Nearly 35 years after Gideon, it is clear the nation is backsliding in its commitment to providing competent defense services for the poor. This has become the single greatest moral dilemma now facing the entire legal profession -- the chronic underfunding of the defense function for those low-income persons who face the severest sanctions, including death.
Public defender offices routinely exceed their maximum caseloads, investigators and experts are woefully underutilized, and long delays at the appeals level are increasingly common. Into this potent mix has come the latest disturbing trend -- an increase in low-bid contracting for defense services. Over half the states now have jurisdictions with one or more of such contract programs.
This trend is called the "HMO-ization" of defense services because it is strikingly similar to what has happened in health care over the past decade. The goal is to process the maximum number of people at the lowest per person cost. In health care, the "savings" have translated into booming profits for the giant HMOs. The "savings" from cutting defense services for the poor go back into public coffers -- a plan that has mass intuitive appeal in a country hysterical over violent crime.
Ironically, the "savings" generated by low-bid contracts helped fund the most dramatic prison expansion in our history. America's prison population has quadrupled since 1980, and 84 percent of new admissions during that time have been non-violent offenders. We have the highest rate of incarceration among Western cultures. Most of those filling the new prison beds are the lowest income persons in greatest need of the defense services being slashed.
To put some teeth into the constitutional mandate of adequate representation for the poor, all bar associations must actively campaign to correct the problems of low-bid contracts. We need to vigorously enforce existing Professional Responsibility Rules, and add new ones as needed, as these contracts come up for bid. Why should lawyers (if they are in government) be able to prepare or sign documents which will produce unethical or immoral outcomes simply because of a lack of resources?
Any low-ball contract for defense services that falls short of minimum standards (e.g. which does not have basic provisions requiring vertical representation, adequate attorney compensation and sufficient resources for investigators, experts and other trial necessities) should be rejected as inadequate by the bar associations in whose jurisdiction the contract is offered. Once rejected, no attorney should be allowed to bid on the contract. Those that do should be considered for appropriate disciplinary action.
Those lawyer-legislators responsible for "ensuring proper and sufficient" funding for indigent defense -- many of whom are members of the bar -- should be held accountable by disciplinary committees if systemic ethical violations are the likely result of underfunding. If disciplinary committees even hint at cracking down, you can be sure the debate over funding for indigent defense would take on a new tone.
I propose these measures because the use of contract defense systems has an alarmingly poor history in those cities where it has been attempted. (I note that many attorneys have provided outstanding services under contract systems, particularly in rural areas, under most difficult circumstances. But this is more the exception than the rule.) In a 1985 exposé, The American Lawyer evidenced a system in near-total disarray in those cities where contracting had been tried.
In one locale, many indigent defendants were represented by private law firms that had contracts with an Office of Defender Services. The average caseload of associates at one firm with such a contract was 725 cases per year. Misdemeanor cases were capped at a fee of $65; all but 2 percent of such cases resulted in guilty pleas. Some associates at law firms having defense contracts were paid as little as $12,000 yearly.
Given the infatuation of local governments with cost-cutting, we can expect low-bid contracts to continue to proliferate despite past failures. Even with modest improvements, the structural problems of contract-based systems ensure injustice. A recent NACDL report says that numerous bar association and academic studies have detailed the colossal failure of contracting to provide quality representation. The most glaring and recurring flaws include:
- Failure to consider the qualifications and experience of bidding attorneys.
- Many contract programs provide little supervision and training.
- Fixed-price contracts, requiring representation of all cases, soon result in case overload and inadequate representation.
- In many contract systems, the most qualified and experienced lawyers drop out of the system, to be replaced by recent law graduates and marginally competent attorneys.
- Competitive bidding creates systemic instability and administrative inefficiency because of the need to annually process bids and negotiate contract terms.
- In the long run, the costs of most contract systems exceed those of public defender and assigned counsel systems.
One way to prevent lawyering that falls short of minimum standards is to create mechanisms to enforce performance standards. Such standards, applicable to all criminal defense representation, specify the duties of defense counsel during each stage of legal representation. They also reference the ABA Model Rules of Professional Conduct.
Finally, we need to begin pressing bar associations to use disciplinary codes both to enforce meaningful performance standards and to provide vigilant oversight of contract bidding. The crisis of public defender case overloads places overburdened lawyers in the impossible position of having to choose which clients to represent with diligence, and which to neglect. In too many jurisdictions, the result is routine violations of professional responsibility codes.
These violations are ignored by the courts and bar officials responsible for enforcing the codes. This needs to change: those responsible for the crisis created by the underfunding of indigent defense must be held accountable by the profession as a whole.
National Association of Criminal Defense Lawyers (NACDL)