The measure of good lawyering: evaluating holistic defense in practice.

• Author: Lee, Cynthia G.
• Position: How Do We 'Do Data' in Public Defense?

1. INTRODUCTION

   It is a weekday morning in a public defender's office located in a downtown office building. Defendants and their family members shuffle into the lobby and take seats in plastic chairs to wait for their attorneys. Seated behind thick glass, the receptionist juggles the steadily ringing telephone with the paperwork on her desk, looking up occasionally to buzz a visitor through the locked door into the inner office. This is business as usual in a traditional public defender's office, underresourced and scrambling to keep up with the constant inflow of new cases.

   In another city, clients of the public defender agency enter a sunlit lobby and are greeted in English and Spanish by a receptionist seated at a circular desk. While waiting to meet with their attorneys, clients help themselves to coffee and snacks and read brochures about how to register to vote and have their driving privileges restored. At the top of a spiral staircase, attorneys confer with their clients in private offices, pausing occasionally to make notes in their computerized case management system. Downstairs, one social worker is screening a client for mental health issues while another works the phones to find a bed for another client at a residential drug treatment facility. In a conference room, children from the agency's summer enrichment program are working on an electronics project. For this holistic defender office, it is another typical day at work.

   Holistic defense, also known as problem-solving lawyering, community oriented defense, therapeutic defense, holistic advocacy, or integrated service representation, is the most comprehensive statement to date of what defines the effective assistance of counsel for criminal defendants. (1) The holistic defense model arose partly in response to widespread criticism of existing systems for delivering defense services to indigent clients, and partly as a component of the larger problem-solving movement taking hold in the criminal justice system over the past two decades. The expansion of collateral consequences such as sex offender registration and ineligibility for public housing over the past three decades was another primary motivator for the development of the holistic defense paradigm.

   The holistic model stands in contrast to the traditional model of public defense. Steinberg and Feige note that many public defenders are frustrated by the limitations of a traditional representation model that seeks only to satisfy minimal constitutional requirements. (1) The holistic defense model asks public defenders to do more for their clients and communities. Advocates for holistic defense argue that because it is client-centered, holistic defense humanizes clients and affords them more dignity and respect than a traditional model of criminal defense (3) while protecting defendants from consequences that are often hidden. (4) Further, advocates of holistic defense argue that it can reduce incarceration in several ways. First, because holistic defense attempts to solve underlying social and environmental problems that may have contributed to a client's involvement in crime, advocates for holistic defense argue that it reduces repeat incarceration. (5) Second, because holistic defense increases the focus on consequences that collaterally result from an arrest or conviction, holistic defense can anticipate future events that might lead to a cycle of crime, including both legal and non-legal consequences such as eviction, loss of employment, civil commitment, sex offender registration, and ancillary civil or administrative proceedings. (6)

   Some observers criticize the holistic defense model on normative or theoretical grounds. For example, Moore notes possible ethical concerns when a defender weighs a "client's liberty issues" against the "client's best social interests." (7) Moreover, Holland, building on Lee, argues that holistic defense may directly conflict with the attorney's obligation of "zealous advocacy," with a detrimental effect on defenders' ability to obtain the best legal outcomes for their clients. (8) On a more practical level, Holland suggests that a philosophy of holistic advocacy will lead defender offices to expend scarce resources hiring social workers and investigators rather than an adequate number of attorneys, causing attorneys to spend less time investigating cases and increasing the incentive for attorneys to pursue plea bargains rather than taking cases to trial.

   On both sides of the debate over holistic defense, the supporting evidence consists almost entirely of normative arguments and anecdotal information. To inform the debate, Clarke and Neuhard have called for empirical evidence to determine whether "problem solving lawyering is cost-effective, efficient, and creates improved justice systems." (9) Without empirical assessment, they argue, the cultural shift necessary for the diffusion of the holistic defense model cannot occur. Clarke and Neuhard call for the collection of data and the measurement of outcomes to assess the impact that holistic defense has on the courts, the prisons, and socioeconomically deprived communities, and for the application of social science methods to establish valid conclusions and public policy implications.

   This article seeks to reconcile the competing definitions of holistic defense and to develop a unified framework for empirically evaluating holistic defense. Part II compares and contrasts existing definitions of holistic defense, focusing on how each definition reflects the priorities of its drafters. Part III translates the concept of holistic defense into a formal program theory that can serve as the foundation for an empirical evaluation. Part IV discusses the importance of evaluating holistic defense programs and operationalizes the program theory in terms of measurable outputs and outcomes. Part V concludes by considering what it means for a holistic defense program to be successful.

2. EXISTING DEFINITIONS OF HOLISTIC DEFENSE

   Several agencies and professional organizations have already developed their own definitions of nontraditional criminal defense practice, each branding the practice with a slightly different name: "holistic defense," "community oriented defense," and "comprehensive defense representation." The three primary definitions currently in use include the Bronx Defenders' Four Pillars of Holistic Defense, the Brennan Center for Justice's Ten Principles of Community Oriented Defense, and the American Bar Association (ABA) Task Force on Comprehensive Defense Representation's Six Cornerstones of Comprehensive Representation. Each title reveals a different emphasis in the associated set of principles, an emphasis which is in turn a reflection of the membership and concerns of the group that developed those principles.

   1. The Four Pillars of Holistic Defense

      The Bronx Defenders, a nonprofit provider of indigent defense services established in New York City in 1997, is widely considered to be the first indigent defense agency to have implemented holistic defense practices. (10) The Bronx Defenders has articulated its approach to providing defense services in the form of four "pillars," or core principles:

      1. Seamless access to services that meet clients' legal and social support needs;

      2. Dynamic, interdisciplinary communication;

      3. Advocates with an interdisciplinary skill set; and

      4. A robust understanding of, and connection to, the community served. (11)

      The Four Pillars of Holistic Defense (Four Pillars) maintain a dual focus on interdisciplinary, team-based representation of individual clients and the agency's connection to the community in which its clients live. (11) This dual focus is a natural reflection of the history of holistic practice at the Bronx Defenders. Early on, the attorneys of the Bronx Defenders discovered that their clients were often more concerned about the collateral consequences of a criminal conviction--for example, loss of public housing and other public benefits, removal of children, or deportation--than the prospect of jail time or other direct consequences. (13) To address these concerns, the agency created interdisciplinary teams of advocates that included social workers and civil attorneys in addition to criminal defense attorneys. Civil attorneys handle housing, immigration, and child welfare issues, and social workers and non-attorney "advocates" locate housing and treatment placements and advocate on behalf of clients with public benefits agencies. The team approach is designed to provide "seamless access" to multiple services through a single intake process, eliminating the need for the client to answer the same questions over and over in multiple intake interviews with the criminal defense attorneys, social workers, and civil attorneys. (14) This means that criminal defense attorneys must be trained to ask questions beyond the topics traditionally covered in a client interview in order to identify additional legal and social service needs. (15) The team-based approach to holistic practice also necessitates a cultural shift in which criminal defense attorneys, who traditionally work alone or with small groups of other attorneys and are typically evaluated and promoted based on their performance in plea negotiations and in-court advocacy, routinely share case information with, and accept input on, case strategy from civil attorneys, social workers, investigators, and other defense team members. (16)

      The history of the Bronx Defenders is also evident in the Four Pillars' emphasis on the defender agency's connection to the community. The Bronx Defenders office has always been located in the community where its clients live. In designing its program, the Bronx Defenders actively solicited input from local residents and community organizations. (17) Today, the agency engages in a broad range of activities that go beyond the representation of individual clients...