1These 10 principles summarize the dominant themes in the most well-established major national standards concerning the government's duty to furnish quality criminal defense services to those who cannot afford to hire an attorney. The standards are referenced in footnotes herein as follows: National Advisory Commission on Criminal Justice Standards and Goals, Report of the Task Force on Courts, Chapter 13, "The Defense" (1973) ("NAC"); National Study Commission on Defense Services, Guidelines for Legal Defense Systems in the United States (1976) ("NSC"); American Bar Association, Standards for Criminal Justice, Providing Defense Services (3rd ed., 1992) ("ABA"); American Bar Association, Standards for Criminal Justice: Prosecution Function and Defense Function (3rd ed., 1993) ("ABA Defense Function"); National Conference of Commissioners on Uniform State Laws, Model Public Defender Act (1970) ("Model Act"); Guidelines for Negotiating and Awarding Contracts for Criminal Defense Services (NLADA, 1984; ABA, 1985) ("Contracting"); Standards for the Administration of Assigned Counsel Systems (NLADA, 1989) ("Assigned Counsel"); Standards and Evaluation Design for Appellate Defender Offices (NLADA, 1980) ("Appellate"); Standards for the Appointment and Performance of Counsel in Death Penalty Cases (NLADA, 1988; ABA, 1989) ("Death Penalty"); Performance Guidelines for Criminal Defense Representation (NLADA, 1995) ("Performance Guidelines").
2NAC 13.8, 13.9; NSC 2.8, 2.18, 5.13; ABA 5-1.3, 5-1.6, 5-4.1; Assigned Counsel 2.2; Contracting II-1, 2; Model Act §10(d).
3NSC 2.10-2.13; ABA 5-1.3(b); Assigned Counsel 3.2.1, 2; Contracting II-1, II-3, IV-2.
4 Judicial independence is "the most essential character of a free society" (American Bar Association Standing Committee on Judicial Independence, 1997).
5 NAC 13.5; ABA 5-1.2. "Defender office" means a full-time public defender office and includes a private nonprofit organization operating in the same manner as a full-time public defender office under a contract with a jurisdiction.
6 ABA 5-1.2(a) and (b); NSC 2.3; ABA 5-2.1.
8 ABA 5-1.2(a) and (b); NSC 2.3; ABA 5-2.1.
9 ABA 5-2.1 and commentary; Assigned Counsel 3.3.1 and commentary n.5 (duties of assigned counsel administrator, such as supervision of attorney work, cannot ethically be performed by a non-attorney, citing ABA Model Code of Professional Responsibility and Model Code of Professional Conduct).
10 NSC 2.4; Model Act §10; ABA 5-1.2(c) ; Gideon v. Wainwright, 372 U.S. 335 (1963) (indigent defense is obligation of state).
11"Counsel" includes a defender office, a criminal defense attorney in a defender office, a contract attorney, or an attorney in private practice accepting appointments.
12 NAC 13.3; ABA 5-6.1; Model Act §3; NSC 1.2-1.4.
14 ABA Defense Function 4-3.2; Performance Guidelines 2.1-4.1.
15 NSC 5.10; ABA Defense Function 4-2.3, 4-3.1, 4-3.2; Performance Guidelines 2.2.
17 NSC 5.1, 5.3; ABA 5-5.3; ABA Defense Function 4-1.3(e); NAC 13.12; NLADA Contracting III-6, III-12; Assigned Counsel 4.1,4.1.2; ABA Model Code of Professional Responsibility DR 6-101 (lawyers' obligation not to take on more cases than they have competence and time to handle).
18 Numerical caseload limits are specified in NAC 13.12 (maximum cases per year: 150 felonies, 400 misdemeanors, 200 juvenile, 200 mental health, or 25 appeals), and other national standards state that caseloads should "reflect" (NSC 5.1) or "under no circumstances exceed" (Contracting III-6) these numerical limits. The workload demands of capital cases are unique: the duty to investigate, prepare, and try both the guilt/innocence and mitigation phases (see NLADA/ABA Death Penalty standards) today requires an average of almost 1,900 hours, and over 1,200 hours even where a case is resolved by a guilty plea. Federal Death Penalty Cases: Recommendations Concerning the Cost and Quality of Defense Representation (Judicial Conference of the United States, 1998).
19 ABA 5-5.3; NSC 5.1; Appellate 1-F.
20 Performance Guidelines 1.2, 1.3(a) ; Death Penalty 5.1.
21 NSC 5.11, 5.12; ABA 5-6.2; NAC 13.1; Assigned Counsel 2.6; Contracting III-12, III-23.
22 NSC 3.4; ABA 5-4.1, 5-4.3; Contracting III-10; Assigned Counsel 4.7.1; Appellate ( Performance). See NSC 4.1 (includes numerical staffing ratios, e.g., there must be one supervisor for every 10 attorneys, or one part-time supervisor for every five attorneys; there must be one investigator for every three attorneys, and at least one investigator in every defender office). Cf. NAC 13.7, 13.11 (chief defender salary should be at parity with chief judge; staff attorneys at parity with private bar).
23 ABA 5-2.4; Assigned Counsel 4.7.3.
24 NSC 2.6; ABA 5-3.1, 5-3.2, 5-3.3; Contracting III-6, III-12, and passim.
25 ABA 5-3.3(b)(x); Contracting III-8, III-9.
26 Defense Function 4-1.2(d); note 19, supra.
27 NAC 13.15, 13.16; NSC 2.4(4), 5.6-5.8; ABA 5-1.5; Model Act, §10(e); Contracting III-17; Assigned Counsel 4.2, 4.3.1, 4.3.2, 4.4.1; NLADA Defender Training and Development Standards (1997).
