| B. What States Should Do |
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Compliance with the Constitution Recommendation 1—States should adhere to their obligation to guarantee fair criminal and juvenile proceedings in compliance with constitutional requirements. Accordingly, legislators should appropriate adequate funds so that quality indigent defense services can be provided. Judges should ensure that all waivers of counsel are voluntary, knowing, intelligent, and on the record, and that guilty pleas are not accepted from accused persons absent valid waivers of counsel. Prosecutors should not negotiate plea agreements with accused persons absent valid waivers of counsel and should adhere to their duty to assure that accused persons are advised of their right to a lawyer. Commentary—First and foremost, this report is about implementing the right to counsel guaranteed to accused persons under the Sixth Amendment to the United States Constitution.[3] For this Constitutional requirement to be implemented effectively, adequate funding of defense services is indispensable.[4] Our recommendations begin, therefore, with the fervent request that those responsible for assuring that defense services are provided do what is necessary to make sure that the right to counsel is honored. This means that legislators must appropriate sufficient funds for indigent defense and that judges and prosecutors must discharge their duties in compliance with decisions of the United States Supreme Court and their ethical responsibilities. A recent opinion column published in a Portland, Maine, newspaper succinctly summarized the problem of indigent defense funding in state legislatures. Noting that Maine’s Legislature was not providing sufficient financial support for indigent defense, the writer explained: “This issue is not going to get the attention it deserves from the Legislature because it has come up at a time when budgets are being cut, not increased…. [A]nd there is not political muscle behind indigent defense.” Then, comparing indigent defense with health care for senior citizens and education, the writer concluded: “But the difference is, none of those programs is required by the U.S. Constitution. According to the Supreme Court, indigent defense is, so failing to meet that responsibility is against the law.”[5] The ABA’s Model Code of Judicial Conduct requires that judges “uphold and apply the law, and … perform all duties of judicial office fairly and impartially.”[6] Among the many responsibilities of judges is the duty to make certain that no waiver of counsel is accepted unless it is “voluntary, knowing, intelligent, and on the record.” Moreover, no guilty plea should be accepted from an accused unless there has been a valid waiver of the right to counsel. Not only are these requirements of U.S. Supreme Court decisions,[7] but also the duty is often spelled out in court rules or in statutes.[8] Yet, this report and other studies point to evidence that judges do not always take the necessary steps, especially in misdemeanor cases, to assure that all waivers of counsel are in fact valid.[9] Because of concerns about waiver of counsel, the ABA has long recommended steps that go well beyond this Recommendation and constitutional requirements. The ABA urges that judges not accept waivers of counsel unless the accused has spoken to a lawyer and that judges renew the offer of counsel at each new stage of the proceedings when the accused appears without counsel.[10] In discussing the role of the United States Attorney, the U.S. Supreme Court in 1935 spelled out basic precepts to guide prosecutors that are as important today as when they were written. The prosecutor’s responsibility in a criminal case, the Supreme Court noted, “is not that it shall win a case, but that justice shall be done…. But while he may strike hard blows, he is not at liberty to strike foul ones.”[11] The Supreme Court’s admonition is expressed today in the ABA Model Rules of Professional Conduct, which have been adopted in states throughout the country.[12] In explaining the Special Responsibilities of a Prosecutor, the Comment section notes that prosecutors have “the responsibility of a minister of justice and not simply of an advocate.”[13] This means that prosecutors must take steps to assure that “the defendant is accorded procedural justice and that guilt is decided upon the basis of sufficient evidence.”[14] In addition, the black-letter provisions of the Model Rules prohibit prosecutors from “seeking waivers of … important pretrial rights from unrepresented accused persons,”[15] which obviously includes the right to counsel. Specifically, respecting the right to an attorney, the Model Rules require that prosecutors “make reasonable efforts to assure that the accused has been advised of the right to, and the procedure for obtaining, counsel and has been given reasonable opportunity to obtain counsel.”[16] Yet, evidence is cited in this report[17] and in other studies[18] that prosecutors sometimes seek waivers of counsel from and negotiate plea agreements with unrepresented indigent persons. When unrepresented defendants plead guilty pursuant to negotiations with prosecutors, the prosecutors likely have violated their duty “not [to] give legal advice to an unrepresented person, other than the advice to secure counsel,” as required by the Model Rules.[19] Accordingly, the Committee recommends that prosecutors neither engage in securing waivers of counsel nor negotiate plea agreements with persons who have not validly waived their rights to legal representation. Independence Recommendation 2—States should establish a statewide, independent, non-partisan agency headed by a Board or Commission responsible for all components of indigent defense services. The members of the Board or Commission of the agency should be appointed by leaders of the executive, judicial, and legislative branches of government, as well as by officials of bar associations, and Board or Commission members should bear no obligations to the persons, department of government, or bar associations responsible for their appointments. All members of the Board or Commission should be committed to the delivery of quality indigent defense services, and a majority of the members should have had prior experience in providing indigent defense representation. Commentary—This recommendation embodies fundamental cornerstones for establishing a successful program of public defense. Thus, the Committee recommends that public defense programs be “independent,” organized at the state level, and that members of the program’s governing Board or Commission, with authority “for all components of indigent defense,” be appointed by a diverse group of officials and organizations. The need for independence has been repeatedly stressed in national reports and standards dealing with public defense. The first of the ABA’s Ten Principles of a Public Defense Delivery System, approved in 2002, calls for “the selection, funding, and payment of defense counsel … [to be] independent.”