Commentary.

• Jurisdiction: United States
• Author: Lefstein, Norman
• Date: 22 June 2010

Good morning, ladies and gentlemen. I am delighted to be here and to have the opportunity to comment on my colleagues' remarks. I also welcome the chance to share with you my perspectives about indigent defense in the United States and here in Missouri.

Adele Bernhard talked about the need for standards, especially performance standards, and I agree with her about the importance of such standards. (1) In fact, there are all kinds of standards in this country dealing with indigent defense. But the truth is they often do not make much difference because frequently defense lawyers lack the capability to represent their clients adequately due to excessive caseloads, lack of adequate support services, and other shortcomings. (2)

The National Legal Aid and Defender Association (NLADA) has developed the most detailed performance standards for providing defense services. (3) But performance standards do not ensure that quality representation is provided, let alone representation that complies with professional responsibility requirements of competence and diligence. (4) To illustrate, the Nevada Supreme Court entered an order on January 4, 2008, which provides as follows: "It is hereby ordered that the public defenders in Clark County and Washoe County shall advise the county commissioners of their respective counties when they are unavailable to accept further appointment based on ethical considerations relating to their ability to comply with the performance standards contained in Exhibit A to this order." (5) The performance standards adopted in Nevada are modeled after those recommended by NLADA and are substantially similar. (6) Although implementation of this order initially was delayed, some months later, the Nevada Supreme Court declared that the standards are fully applicable. (7) Yet the caseloads in Clark and Washoe Counties remain exceedingly high and the defenders in these counties have not taken any action to protest their caseloads by either asking that assignments be halted or that withdrawal from representation be permitted. (8) And that unfortunately is the story throughout much of the United States today, as few defenders and defense programs challenge their caseloads despite their being wholly unreasonable.

Phyllis Mann talked about federal support of defense services among the fifty states and referred to the national symposium on indigent defense held in February 2010 in Washington, D.C. (9) It is gratifying that U.S. Attorney General Eric Holder has spoken out strongly about the need to improve indigent defense services throughout the country, (10) and I am convinced of his personal commitment to the cause. But the overriding question is whether or not federal funding of indigent defense will ever be provided. I remain pessimistic that, unless the states are aided by the federal government, the states will ever sufficiently support the funding of public defense, especially in view of their financial problems and competing obligations. Clearly, they have not done so thus far.

Think about how we got to where we are today. Obviously, the United States Supreme Court did not pass legislation establishing the right to counsel and provide funding for its implementation. The Court does not pass laws; it renders legal opinions. After Gideon v. Wainwright (11) was decided in 1963, the Court soon extended the right to counsel. (12) But Gideon and the Court's other decisions were unfunded mandates imposed on state and local jurisdictions. While the cost of providing adequate defense services is substantially less than the expense of prosecution, police, and corrections, state legislatures have lacked the necessary political will to provide sufficient funding for the defense function. This is no doubt because indigent defense lacks the popular support enjoyed by law enforcement-related expenses. Our country's way of handling the right to counsel differs significantly from that of England and Scotland, where national legislation established the right to counsel with funding provided by the national government. (13) In the United States, there has been very little federal support provided to the states to implement the nation's federal constitutional right to counsel. (14)

Adele Bernhard mentioned the 1973 caseload standards recommended by the National Advisory Commission on Criminal Justice Standards and Goals (NAC). (15) Among the NAC's proposals was a recommendation that public defenders, on average, should not provide per annum representation in more than 150 felony cases, 400 misdemeanor cases, or 200 juvenile delinquency cases. (16) However, the recommendations often are repeated without any mention of the commentary that accompanied them when they were proposed. The report of the NAC explained that there had been a NLADA committee meeting, (17) and the committee suggested these may be appropriate numbers while acknowledging "the dangers of proposing any national guidelines." (18) The NAC then proceeded to explain that it had "accepted" the recommendation of the committee report of NLADA. (19) In other words, the committee conceded that it did no empirical work to come up with its numbers; it simply embraced recommendations of a NLADA committee without apparently even understanding how NLADA came up with its recommended numbers. Despite the fact that the NAC numbers are more than thirty-five years old, seemingly the product of guesswork, and offered with significant caveats, they nevertheless frequently are referred to as "national caseload standards!" It is worth noting that the National District Attorneys Association concluded after several years of study that reliable national caseload guidelines for prosecutors could not be developed, due to the significant number of variables involved in prosecuting cases across the country. (20)

Now, I would like to turn to the ABA ethics opinion dealing with excessive workloads in public defense. (21) Soon after the opinion was published, I co-authored an article that discussed the way in which the ethics opinion was requested from the ABA ethics committee. (22) During a program I moderated at the ABA Annual Meeting in Atlanta in 2004, Ross Shepard, then the director of defender services of NLADA...