28 NSC 5.4, 5.5; Contracting III-16 ; Assigned Counsel 4.4. Examples of performance standards applicable in conducting these reviews include NLADA Performance Guidelines, ABA Defense Function, and NLADA/ABA Death Penalty.
31 Guideline 3.4. [In fact, the earliest national standards set the bar even higher, out of concern that prosecutor resources were commonly just as inadequate as defender resources. In 1973, standards for courts and indigent defense systems were promulgated by the National Advisory Commission on Criminal Justice Standards and Goals, which had been appointed by the Administrator of the Law Enforcement Assistance Administration to write standards for all criminal justice agencies to fulfill the standards mandate of the 1967 President's Commission on Law Enforcement and the Administration of Justice. These standards prescribed that chief public defenders should be paid at a rate comparable to the presiding judge of the trial court of general jurisdiction, and compensation for assistant public defenders in their first five years of service should be comparable to that of associates in local private law firms (NAC Chapter 13, "The Defense," Standard 13.7˜Defender to be Full Time and Adequately Compensated; and Standard 13.11˜Salaries for Defender Attorneys). The commentary to both standards also discussed the importance of balance between the ability of the prosecution and the defense to recruit qualified staff.]
32 ABA Standards for Criminal Justice, Providing Defense Services, 5-4.1.
33 Standard 5-4.3 and commentary.
34 Guideline III-10. These contracting guidelines are effectuated in a Model Contract for Public Defense Services, promulgated by NLADA and the American University Criminal Courts Technical Assistance Project in February 2000; section VII(F) and XII provide for parity of compensation for attorneys and support staff.
35 NLADA, 1980 (Personnel Standards).
36 NLADA, 1989, standard 4.7.1.
38 McMann v. Richardson, 397 U.S. 759 (1970); Evitts v. Lucy, 469 U.S. 387, 396 (1985).
39 Philadelphia: J. B. Lippincott Co., 1960.
40 "No matter what the question has been in American criminal justice over the last generation, prison has been the answer." Eric Schlosser, "The Prison Industrial Complex," The Atlantic Monthly, Dec.1998, at 51.
41U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, Sourcebook of Criminal Justice Statistics, Washington, D.C. (1998).
42 Robert L. Spangenberg and Marea L. Beeman, "Indigent Defense Systems in the United States," 58 LAW AND CONTEMPORARY PROBLEMS 31 (Winter 1995).
43 See generally: Stephen B. Bright, "Neither Equal nor Just: The Rationing and Denial of Legal Services to the Poor when Life and Liberty are at Stake," 783 ANNUAL SURVEY OF AMERICAN LAW 836 (1999); and Richard Klein, "The Emperor Gideon Has No Clothes: The Empty Promise of the Constitutional Right to Effective Assistance of Counsel," 13 HASTINGS CONSTITUTIONAL LAW QUARTERLY 625 (1986).
44 Lawrence M. Grosberg, "Illusion and Reality in Regulating Lawyer Performance: Rethinking Rule 11," 32 VILLANOVA LAW REVIEW 575 (1987).
45 The Rampart scandal refers to the widespread planting of evidence and physical intimidation of Los Angeles residents by a high-profile unit within the Los Angeles Police Department. Harvey Weinstein and Jim Newton, "The Rampart Scandal Civil Rights Lawyers Form a Gathering Storm for L.A.," Los Angeles Times, March 1, 2000.
46 61 LAW AND CONTEMP. PROBS. 219 (August 1998).
47 David Bazelon, "The Realities of Gideon and 69 GEORGETOWN L. J. 811 AT 838 (1976).
48 Ken Armstrong and Steve Mills, "Inept Defenses Cloud Verdict," Chicago Tribune, November 15, 1999, Chicago Tribune Internet Edition: wysiwyg://55/http://www.chicagotribune.org/item/0,1308,37842- 0-37872,00.html
51 Barry Scheck, Peter Neufeld, and Jim Dwyer, Actual Innocence (Doubleday, 2000).
52 The American Bar Association and the National Legal Aid and Defender Organization have promulgated national standards for the provision of defense services, which have been adopted by many jurisdictions. They are however, by necessity, general and motivational, providing inspiration rather than specific guidance. See: Criminal Justice Standards Committee of the American Bar Association, Standards for Criminal Justice, Prosecution Function and Defense Function, 3 rd Ed.(1993).
53 Rules to Implement an Indigent Defense Organization Oversight Committee, NEW YORK RULES OF COURT, PART 613, SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
54 Indigent Defense Organization Oversight Committee, General Requirements for All Organizations Providing Defense Services to Indigent Defendants. 1996. Supreme Court of New York Appellate Division, First Department.
55 The Connecticut Civil Liberties Union successfully sued the State of Connecticut on behalf of indigent defendants. The lawsuit was settled, the state agreeing to raise the rates of assigned counsel, to substantially (by 30 percent) increase the funding and staff positions for the regular public defender system, and to adopt training requirements, oversight systems, and specific performance standards for attorneys representing poor people in criminal court. September 1999 letter from the CCLU Legal Director on file with the author.
56 David E. Rovella, "The best defense…Rebuilding clients' lives to keep them from coming back ," THE NATIONAL LAW JOURNAL, January 31, 2000, at 1.
57 Barbara D. Flicker, STANDARDS FOR JUVENILE JUSTICE: A SUMMARY AND ANALYSIS 3 (2d ed. 1982).
58 IJA/ABA, JUVENILE JUSTICE STANDARDS ANNOTATED: A BALANCED APPROACH, xviii-xx (Robert E. Shepherd, Jr., ed. 1996).