[20] In fact, the call for independence was embodied in the first edition of standards dealing with Providing Defense Services, approved by the ABA in 1968.[21] Independence also was stressed by the National Study Commission on Defense Services, organized by the National Legal Aid and Defender Association, which in 1976 issued a lengthy report and numerous recommendations dealing with all aspects of indigent defense.[22] It is exceedingly difficult for defense counsel always to be vigorous advocates on behalf of their indigent clients when their appointment, compensation, resources, and continued employment depend primarily upon satisfying judges or other elected officials. In contrast, prosecutors and retained counsel discharge their duties with virtually complete independence, subject only to the will of the electorate in the case of prosecutors and to rules of the legal profession. Judges, moreover, do not select or authorize compensation for prosecutors or for lawyers retained by persons able to afford an attorney’s fee. At a minimum, judicial oversight of the defense function creates serious problems of perception and opportunities for abuse. What is needed are defense systems in which the integrity of the attorney-client relationship is safeguarded and defense lawyers for the indigent are just as independent as retained counsel, judges, and prosecutors. The system most frequently recommended to achieve this goal includes an independent Board or Commission vested with responsibility for indigent defense.[23] In a number of states, this recommendation has been effectively implemented, as noted earlier in this report.[24] The reason for having a number of different officials appoint the Board or Commission is to reduce the likelihood that members of the governing board may feel in some way beholden to the persons or organizations responsible for their appointment. To guard against this possibility, the Committee recommends that “Board or Commission members should bear no obligations to the persons, department of government, or bar associations responsible for their appointments.” It is also preferable if no single person or organization is authorized to appoint a majority of the Board or Commission members.[25] In some states, for example, the governor appoints a majority of the commission or board members,[26] but this approach is not recommended. The kinds of persons to be appointed to the statewide Board or Commission are not specified, except for providing that “all [appointees] should be committed to the delivery of quality indigent defense services, and a majority of the members should have had prior experience in providing indigent defense representation.”[27] The recommendation, therefore, does not preclude service on Boards or Commissions by judges and active indigent criminal defense practitioners. But while such persons may, in fact, make important contributions to the work of the governing body, including advocating effectively on behalf of adequate indigent defense appropriations and explaining to the public the importance of defense counsel in our adversary system of justice, it is important that they remain vigilant, respecting possible conflicts of interest, and that they not intrude upon the independence of the defense function.[28] The recommendation also calls for defense services in each state to be organized on a statewide basis.[29] Only in this way is it possible to assure that the quality of defense services throughout the state is substantially the same. Experience demonstrates that there is virtually certain to be wide variations in the quality of services if each county or other jurisdictional subdivision is able to structure defense services in a way that it deems best. On the other hand, organizing defense services at the state level enables management of the defense function to be centralized, promotes the equitable distribution of resources, and provides improved cost effectiveness. The agency should also be “responsible for all components of indigent defense,” which should include not only those kinds of cases in which counsel is extended as a matter of constitutional right, but also to cases where the state requires counsel to be provided, even though not constitutionally required.[30] Finally, a statewide agency with responsibility for all components of indigent defense establishes a permanent mechanism for achieving many of the vital objectives of an effective public defense delivery system, including: Establishing qualification standards for appointment of counsel; Assisting in the development of eligibility standards for the appointment of counsel and ensuring that persons are screened to ensure their eligibility for counsel; Matching attorney qualifications with the complexity of cases; Tracking caseloads, as well as monitoring and evaluating attorney performance; Developing and providing training for all in persons in the state who provide indigent defense services, including both entry-level attorneys and advanced practitioners; Offering access to technology and vital resources and support services; and Providing an important voice in the political sphere by serving as an advocate in support of indigent defense. Recommendation 3—The Board or Commission should hire the agency’s Executive Director or State Public Defender, who should then be responsible for hiring the staff of the agency. The agency should act as an advocate on behalf of improvements in indigent criminal and juvenile defense representation and have the authority to represent the interests of the agency before the legislature pertaining to all such matters. Substantial funding for the agency should be provided by the state from general fund revenues. Commentary—One of the most important responsibilities of the Board or Commission is to retain the Executive Director or State Public Defender, who should have broad responsibilities for the administration of indigent defense services in the state pursuant to policies established by the agency’s governing authority. Although not specifically mentioned in the recommendation, consistent with other standards in this area, the Executive Director or State Public Defender should be appointed for a fixed term and not be subject to removal except for good cause.