throughout the state. Under the direction of a Board of Directors⁵ and a Review Committee,⁶ and supported by a core staff,⁷ CAPDS promoted sweeping reform. The first annual report issued by CAPDS demonstrates that those reforms have generated huge dividends that directly redound to the benefit of accused persons.⁸

Among the key reforms implemented by CAPDS were minimum experience requirements, the implementation of a rotational assignment system (as opposed to ad hoc assignments by judges), rigorous screening of panel participants, a formal mechanism to provide independent review of client complaints, minimum CLE requirements for assigned counsel, independent access to experts and investigators without the necessity of obtaining court approval, and the establishment of a mentorship program to foster the development of a new generation of criminal defense lawyers.

To support this initiative and the lawyers who participate in the plan, CAPDS has made a strong commitment to provide training without charging a fee. NACDL provided support to help fulfill that commitment. In May 2015, NACDL public defender staff traveled to Austin to conduct a two-day training for CAPDS attorneys. The program addressed essential client-centered representation tasks required in every case, regardless of whether the matter ultimately ends in plea or trial. Taught by a mixture of excellent nationally recognized faculty and stars of the Texas Bar, attorneys received training in how to build a solid attorney/client relationship; how to investigate and prepare a case for trial, plea, and sentencing; how to deal with special needs, such as immigration consequences and mental health issues; and how to be an effective advocate at all stages. The CLE program was well attended and very well received.

As a consequence of the CAPDS commitment to training and the myriad reforms implemented by the CAPDS program, there has been a dramatic increase in the use of investigators, an unprecedented surge in the requests for immigration experts to assist criminal defense practitioners in addressing the immigration consequences of the criminal charges upon their clients, and a vast increase in the availability of and attorney participation in training programs. One remarkable tangible result of these reforms was a geometric increase not only in the engagement of investigators, but also in the rates of dismissal, reduction in charges, or acquittal in cases in which CAPDS investigators were involved. This is what public defense reform looks like!

But, because even a glass half full is still half empty, it must be noted that the CAPDS attorneys in Travis County are still subject to wholly inadequate compensation. Attorneys are paid a flat fee of $225 when they resolve a misdemeanor and $550 when they resolve a felony. These compensation rates truly make a mockery of the Sixth Amendment right to counsel, and are a serious obstacle to the kind of robust representation that is essential to a heathy criminal justice system. It is well past time for society to recognize that investment in quality counsel provides an incalculable return on investment. Such properly funded counsel can prevent unjust conviction, secure pretrial release so that clients can continue to work and support their families, or secure an outcome that addresses underlying problems that can minimize recidivism — without squandering precious public resources on needless incarceration costs.

Hopefully, the impressive early results achieved by the CAPDS program will persuade government officials that investment in public defense is just as valuable as investment in law enforcement, and far more beneficial than supporting jails and prisons. If nothing else, this innovative program, just like NACDL’s commitment to public defense scholarships, is demonstrable evidence that progress is not only possible, but is very much achievable.

Notes

As of Jan. 1, 2016, NACDL has ceased referring to public defense as “indigent defense.” It is now widely recognized that many criminally accused persons are not “indigent” but nevertheless cannot afford to hire a properly resourced counsel. Indeed, NACDL highlighted this in a report that discussed how unreasonable eligibility criteria may be employed to deprive those who lack the resources to hire counsel with the appointment of a lawyer. Gideon at 50: Part 2 — Redefining Indigence: Financial Eligibility Guidelines for Assigned Counsel (http://www.nacdl.org/reports). Therefore, it is misleading to refer to such counsel as “indigent defense counsel.”
Support for this program has been made possible through generous support from private and public funders, including the Foundation for Criminal Justice and all of its supporters, the Open Society Foundation, Koch Industries, and the Department of Justice Bureau of Justice Assistance.
The ABA Ten Principles are available at http://www.americanbar.org/content/dam/aba/administrative/legal_aid_indigent_defendants/
ls_sclaid_def_tenprinciplesbooklet.authcheckdam.pdf.
An overview of CAPDS is available at http://www.capds.org.
The voting members of the Board of Directors are Betty Blackwell, Alan Bennett, Chris Oddo, David Gonzalez, Hon. Mike Lynch (Ret.), J. Laverne Morris-Parker, and Arnold Garcia. Nonvoting members are Kellie Bailey, Novert Morales, and Sidney Williams.
The Review Committee is comprised of David Sheppard (chair), Sam Bassett, Gerry Morris, Alberto Garcia, Bobby Taylor, Robert Icenhauer-Ramariez, Lindsey Roberts, Randy Leavitt, and Kristin Etter.
The staff is comprised of Ira Davis (executive director), Bradly Hargis (deputy director), Trudy Straussburger (deputy director), Jeanette Frausto (administrative assistant), and Joseph Ward (staff investigator).
Read the annual report at http://www.capds.org/annual-report.html.