Standards for the Delivery of Public Defense Services

Standards help defense attorneys, indigent defense systems, and states and counties know what is required of them to provide the right to counsel services guaranteed by our Constitution.  The strong pressures placed on public officials by favoritism, partisanship, and profits all underscore the need for standards to assure fundamental quality in all facets of government and all components of the justice system.  Using standards to assess uniformity and quality of performance is not unique to the field of indigent defense.  For instance, realizing that standards are necessary to both compare bids equitably and to assure quality products, policymakers long ago stopped merely taking the lowest bid to build a hospital, school, or bridge, and instead require that minimum quality standards of safety always be met.  So too must there be an absolute minimum level of quality that must always be met when providing defense services, whether to the rich or to the poor.  Ensuring the rights of the individual against the undue taking of his liberty by the state can merit no less consideration.

The use of national standards of justice in this way also reflects the demands of the United States Supreme Court in Wiggins v. Smith, 539 U.S. 510 (2003), and Rompilla v. Beard, 545 U.S. 374 (2005).  In Wiggins, the Court said that national standards, including those promulgated by the American Bar Association (ABA), have for decades been referred to as “guides to determining what is reasonable” in assessing ineffective assistance of counsel claims.  National standards define competency not only in the sense of the attorney’s personal abilities and qualifications, but also in the systemic sense that the attorney practices in an environment where she is provided the time, resources, independence, supervision, and training to effectively carry out her charge to adequately represent her clients.  Rompilla echoes those sentiments, noting that the ABA Standards for Criminal Justice describe the obligations of defense counsel “in terms no one could misunderstand.”

Compliance with indigent defense standards can play a substantial role in:

  • Keeping defender workloads manageable, which allows adequate preparation of cases, earlier entry and disposition, and avoidance of unnecessary jail costs pending appointment and disposition;
  • Adequate staffing in defender offices of both attorneys and lower-cost non-attorney staff such as paralegals, social workers, investigators and law clerks, which enables time to properly assess the treatment needs of clients and place them in appropriate programs designed to reduce recidivism and protect public safety;
  • Maintaining adequate levels of funding and salaries in defender offices, such as through parity with prosecution funding, which reduces staff turnover and its attendant costs;
  • More uniform quality of public defense services, higher client satisfaction and acceptance of case outcomes, and reduced appeals and reversals;
  • Reducing the risk of litigation caused by problems such as excessive workloads, lack of confidential meeting space, untimely appointment of counsel, lack of representation at critical stages of litigation, or lack of continuous representation;
  • Matching attorneys’ levels of skill, training and experience to cases of corresponding complexity and severity.
  • Improved and more systematic supervision, evaluation and promotion of attorneys according to clearly articulated performance benchmarks;
  • More uniform fiscal and management controls, although the greatest improvements in fiscal management and case tracking/time management require investment in technology resources;
  • Efficiencies that result from standardizing indigent defense practices and procedures, sharing and networking technology and information systems (benefits which extend to courts and prosecution when the three entities are networked together), and pooling of buying power;
  • Relieving the judiciary of responsibility for administering the process of selecting and compensating attorneys, reviewing expenses, and handling complaints from clients, families, prosecutors and other court participants;
  • Improved coordination and planning capability among the courts, public defense, prosecution and other criminal justice agencies; and
  • Eliminating practices such as ad hoc judicial selection and compensation of defenders, clients being “handed off” from one attorney to another at different stages of a case, attorneys accepting cases which they lack the time or qualifications to handle, and flat-fee or low-bid contracting.

(David Carroll and Scott Wallace, Implementation and Impact of Indigent Defense Standards (December 2003), Award No. 1999-IJ-CX-0049, National Institute of Justice, Office of Justice Programs, United States Department of Justice.)

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Publication Date: 2010