[31] Among the chief duties of the agency’s head should be hiring the agency’s staff.[32] This person, however, will likely want to consult with the Board or Commission respecting hiring procedures, as well as many other critical administrative matters. In every state, the cause of indigent defense requires persistent and articulate advocates to speak both in support of reforms to enhance the fairness of the justice system and address the need for adequate funding of the defense function. The latter is especially important because the indispensable role of defense counsel in the adversary system of criminal and juvenile justice is not always appreciated or fully understood by the public and legislators. While the head of the statewide agency should be a leading spokesperson on behalf of indigent defense and systemic reform, members of the agency’s governing body should also be involved in such efforts. As noted earlier, there are now 28 states in which all, or almost all, of the funding for indigent defense is provided by the state’s central government.[33] Moreover, statewide programs generally tend to be better financed than indigent defense systems funded through a combination of state and county funds.[34] But in recent years, in a number of states, special fines, taxes, and assessments have been imposed frequently either against indigent defendants, who are the least able to afford the expense, or others as a means of covering the state’s indigent defense budget.[35] Because such charges can sometimes chill the exercise of the right to counsel and serve as an excuse for the legislature not to appropriate sufficient funds for indigent defense, the recommendation provides that “[s]ubstantial funding for … [indigent defense] should be provided by the state from general fund revenues.” States Without a Board or Commission Recommendation 4—In states that do not have a statewide, independent, non-partisan agency responsible for all components of indigent defense services, a statewide task force or study commission should be formed to gather relevant data, assess its quality as measured by recognized national standards for the delivery of such services, and make recommendations for systemic improvements. The members of the task force or study commission should be appointed by leaders of the executive, judicial, and legislative branches of government, as well as by officials of bar associations, and task force or study commission members should bear no obligations to the persons, departments of government, or bar associations responsible for their appointments. Commentary—The second recommendation of this report expresses the Committee’s strong preference for “a statewide, non-partisan agency, headed by a Board or Commission … responsible for all components of indigent defense services.” Although this approach has been embraced by a number of states, the movement toward centralized state control of indigent defense overseen by a board or commission is by no means complete, as structures of this kind do not exist in a majority of states.[36] Accordingly, the Committee recommends that in states without such statewide programs, there should be “a statewide task force or study commission” for gathering data and assessing the quality of the state’s indigent defense system against national standards for the delivery of indigent defense services. This approach often has served as the forerunner to establishment of a statewide indigent defense agency headed by an independent board or commission, as discussed earlier in this report.[37] To assure independence of the undertaking, the Committee recommends the same procedure for selecting members of the task force or commission as specified in Recommendation 2, for the selection of members of a permanent statewide indigent defense board or commission. Qualifications, Performance, and Supervision of Counsel Recommendation 5—The Board or Commission should establish and enforce qualification and performance standards for defense attorneys in criminal and juvenile cases who represent persons unable to afford counsel. The Board or Commission should ensure that all attorneys who provide defense representation are effectively supervised and remove those defense attorneys who fail to provide quality services. Commentary—No system of public defense representation for indigent persons can be successful unless the lawyers who provide the representation are capable of rendering quality representation. Regardless of whether assigned counsel, contract attorneys, or public defenders provide the defense services, states should require that the attorneys be well qualified to do so. A tiered system of qualifications for appointment to different levels of cases, depending on the training and experience of the lawyers, will help to ensure that the defender has the requisite knowledge and skills to deliver high quality legal services, whether the charge is juvenile delinquency, a simple misdemeanor, or a complex felony.[38] A meaningful assessment of attorney qualifications, however, should go beyond objective quantitative measures, such as years of experience and completed training. States should also implement other more substantive screening tools, including audits of prior performance, in-court observations, inspection of motions and other written work, and peer assessments.[39] In assessing attorney qualifications, the use of performance standards such as those developed by the National Legal Aid and Defender Association can be quite useful.[40] It is not sufficient, however, just to make sure that attorneys who provide defense services are qualified when they begin to provide representation. It is also essential that they be supervised during the early years of their careers as indigent defense counsel, whether they serve in a public defender agency or other program for indigent defense. The oversight called for in this recommendation should not be undertaken by members of the Board or Commission, but rather by experienced staff of the agency or members of the bar with whom there are special arrangements to provide supervision or assessments.