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Board of Directors ~ 2/17/2018

Concerning Public Defender Selection 

New Orleans
February 17, 2018

Introduction

Fundamental to a strong public defense delivery system1 is leadership2 at the federal, state, and local levels who value, and support the vital role defenders play in our criminal justice system. These leaders must have sufficient independence to assure they operate free from interference, fear of retribution, or conflicting interests and must be able to zealously and effectively advocate for their clients, their attorneys and staff, and the defense function. The vast majority of public defense delivery systems are overseen by, or fall within, the purview of a government agency. As a result, decisions regarding the selection, retention, and removal of public defender leaders, and at times the very operation of the office or agency, may rest within the control of those whose primary responsibilities and loyalties are not to the defense function or the clients which they serve.

Independence of the Defense Function

The means by which states discharge their responsibilities under the Sixth Amendment are varied. Consequently, there are a multitude of methods by which the leaders of individual public defense offices and state-wide public defense agencies are selected, retained, and removed. Oversight for the defense function frequently falls into either the executive or judicial branch, with members of those branches playing various roles in the oversight, funding, staffing, and operations of public defense services.

However, the defense’s role is to be a zealous and devoted advocate for its clients, a check on the government and a challenger to the actions and decisions of the judiciary and prosecution. In order to fulfill these vital functions the defense and its administrators must maintain independence. Thus, it is vital that the decisions of public defense leaders regarding the operation3 of their offices and agencies be insulated from control by actors who may have or who may be perceived as having interests directly or indirectly adverse to the defense.

Decisions relating to the selection, retention, and removal of public defender leadership must be made without consideration of political party affiliation and must be free from political influence and partisan politics.

Leading a public defense delivery system necessarily requires advocacy within the political system, as well as the courtroom. Leaders of public defense organizations and agencies must not be punished for seeking the funding and staffing required to deliver effective and constitutionally adequate public defense services or for advocating for or against policies that directly or indirectly impact the defense function or the clients the defender organization represents. 

Qualifications of Public Defense Leaders

As a substantial percentage of those accused of crimes rely upon court-appointed counsel, the public defense system is the core of the criminal defense function. Whether a local office with one attorney or a vast organization with more than 500 lawyers, a state-wide public defender system or an agency that oversees a network of contract and assigned counsel programs, these institutions ensure the robust adversarial process required to effectuate the constitutional guarantees of due process and the right to a fair trial.

Those chosen to lead public defense organizations must possess the skills that allow them to be effective advocates for the defense function as well as for the clients entrusted to their organization’s care. At a minimum this requires a working knowledge of local, state, and national standards relating to public defense such as the American Bar Association’s Ten Principles of a Public Defense Delivery System and an understanding and appreciation of the importance of maintaining reasonable workloads and the ethical rules relating to workload management. A public defense leader must demonstrate deep understanding of issues impacting the criminal justice system and the provision of defense services such as racial bias, immigration and collateral consequences of convictions, pretrial release and bail advocacy, challenges to forensic science, and alternatives to arrest, conviction, and incarceration.

Public defense leaders should have a demonstrated commitment to:

  • High quality, effective, and zealous advocacy on behalf of public defense clients;
  • Confronting, addressing, and working to eliminate racial disparity and bias in the criminal justice system;
  • Promoting and supporting high standards in individual advocacy on behalf of clients and/or for the operation of public defense systems; and
  • Advocating for the public defense function within the relevant governance structure to secure necessary funding, staffing, resources, and organizational independence.
Areas of Consideration in the Selection of Public Defense Leaders

As public defense attorneys are called upon to represent clients in court proceedings, consideration should be given to identifying public defense leaders who have direct experience representing clients at the trial, appellate, and/or post-conviction level and, in nearly every circumstance, lack of any direct criminal defense litigation experience should disqualify an individual from consideration.

As public defense attorneys are called upon to be advocates for members of the community consideration should be given to promoting public defense leaders who have demonstrated a comprehensive understanding of the needs of the community they will be serving.

As public defense attorneys are frequently called upon to represent special populations with specific needs, consideration should be given to identifying public defense leaders who have experience addressing the unique needs of youth, veterans, those with mental health and substance abuse issues, and individuals with intellectual and developmental disabilities.

As some public defense offices and agencies require additional skills such as developing and managing budgets and lobbying legislative bodies, consideration should be given to public defense leaders who have experience with these tasks.

Qualifications of Those Selecting Public Defense Leaders

Those directly involved in the selection, retention, and removal of public defense leaders should have a commitment to assuring high quality representation of the accused consistent with the Sixth Amendment, national and state standards for criminal defense representation, state and local criminal defense performance standards, and state ethics rules and should select public defense leaders who uphold these values.

Those directly involved in the selection, retention, and removal of public defense leaders should represent the diversity of the community the public defense provider will be serving. It is not appropriate for active members of the judiciary or representatives from agencies with a directly or indirectly adversarial relationship with the defense function, including prosecutors, law enforcement officers, or probation/parole officers, to play a role in these decisions. All hiring committees must include individuals with experience in criminal defense and public defense.

Resolution

WHEREAS the National Association of Criminal Defense Lawyers (NACDL) supports the ABA Ten Principles of a Public Defense Delivery System, the first of which requires that “[t]he public defense function, including the selection, funding, and payment of defense counsel, is independent”;

WHEREAS independent and effective leadership of public defender offices and agencies is vital to assuring those accused receive the zealous and effective representation the Constitution requires; and

WHEREAS those directly involved in the selection, retention, and removal of public defense leaders have a vital role to play in ensuring the independence of the defense function;

BE IT RESOLVED THAT the National Association of Criminal Defense Lawyers endorses the following three Principles regarding the selection, retention, and removal  of public defender system leadership:

  1. Public defense leadership, management, and operations  should be independent and insulated from control by actors whose interests may be directly or indirectly adverse to the public defense function;
  2. Public defense leadership, management and operations should have a demonstrated commitment to and experience in:
    1. Delivering high quality, effective, and zealous advocacy on behalf of public defense clients;
    2. Confronting, addressing, and working to eliminate racial disparity and bias in the criminal justice system;
    3. Promoting and supporting high standards in individual advocacy on behalf of clients and/or for the operation of public defense systems; and
    4. Advocating for the public defense function within the relevant governance structure to secure necessary funding, staffing, resources, and organizational independence.
     
  3. Those directly involved in the selection, retention, and removal of public defense leadership, management, and operations should be committed to the public defense function and should represent the diversity of the community served by the public defense provider.

Notes

1 Public defense delivery systems include individual federal, state, regional, and local defender offices employed directly by the government as well as community defender offices and not-for-profit criminal defense organizations that provide trial, appellate, post-conviction, and/or capital representation to those accused of crime.

2 Public defense leadership includes those entrusted to serve as the head of any local, regional, state, federal or tribal public defense office or public defense delivery system.

3 This includes the day-to-day operations of the office or agency, assignment of cases, courtrooms and dockets, hiring and termination decisions regarding individual public defender employees, and office or agency policies, procedures and practices.

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