Broadening the holistic mindset: incorporating collateral consequences and reentry into criminal defense lawyering.

• Author: Pinard, Michael

INTRODUCTION

Over the past two decades, public defender offices across the country have broadened the range of defense services provided to indigent clients. These expanded services, some of which involve representing clients on related non-criminal matters such as housing and public benefits, are included in what is now commonly referred to as "holistic representation." (1) This form of representation strives to encompass the various underlying issues that often lead to clients' experiences with the criminal justice system, with the aim of addressing those circumstances and preventing future criminal involvement. (2)

The past several years have witnessed many ways in which defender organizations, utilizing a holistic mindset, have reconceptualized their roles. For instance, the community defender movement, which has led to certain defender offices establishing concrete ties with their relevant communities, (3) has radicalized both the ways in which defender organizations perceive those communities (4) as well as the level of services those offices employ on behalf of their clients. (5)

While defender offices have viewed these expanded services as new and improved ways to represent clients, in fact holistic--or "whole client"--representation signals a paradigmatic shift in defense philosophy and ideology. It marks a significant departure from the traditional defense role, which focused narrowly on the criminal case and left unaddressed the related convergent issues. (6) Accordingly, the holistic approach has transformed criminal defense practice by broadening the conception of what defense lawyers actually do. (7)

Viewing holistic representation, however, as a paradigmatic shift that has transformed criminal defense lawyering, rather than as an organically progressive extension of traditional defense services, reveals that much more is needed to truly fulfill its various mandates. The holistic mindset is an ever-searching one; it critiques the traditional and contemporary practice methods, searches for improved delivery of defense services and constantly presses for role reformation.

This essay will explore this conception of holistic representation by looking at two facets of our criminal justice system--collateral consequences of criminal convictions and ex-offender reentry (8)--that have very recently begun to receive critical attention but which are not part of the traditional defense role. As set forth below, collateral consequences are considered to be the indirect, rather than direct, consequences that flow from a criminal conviction. They include numerous disabilities that are either tied to particular criminal convictions or attach to convictions in general. Some of these consequences relate to housing, public benefits, various forms of employment, and deportation. Reentry pertains to the process by which an ex-offender who has completed the non-community based portion of her sentence, such as incarceration in a jail, prison or juvenile facility, returns to her community.

Using a holistic mindset, this essay offers broader perspectives of collateral consequences and reentry in two ways. First, it addresses the need for criminal defense attorneys to incorporate both collateral consequences and reentry components into their practices. These components have been largely ignored in the defense context, mainly because the traditional narrow defense role focuses on the direct legal aspects of the criminal case and does not consider the ways in which other issues, long perceived as tangential, directly impact clients' lives, the communities from which they come and to which they return, and their abilities to move onto more productive life experiences. While the holistic lawyering movement has greatly widened the defense role by considering the clients' social and broader legal needs, the holistic mindset has yet to generally embrace these collateral consequences and reentry components.

Second, this essay addresses the need to incorporate these components into both felony and misdemeanor practices, (9) as well into both community-based sentences, such as probation, and non-community based sentences, such as incarceration. These components are especially significant in misdemeanor cases because they comprise the majority of cases in the criminal justice system. Moreover, these cases overwhelming result in guilty pleas, (10) particularly at the very beginning stages of the criminal process.

Part I of this essay sets forth the tenets of the holistic model. Part II provides an overview of various issues pertaining to collateral consequences and reentry, explains the extent to which courts and institutional actors consider these two facets to stand apart from the criminal process, and discusses the need to expand the holistic mindset to incorporate these components into criminal defense lawyering. Part III addresses some possible barriers and objections to incorporating these components, and offers some possible solutions that could facilitate the ability of defender organizations to integrate these components into the holistic model, either formally by developing specialized units or collaborating with partner organizations, or informally by referring reentry related civil matters to outside organizations.

1. ENVISIONING CRIMINAL DEFENSE SERVICES: THE IMPORTANCE OF A HOLISTIC MINDSET

   Several commentators have written about the need for public defender organizations and other indigent defense practitioners to provide holistic or "whole client" services to their clients, and have praised particular organizations for broadening the defense perspective by incorporating holistic practices. (11) In contrast to the traditional defense ideology, which espouses a narrow conception of representation by focusing squarely on the particular criminal case and the clients' immediate legal issues, (12) the holistic mindset recasts the defense role by considering the social, psychological and socioeconomic factors that often underlay such cases. (13) This mindset recognizes that clients often enter the criminal justice system with multiple convergent issues. As a result, the holistic mindset seeks to recognize and address the cadre of issues, with the aim of providing a comprehensive solution to the underlying factors that lcd to the client's involvement with the criminal justice system.14

   The holistic approach sets in at the very beginning of a criminal case. (15) Early intervention usually entails an immediate outpouring of investigative resources directed at the integral actors in the particular case, most importantly witnesses. It also involves, however, contacting people who are not necessarily factually relevant to the particular incident for which the defendant is charged, but who are critical to other aspects of the case, such as the defendant's background and case disposition. These people could include parents, children, doctors, church members, school teachers, social workers, co-workers, and neighbors. Accordingly the holistic mindset envisions every contingency and seeks to find creative ways to best resolve the myriad issues that contributed to the client's entanglement in the criminal justice system. (16)

   The holistic mindset also recognizes the relevance of clients' communities in this process. Several defender organizations, particularly those that are situated squarely in client communities and neighborhoods, have implemented innovative programs and services that utilize their communities as part of a collective enterprise that seeks alternative criminal justice approaches. (17) On a broader level, some of these organizations envision themselves as full community partners and engage in activities unrelated to the provision of direct legal services. (18) Accordingly, these defender offices are part of a network of community resources available to address clients' multiple legal and social issues.

   While the holistic mindset has been lauded for broadening perspectives and greatly enriching the provision of defense services, it has largely overlooked two facets of representation that are critical to the adequate provision of both direct criminal defense services and to indirect quasi-criminal defense services: collateral consequences of criminal convictions and ex-offender reentry. While these are technically independent components, in many ways they are intertwined as the nature and extent of collateral consequences stemming from a particular conviction often influences directly the ex-offender's ability to reenter her community productively. (19) Accordingly, the holistic perspective needs to expand to embrace these particular issues that have long been stitched into the criminal justice system's fabric, but which have become even more pressing in light of recent legislative developments and current case processing and incarceration trends.

2. EXPANDING THE REPRESENTATION AND THE SERVICES: THE CRITICAL NEED TO INCORPORATE COLLATERAL CONSEQUENCES AND REENTRY PERSPECTIVES INTO THE HOLISTIC MINDSET

   1. Collateral Consequences

      Relatively recently, a burgeoning chorus of advocates, (20) policy analysts, and commentators has called attention to the various collateral consequences that attend criminal convictions. Such consequences exist at the federal (21) and state (22) levels, and are considered to be the indirect, rather than direct, consequences that flow from a criminal conviction. (23) While direct consequences include the length of the jail or prison sentence the defendant receives as well as, in some jurisdictions, the defendant's parole eligibility (4) or imposition of fines, (25) collateral consequences encompass a wide array of sanctions--termed civil disabilities--that attach to, but are legally separate from, the criminal sentence. Some of these consequences are imposed automatically by operation of law, while others are imposed at the discretion of agencies detached from the criminal justice...