[41] In addition, there should be procedures for removal from the list of lawyers who may serve as assigned counsel or contract attorneys.[42] The ABA has long called for procedures to remove from the roster of lawyers who provide legal services “those who have not provided quality representation.”[43] More recently, the ABA specifically endorsed procedures for removal of unqualified lawyers from the list of defense lawyers who provide representation in capital cases.[44] Workload Recommendation 6—The Board or Commission should establish and enforce workload limits for defense attorneys, which take into account their other responsibilities in addition to client representation, in order to ensure that quality defense services are provided and ethical obligations are not violated. Commentary—The most well trained and highly qualified lawyers cannot provide “quality defense services” when they have too many clients to represent, i.e., when their “caseload” is excessively high. It is critical, moreover, that in addition to caseload, an attorney’s other responsibilities (e.g., attendance at training programs, administrative matters, etc.) be considered in assessing an attorney’s overall “workload.” Accordingly, the Committee urges that workload limits, which take caseload into account, be established and enforced for all attorneys furnishing indigent defense representation. Similarly, the ABA Ten Principles call for the workload of defense counsel to be “controlled to permit the rendering of quality representation.”[45] This objective is among the most important in this report, since excessive caseloads in public defense is a pervasive national problem.[46] As a result, indigent defense counsel are frequently unable to render “competent” representation to their clients as required by rules of professional conduct,[47] let alone provide “quality” services as recommended in ABA standards[48] and in this report. Although national annual caseload standards have been cited for many years and both the ABA and the American Council of Chief Defenders have indicated that the numbers of cases in these standards should not be exceeded,[49] the determination of the numbers of cases that a lawyer should undertake during the course of a year must necessarily be a matter of assessment. This point was emphasized in an ethics opinion in 2006 issued by the ABA Standing Committee on Ethics and Professional Responsibility, which made clear that there could be no “mathematically set number of cases a lawyer may handle as an ethical norm.”[50] Ultimately, responsibility for a lawyer’s ethical conduct rests with the independent professional judgment of the individual attorney and cannot be determined by policies regarding caseloads, by a contract with a governmental body, or by the directions of a supervisor.[51] Obviously, a lawyer’s annual caseload must take into account a wide variety of factors, such as the extent of support services, especially including investigators and paralegals, complexity of the cases, the extent of the lawyer’s experience, the speed at which cases proceed through the courts, and the lawyer’s other duties as a professional. The issue of workload is important not only to public defenders but also to assigned counsel and to private attorneys who provide services pursuant to contracts. In the case of private attorneys, this should include oversight of the extent of their private practice in order to ensure that they have adequate time to devote to their indigent cases.[52] The goal should be to make sure that all attorneys who provide defense services have adequate time to devote to their cases and are thus able to meet established performance standards for each client’s case, including fulfilling basic responsibilities related to interviewing the client, conducting investigations, discovery and motions practice, trial preparation, sentencing, and post-conviction matters. This Recommendation should be read in conjunction with Recommendation 14, which deals with the duties of defense lawyers and defender programs faced with excessive numbers of cases. Also, Recommendation 15 addresses the duties of judges, prosecutors, and defense lawyers to report to disciplinary agencies knowledge of serious ethical violations. Compensation Recommendation 7—Fair compensation should be provided, as well as reasonable fees and overhead expenses, to all publicly funded defenders and for attorneys who provide representation pursuant to contracts and on a case-by-case basis. Public defenders should be employed full time whenever practicable and salary parity should be provided for defenders with equivalent prosecution attorneys when prosecutors are fairly compensated. Law student loan forgiveness programs should be established for both prosecutors and public defenders. Commentary—The compensation paid to defenders, as well as the fees provided through contracts and to assigned counsel on a case-by-case basis, often discourages well qualified lawyers from representing the indigent and adversely impact the quality of services provided by those who do. In defender offices, low salaries contribute to high turnover and difficulty in recruiting experienced and skilled attorneys. Inadequate compensation of court-appointed lawyers and contract attorneys contributes to lawyers accepting a high volume of cases that can be disposed of quickly as a way of maximizing income and may serve as a disincentive to invest the essential time required to provide quality representation. To avoid these kinds of problems, the ABA urges “reasonable” compensation for defense counsel and, similar to the above standard, “parity between defense counsel and the prosecution in resources….”[53] This recommendation also calls for all salaried public defenders to be employed full time “whenever practicable.” The Committee’s recommendation is largely consistent with the approach of the ABA[54] and the National Study Commission,[55] while recognizing that, in some jurisdictions. there may be especially rural areas in which full-time defenders may not make sense. Overall, however, the Committee believes that full-time defenders are more likely to have sufficient time to develop the requisite knowledge and skills necessary to provide quality legal services while avoiding the temptation to devote a disproportionate amount of time to paying clients. Also, funding sources cannot use the prospect of defenders acquiring retained clients as a justification for keeping defender salaries unreasonably low. Because of high student loan indebtedness, recent law school graduates are sometimes discouraged from applying for positions in public interest law, including serving as prosecutors and defenders.