Why Do We Need More Standards?
Foundational Standards. Ho Hum, right? I'm writing this to ask you to take a look.
The Steering Committee of NAPD passed the Foundational Principles on March 16, 2017. This ended a process of 18 months that began with an idea by Tim Young, Ohio Public Defender and then Chair of NAPD. His idea was that we needed a document that set out what NAPD stands for. Thereafter, Steering Committee members were given the opportunity to propose any idea that they thought was important. Those ideas were taken by Tim Young, Norm Lefstein, Heather Hall, and Ernie Lewis and converted into a series of principles. A two-day meeting in Frankfort by a number of Steering Committee members during the summer of 2016 resulted in a document that was almost complete. However, it took until just a few weeks ago for the Steering Committee to be completely satisfied. Everyone on the Steering Committee had a hand in them. And remember that the NAPD Steering Committee consists almost entirely in current public defender professionals, making this a ground-up document.
Why do we need more standards? Why, indeed. Certainly, we already have the ABA 10 Principles, which have been around since 2002, and the ABA Eight Guidelines (2008), both of which have been highly influential. We also have the ABA Standards for Criminal Justice and the NLADA Performance Guidelines that have been influential with public defense organizations for several decades.
There are two justifications for new standards. First, NAPD itself is a new organization. NAPD needed to define itself, to distinguish itself from other organizations in the criminal justice arena. We are an association of over 15,000 public defense professionals, including 100+ organizations large and small. We pride ourselves on the engagement of our members. We are virtual and actively use social media. Because we don't have a central office with an infrastructure, definition was and is important. Secondly, a lot has happened in criminal justice over the past several decades, making existing standards a little bit dated. Public defense itself post-Gideon is only a little over 50 years old. These principles provided NAPD with the opportunity to update the standards that we have all been following. These principles say new things about what it means to be a public defender, what responsibilities public defenders have to address poverty, mass incarceration, and discrimination, and how public defense should be organized.
I encourage all NAPD members to read this document fully and carefully. You can find it HERE
Some of what you should look for in the document:
- There is an emphasis on counsel being available to everyone charged with a crime. We all have seen the assembly lines that pass for criminal justice in many courts around the country. In some places, public defenders are nowhere to be seen as juveniles and adults go before a judge, please delinquent or guilty, and move onto the next stage of the conveyor belt. These principles emphasize that when a child is charged with delinquency, that child must have counsel, and that is non-waivable. An adult, while not quite as vulnerable as a child, similarly needs the opportunity to speak to a lawyer before waiving counsel. There is no room for proceedings without counsel, whether it be a first appearance or a guilty plea or a sentencing. See Principle #1.
- There is a recognition that the first 48 hours after arrest are vital for the defense of an accused. There are too many jurisdictions in the US where counsel is not provided for days or even weeks following the arrest of a person. These principles assert that before 48 hours are over, an accused person should be interviewed by a lawyer or a person working for the lawyer, and that professional should be ready to argue for pretrial release at a first appearance. See Principle #1.
- There should be an entity in each state charged with ensuring an excellent system of public defense. There are too many places in the US where the quality of representation depends upon geography. Many cities have excellent public defenders while at the same time quality suffers in the rural areas outside of the cities. Many jurisdictions place responsibility for public defense at the county level. These principles strongly affirm the need to place this responsibility at the state level. There must be consistency within each state, and there must be performance standards, workload standards, and standards for eligibility for counsel. Each state should have an organization that advocates for policy reform. See Principle #3.
- Public defense should not be funded on the backs of poor people. One of the most distressing trends in recent years has been that policy makers have decided that poor people should be responsible for funding the system of public defense. That development is causing immense problems for persons charged with crimes as well as their families. It is driving the frustration we all witnessed in Ferguson, Missouri, following the killing of Michael Brown. See Principle #4.
- The workloads crisis must be solved. NAPD was in no small part formed because of the excessive workloads that public defenders have been carrying for decades, workloads that cause young lawyers to leave the work, that result in guilty pleas without adequate investigation, and the overall sense that public defenders simply don't have time to produce a quality product. The first committee created by NAPD was a Workloads Committee, which immediately held a conference in 2014 on how to challenge excessive workloads. That focus is affirmed and renewed in these principles. See Principle #5.
- Being client-centered and holistic are recognized. Over the past ten years or so, both of these concepts have been stressed in training and conversation among defenders. They are recognized as standards that must be upheld. Being client-centered is defined as having lawyers and other professionals “recognize and respect the client's authority, ability, and right to decide the direction that the client's case should take after being fully advised of all available options.” “Holistic representation” is said to complement client centered representation “because it is the most effective approach in seeking the full range of best outcomes desired by and on behalf of clients.” Seed Principle #8.
- Public defense providers are charged with seeking to change “pervasive cultural prejudice that stigmatizes and marginalizes poor people.” When I began as a public defender, I was told that I was an independent agent representing my client. I was not educated in the larger societal dynamics that were causing my clients to commit crimes, and I certainly was not told that it was within my responsibility to do anything about that. My training was not unique. But that has been changing. Public defense providers increasingly see part of their role to challenge the systems and laws that are having a significant impact on clients and their families, whether it be unjust laws, the absence of employment opportunities for persons convicted of crimes, or disparate treatment of children of color. See Principles #10 and 12.
- Public defense and mass incarceration are connected. Since I began as a public defender, incarceration in my state of Kentucky has increased from less than 3000 to 23,000 and rising. While the crime rate in Kentucky is about the same as it was when I began in 1977, the impact of criminal justice laws has been profound. 200,000 Kentuckians, many of them African-American men, are permanently barred from voting. Neighborhoods have been destroyed. Employment opportunities have disappeared. I have not only been a witness to this. I have been complicit in that I was an attorney and citizen as laws became increasingly punitive. I have increasingly come to believe that a strong public defense system is a necessity if mass incarceration is ever going to be reduced. See Principle #11.
- Persons with mental illness should be treated, not imprisoned. I will never forget coming into the Madison County jail and seeing a person who taught at Eastern Kentucky University laying in a cage after having been caught running down the median of the nearby interstate highway naked. He was there exposed and lost for days. We criminalize mental illness, and that needs to stop. See Principle #13.
- Public defenders must be at the table when laws are made and policies are established. Michael Judge, former LA Public Defender, used to stress that public defenders must be “co-managers” of the criminal justice system. For too long, the expertise of public defenders has been squandered by policy makers, who have acted as if we had nothing to say. We are the experts, and must insist on being heard. See Principles #14 and 15.