[56] Recently, Congress enacted legislation that includes “loan forgiveness,” pursuant to which law graduates who work as public defenders and prosecutors may have a portion of their student loans forgiven.[57] This legislation is much needed and will assist the states in attracting recent law graduates to serve as defense attorneys and prosecutors.[58] But the need for loan forgiveness is enormous, and thus, the Committee recommends that states also adopt and fund loan forgiveness legislation for the benefit of prosecutors and defense lawyers. Adequate Support and Resources Recommendation 8—Sufficient support services and resources should be provided to enable all defense attorneys to deliver quality indigent defense representation, including access to independent experts, investigators, social workers, paralegals, secretaries, technology, research capabilities, and training. Commentary—“Support services and resources,” as well as “training,” are indispensable if attorneys are to provide quality defense representation. In their absence, criminal and juvenile proceedings become fundamentally unfair. Yet, an enormous disparity exists between the resources available to prosecutors, who can draw upon police and state law enforcement agencies, and those furnished to public defenders, assigned counsel, and contract attorneys. Providing defense lawyers with resources such as “independent experts,[59] investigators, social workers, paralegals, secretaries, technology, [and] research capabilities” not only creates a more level playing field between prosecution and defense, but also is substantially more efficient than asking overburdened defenders to somehow compensate for their absence. Professionally trained and experienced investigators, for instance, can conduct factual investigations at lower expense than attorneys, while freeing attorneys to devote their time to other important tasks, such as filing motions, communicating with their clients, and preparing for court appearances.[60] Training is another of those requirements essential for providing quality service as defense attorneys.[61] Not only must those serving as defense counsel possess the requisite knowledge, especially in countless and sometimes complex subject areas of criminal and juvenile law that are not covered in law schools, but they also need to hone their advocacy skills in order to be effective in representing their clients. Training is especially important when lawyers begin their service as counsel for the indigent, just as new policemen and firemen must undergo training before they begin serving to protect the public. As in other areas of law practice, training of defense lawyers should continue throughout their careers, whether they are serving as public defenders, assigned counsel, or contract attorneys.[62] Eligibility and Prompt Assignment Recommendation 9—Prompt eligibility screening should be undertaken by individuals who are independent of any defense agency, and defense lawyers should be provided as soon as feasible after accused persons are arrested, detained, or request counsel. Commentary—Consistent with this recommendation, the ABA has long recommended that lawyers “be provided to the accused as soon as feasible and, in any event, after custody begins, at appearance before a committing magistrate, or when formal charges are filed, whichever occurs earliest.”[63] As discussed earlier in this report, the U.S. Supreme Court recently reaffirmed the proposition that the Sixth Amendment right to counsel “attaches” when the accused is brought to court for an initial judicial hearing regardless of whether the prosecutor is aware of the proceeding.[64] In the vast majority of states, in the District of Columbia, and in the federal courts, counsel is made available for the indigent accused before, at, or just after the initial court appearance.[65] In order to provide defense counsel as soon as feasible in accordance with this Recommendation, “prompt eligibility screening” is essential. It is also highly desirable that screening be undertaken pursuant to uniform written standards used throughout the jurisdiction.[66] An agency with authority to administer indigent defense services statewide, as urged in Recommendation 2, is in a position to adopt uniform eligibility standards for the state. Uniformity also helps states predict future costs of the state’s indigent defense program while enhancing the public trust of the state’s justice system. It is also important to focus on the persons who conduct eligibility screening. This Recommendation urges that all such screening be conducted by persons “who are independent of any defense agency.” A recent national report on eligibility screening in indigent defense sums the matter up this way: “Conflict of interest concerns, confidentiality rules, and harm to the attorney-client relationship all caution against screening by either the defender or the public defender program that represents a particular client. As a practical matter, many public defender programs do screen their own clients, but as an ethical matter, they should not.”[67] The report then provides illustrations of defenders inappropriately limiting their caseloads through the use of strict eligibility standards and notes the risk that defenders and defender programs are sometimes tempted to reject cases because they appear to be time-consuming or unpopular, or for other reasons. Instead of screening by defenders, it makes far better sense for screening to be conducted by court personnel or by individuals employed by a pretrial services agency. Reclassification Recommendation 10—In order to promote the fair administration of justice, certain non-serious misdemeanors should be reclassified, thereby reducing financial and other pressures on a state’s indigent defense system. Commentary—A significant way in which the need to provide defense counsel can be reduced is by reclassifying certain non-serious misdemeanors as civil infractions, for which defendants are subject only to fines. If the potential for incarceration of the accused is eliminated, counsel need not be furnished under the Sixth Amendment.[68] There are a number of examples in which states have reclassified offenses, typically involving violations where incarceration was rarely sought or imposed,[69] but there are undoubtedly other situations in which the approach is feasible. Not only does such action reduce crowded court dockets, freeing up the time of judges and prosecutors to devote to more serious matters, but it also decreases jail costs. Moreover, it lightens defender caseloads, permitting savings to be used to fund other defense expenses. Additional civil fines collected in lieu of jail time are also a revenue source. Data Collection Recommendation 11—Uniform definitions of a case and a consistent uniform case reporting system should be established for all criminal and juvenile delinquency cases. This system should provide continuous data that accurately contains the number of new appointments by case type, the number of dispositions by case type, and the number of pending cases. Commentary—Among the most vexing problems in indigent defense are predicting the number of lawyers needed to provide quality representation in all cases eligible for the appointment of counsel, as well as the costs of additional personnel such as investigators, paralegals, and expert witnesses. If a public defense system is organized on a statewide basis, as urged in Recommendation 2, the state agency is able to gather uniform data throughout the state, thereby enabling annual budget projections to be based upon “the number of new appointments by case type, the number of dispositions by case type, and the number of pending cases” that typically remain open at the end of a fiscal year. For instance, Louisiana’s legislation enacted in 2007, which established a statewide public defense system, provides that the agency’s governing board shall ensure that “data, including workload, is collected and maintained in a uniform and timely manner throughout the state to allow the board sound data to support resource needs.”[70] But even a “uniform case reporting system,” as the Committee recommends, will not be successful unless there also are “uniform definitions of a case,” which will ensure that the reported data is consistent throughout the state. To remedy this kind of deficiency, at least one state has required, by statute, uniform case standards for reporting purposes.[71] If possible, the definition of a case adopted for the defense should be consistent with the definition used by prosecutors within the state, thereby facilitating comparisons between prosecution and defense caseloads.[72] . [3] The duty of governments under the Constitution to provide defense services for the indigent is explained in detail in this report. See infra notes 6–55 and accompanying text, Chapter 1,. [4] The wide range of problems in indigent defense due to inadequate financial resources is set forth in Chapter 2. [5] Greg Kesich, Criminal Defense Costs Could Be the State’s Next Crisis, Portland Press herald, December 17, 2008. [6]ABA Model Code of Judicial Conduct R. 2.2 (2007), available at http://www.abanet.org/judicialethics/ ABA_MCJC_approved.pdf. [7]See supra notes 47–52 and accompanying text, Chapter 1. [8]See, e.g., Fla. R. Crim. P. 3.111(d); Md. Rule 4-215(b); Pa. R. Crim. P. 121. For a statute that deals with waiver of the right to counsel, see Or. Rev. Stat. § 135.045(c) (2007). [9]See supra notes 207–08, 226–35, and accompanying text, Chapter 2. See also ABA Gideon’s Broken Promise, supra note 108, Chapter 2, at 24–26. [10]ABA Providing Defense Services, supra note 58, Chapter 1, at 5-8.2. [11]Berger v. United States, 295 U.S. 78, 88 (1935). [12]See supra notes 80–85, Chapter 1. [13] ABA Model Rules, supra note 67, Chapter 1, at R. 3.8 cmt. 1. [14]Id. [15] ABA Model Rules at R. 3.8 (c). [16] ABA Model Rules at R. 3.8 (b). ABA Standards provide that, at an initial court appearance, a prosecutor “should not communicate with the accused unless a waiver of counsel has been entered, except for the purpose of aiding in obtaining counsel or in arranging for the pretrial release of the accused.” ABA Prosecution Function, supra note 228, Chapter 2, at 3-3.10 (a). [17]See discussion at supra notes 227–235 and accompanying text, Chapter 2. [18] ABA Gideon’s Broken Promise, supra note 108, Chapter 2, at 24. [19] ABA Model Rules, supra note 67, Chapter 1, at R. 4.3. [20]ABA Ten Principles, supra note 70, Chapter 1, at Principle 1. See also ABA Providing Defense Services, 5-1.3, supra note 58, Chapter 1, at 5-1.3. NLADA Guidelines for Legal Defense Systems, supra note 1, Chapter 2, at 2.10. [21] “The plan should be designed to guarantee the integrity of the relationship between lawyer and client. The plan and the lawyers serving under it should be free from political influence and should be subject to judicial supervision only in the same manner and to the same extent as are lawyers in private practice.” ABA Minimum Standards for Criminal Justice, Standards Relating to Providing Defense Services, 1.4 (1st ed. 1968). [22] “Whether organized at the state, regional, or local level, the goal of any system for providing defense services should be to provide uniformly high quality legal assistance through an independent advocate.” NLADA Guidelines for Legal Defense Systems, supra note 1, Chapter 2, at 145 (emphasis added). [23] “An effective means of securing professional independence for defender organizations is to place responsibility for governance in a board of trustees. Assigned-counsel and contract-for-service components of defender systems should be governed by such a board.” ABA Providing Defense Services, supra note 58, Chapter 1, at 1, 5-1.3(b); ABA Ten Principles, supra note 1, Chapter 1, at Principle 1 cmt: “To safeguard independence and to promote efficiency and quality of services, a nonpartisan board should oversee defender, assigned counsel, or contract systems.” See also NLADA Guidelines for Legal Defense Systems, supra note 1, Chapter 2, at 2.10. [24]See supra Table II, Chapter 4, p. 151. [25] Consistent with this approach, the NLADA National Study Commission on Defense Services urged that “[n]o single branch of government should have a majority of votes on the commission.” NLADA Guidelines for Legal Defense Systems, supra note 1, Chapter 2, at 2.10(c). [26] This approach is followed, for example, in Missouri and Oklahoma. Montana’s governor also appoints commission members but must follow certain requirements, such as selecting from among candidates submitted by the state supreme court, the president of the state bar, and the houses of the legislature. Kentucky’s governor appoints five of the nine members, two with no restrictions, two appointed from a list submitted by the Kentucky Bar Association, and one appointed from a list supplied by the Kentucky Protection and Advocacy Advisory Board. See ABA/TSG Indigent Defense Commissions, supra note 1, Chapter 4, at Appendix A. [27] The Committee’s recommendation can be contrasted with those of the NLADA National Study Commission on Defense Services: “A majority of the Commission should consist of practicing attorneys.” NLADA Guidelines for Legal Defense Systems, supra note 1, Chapter 2, at 2.10(e). Similarly, ABA Providing Defense Services, supra note 58, Chapter 1, at 5-1.3(b) provides that “[a] majority of the trustees on boards should be members of the bar admitted to practice in the jurisdiction.” [28] The ABA recommends that “[b]oards of trustees … not include prosecutors or judges.” ABA Providing Defense Services, 5-1.3(b). The commentary to this black-letter provision explains: “This restriction is necessary in order to remove any implication that defenders are subject to the control of those who appear as their adversaries or before whom they must appear in the representation of defendants, except for the general disciplinary supervision which judges maintain over all members of the bar.“ See also NLADA Guidelines for Legal Defense Systems, at 2.10(f): “The commission should not include judges, prosecutors, or law enforcement officials.” See also the discussion of prosecutors serving on statewide commissions at supra Chapter 4, p. 175. [29] Currently, 27 states have a centralized state agency for administering either entirely or substantially trial-level indigent defense services. See supra notes 2–10, Table II, and accompanying text, Chapter 2. [30]See supra note 31 and accompanying text, Chapter 1. [31]See ABA Providing Defense Services, supra note 58, Chapter 1, at 5-4.1; National Guidelines for Legal Defense Systems, supra note 1, Chapter 2, at 2.11(f). [32] This is the approach most commonly used among the states. For example, Montana’s new statute authorizes the state director for defense services to hire or contract for the necessary personnel. See ABA/TSG Indigent Defense Commissions, supra note 1, Chapter 4, Appendix A. But see LA. Rev. Stat. Ann § 15:150(A), which gives the Public Defender Board the authority to hire not only the director of the office but also the senior management team. See also supra notes 86–87 and accompanying text, Chapter 4. [33]See supra notes 29–30, Table I, and accompanying text, Chapter 2. [34]Compare Table I at supra note 28, Chapter 2, with ABA/TSG FY 2005 State and County Expenditures, supra note 44, Chapter 2. [35]See The Spangenberg Group Report, Public Defender Application Fees: 2001 Update (2002), available at http://www.abanet.org/legalservices/downloads/sclaid/indigentdefense/ [36]See supra notes 2–21, 100–02, Table II, and accompanying text, Chapter 4. As reflected in Table II, there are only 19 states that have a state public defender or a state director, as well as an oversight board or commission with responsibility for indigent defense throughout the state. [37]See supra note 119 and accompanying text, Chapter 4. [38] The same concept has been embraced by the ABA: “Defense counsel’s ability, training, and experience should match the complexity of the case.” ABA Ten Principles, supra note 70, Chapter 1, at Principle 6, n.21. [39] Recommendations of the American Bar Association (ABA) pertaining to death penalty representation contain provisions related to attorney qualifications and monitoring of attorney performance. See ABA Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases (2003) [hereinafter ABA Death Penalty Guidelines] Guidelines 5.1 and 7.1. England also has developed extensive procedures for monitoring the performance of private lawyers who provide representation in criminal legal aid. See Lefstein, Lessons from England, supra note 57, Chapter 1, at 899–900. [40]See NLADA Performance Guidelines, supra note 72, Chapter 1. [41] This is consistent with recommendations of the ABA, which urge that Boards overseeing the defense function be responsible for establishing policy of the agency but “precluded from interfering in the conduct of particular cases.” See ABA Providing Defense Services, supra note 58, Chapter 1, at 5-1.3. [42] Removal from a list of lawyers eligible to receive appointments is different than the situation when a defense lawyer seeks to withdraw from a case. Normally, court approval to withdraw from an assigned case is required. See infra notes 92–93 and accompanying text. [43] “The roster of lawyers should periodically be revised to remove those who have not provided quality legal representation or who have refused to accept appointments on enough occasions to evidence lack of interest. Specific criteria for removal should be adopted in conjunction with qualification standards.” See ABA Providing Defense Services, supra note 58, Chapter 1, at 5-2.3(b). [44] “Where there is evidence that an attorney has failed to provide high quality legal representation, the attorney should not receive additional appointments and should be removed from the roster. Where there is evidence that a systemic defect in a defender office has caused the office to fail to provide high quality legal representation, the office should not receive additional appointments.” ABA Death Penalty Guidelines, supra note 39, 7.1 (c). [45] “Defense counsel’s workload is controlled to permit the rendering of quality representation.” ABA Ten Principles, supra note 70, Chapter 1, at Principle 5. The commentary distinguishes workload from caseload in that workload is “caseload adjusted by factors such as case complexity, support services, and an attorney’s nonrepresentational duties.” Id. at cmt. [46]See supra notes 105–24 and accompanying text, Chapter 2. [47] “A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” ABA Model Rules, supra note 67, Chapter 1, at R. 1.1. The requirement of “competent representation” has been accepted by state rules of professional conduct throughout the country. The ABA’s rules are the model for ethics rules for almost all states. See http://www.abanet.org/cpr/mrpc/model_rules.html [48] “The objective in providing counsel should be to assure that quality legal representation is afforded to all persons eligible for counsel pursuant to this chapter. The bar should educate the public on the importance of this objective.” ABA Providing Defense Services, supra note 58, Chapter 1, at 5-1.1. [49] “National caseload standards should in no event be exceeded….” ABA Ten Principles, supra note 70, Chapter 1, at Principle 5 cmt. The same position has been adopted by the American Council of Chief Defenders. See also supra notes 81–90, Chapter 1; and supra notes 96–107, Chapter 2. [50] ABA Formal Op. 06-441, supra note 86, Chapter 1. [51] However, if an attorney and supervisor disagree about whether competent representation has been or can be provided to the client, and the matter is “arguable” as a matter of professional duty, the attorney does not violate his or her professional duty in complying with a supervisor’s “reasonable resolution” of the matter. See ABA Model Rules, supra note 67, Chapter 1, at R. 5.2 (b). [52] Although the work of most private defense lawyers who serve as assigned counsel is not monitored, there are a few notable exceptions in which there is some oversight. For example, in Massachusetts, the Committee on Public Counsel Services (CPCS), which is the state’s agency for providing indigent defense services, makes an effort to evaluate the services of assigned counsel. Also, the CPCS imposes strict limitations on the numbers of cases for which assigned counsel can be compensated during the year. Also, assigned counsel may only be compensated for 1800 billable hours of service per year. See Lefstein, Lessons from England, supra note 57, Chapter 1, at 909–10. [53] ABA Ten Principles, supra note 70, Chapter 1, at Principle 8. [54] “Defense organizations should be staffed with full-time attorneys. All such attorneys should be prohibited from engaging in the private practice of law.” ABA Providing Defense Services, supra note 58, Chapter 1, at 5-4.2. [55]NLADA Guidelines for Legal Defense Systems, supra note 1, Chapter 2, at 2.9. [56]See ABA Commission on Loan Repayment and Forgiveness, Lifting the Burden: Law Student Debt as a Barrier to Public Service (2003), available at http://www.abanet.org/legalservices/downloads/lrap/lrapfinalreport.pdf. [57] The College Cost Reduction and Access Act, Pub. L. No. 110-84, § 401 (2007). [58]See generally Philip G. Schrag, Federal Loan Repayment Assistance for Public Interest Lawyers and Other Employees of Governments and Nonprofit Organizations, 36 Hofstra L. Rev. 27 (2007). [59] The constitutional basis for furnishing experts on behalf of the indigent is discussed at supra notes 33–36, Chapter 1, and accompanying text. [60] The importance of support services is emphasized in prior standards related to defense services. See, e.g., ABA Providing Defense Services, supra note 58, Chapter 1, at 5-1.4; NLADA Guidelines for Legal Defense Systems, supra note 1, Chapter 2, at 3.1. [61] Training has been emphasized in prior standards related to indigent defense. “Counsel and staff providing defense services should have systemic and comprehensive training appropriate to their areas of practice and at least equal to that received by prosecutors.” ABA Ten Principles, supra note 70, Chapter 1, at Principle 9, cmt. See also ABA Providing Defense Services, 5-1.5; NLADA Guidelines for Legal Defense Systems, 5.7–5.8. [62] Forty-two states currently require some form of mandatory continuing legal education for all attorneys, not just for lawyers practicing in the area of criminal defense. See Summary of MCLE Jurisdiction Requirements, available at http://www.abanet.org/cle/mcleview.html. [63] ABA Providing Defense Services, supra note 58, Chapter 1, at 5-6.1. [64]See supra notes 39–40 and accompanying text, Chapter 1. [65]Rothgery v. Gillespie County, 128 Sup. Ct. 2578, 2586 (2008). [66]See Brennan Center for Justice, Eligible for Justice: Guidelines for Appointing Defense Counsel at 6–8 (2008) available at http://brennan.3cdn.net/c8599960b77429dd22_y6m6ivx7r.pdf. This report recommends that “screening for eligibility must compare the individual’s available income and resources to the actual price of retaining a private attorney. Non-liquid assets, income needed for living expenses, and income and assets of family and friends should not be considered available for purposes of this determination…. [P]eople who receive public benefits, cannot post bond, reside in correctional or mental health facilities, or have incomes below a fixed multiple of the federal poverty guidelines should be presumed eligible for state-appointed counsel.” Id. at 2. The ABA recommends, and the great majority of states provide, that the test to qualify for appointed counsel is whether the person is financially capable, without substantial financial hardship, of retaining a private attorney. See ABA Providing Defense Services, supra note 58, Chapter 1, at 5-7.1 and accompanying Commentary. [67]Brennan Center for Justice, Eligible for Justice, supra note 66, at 10. [68]See supra notes 22–26 and accompanying text, Chapter 1. [69] For example, between 1971 and 2001, 25 states decriminalized sodomy and the state supreme courts in 10 other states ruled that their statutes were unconstitutional. In 2003, the U.S. Supreme Court effectively ruled that sodomy statutes in 15 states were unconstitutional. Starting with the passage of the 21st Amendment in 1933, which left decisions to criminalize alcohol to state and local control, there has been a steady decriminalization of alcohol sales and use. Many aspects of gambling also have been decriminalized over the years, as states now often operate lotteries or allow casinos and off-track betting. Darryl Brown, Democracy and Decriminalization, 86 Tex. L. Rev. 223, 235 (2007). See also Kara Godbehere Goodwin, Is the End of the War in Sight: An Analysis of Canada’s Decriminalization of Marijuana and the Implications for the United States War on Drugs, 22 Buff. Pub. Int. L. J. 199 (2004). See also supra notes 140–50 and accompanying text, Chapter 2. [70] La. Rev. Stat. Ann. § 15-148 (B) (f) (11) (Supp. 2009). [71] A Tennessee statute provides as follows: “District attorneys general shall treat multiple incidents as a single incident for purposes of this statute when the charges are of a related nature and it is the district attorney general’s intention that all of the charges be handled in the same court proceeding. If a case has more than one charge or count, then the administrative office of the courts shall count the case according to the highest class of charge or count at the time of filing or disposition….” T.C.A. 16-1-117 (a) (1) (2008). [72] Standardized definitions for felony and misdemeanor cases have been recommended. See State Court Guide to Statistical Reporting, National Center for State Courts 67–68 (n.d.), available at http://www.ncsconline.org/D_Research/csp/StCtGuide_StatReporting_Complete_ |