The current Indigent Defense Task Force (the third such task force formed by the Oregon State Bar) delivered part one of its report to the Oregon State Bar Board of Governors ('BOG') on May 22, 2000. The BOG asked the Task Force to continue its work by developing goals, recommendations and conclusions in regard to matters addressed in that report.
This report summarizes Task Force conclusions and identifies goals for improvement of the indigent defense system. It addresses both specific areas of practice and the creation of a general policy pertaining to the manner in which services are provided statewide. It closes with some recommendations for further work by the OSB.
This committee found itself, on the question of a 'general policy', in agreement with the ABA's standard on providing indigent defense services.¹ In our opinion, the information we have gathered supports the ABA standard's call for full-time defender organizations in jurisdictions where there are sufficient cases to support them, and its call for substantial private bar participation in the system.
The argument for full-time defender offices, that their staff
can bring skills and resources to bear on cases far more effectively than those
employed in small offices or solo practices, is supported by the previous work
of the Task Force summarized in Part One of this report. It is apparent that,
in general terms, larger organizations have more success in providing quality
representation. They are better able to deal with the training, coverage and
support issues that high caseloads impose upon lawyers.
Their size also allows them to play a larger part in the negotiations among participants in the system on such matters as case scheduling, motion practice and prisoner handling, all issues which have a huge impact on the ability of individual lawyers to handle their case loads effectively.
Two other critical quality-of-service factors relate to the volume of work in particular case types. In those areas, geographic or otherwise defined, where a given type of case occurs so infrequently as to prevent the development of specialized expertise amongst the providers in that area, quality suffers dramatically. Correspondingly, when filings of a certain type of case overwhelm the resident legal population, so that the demand for services vastly outstrips the resources of the available suppliers, quality cannot be assured.
One critical quality of service problem, beyond the scope of our recommendations, is a burden that indigent defense providers share with justice system as a whole: many individuals and cases are forced into the criminal justice system only because of failures in other kinds of services. For example, lack of resources for mental ill individuals results in the police and jail, and then the courts and the appointed defense attorney, taking on responsibility for the care, if not the treatment, of many mentally ill people who do not belong in the criminal justice system. Limited availability of drug and alcohol treatment has the same effect, creating numerous new criminal cases while offenders cycle through the system repeatedly. While there have been efforts in some counties (the STOP program in Multnomah County being a prime example) to find novel solutions to handling these case types for which criminal sanctions have long proved themselves to be in-effective, there remains a flood of these pointless cases, all consuming resources without any increase in community safety or offender improvement.
The Task Force developed these goals in response to the current system, realizing that it would not be practical or wise to imagine that we are creating an entirely new system. If we were, a statewide public defense office would be an attractive alternative. As it is, the financial and political realities of the current system require that change be gradual and well planned. Current contractors and the policies they rely on are deeply imbedded in the way each jurisdiction functions and caution should be taken to preserve those parts of the provider system which work well as steps are taken to improve the system overall. Rather than recommend the goal of a single statewide defender office, our Task Force advocates a less radical, and more practical, set of alternatives that we believe will improve the current system, perhaps sufficiently to make the creation of a statewide office unnecessary. On the other hand, if the achievement of these less dramatic goals is not sufficient to bring about the needed improvements, the changes advocated here will provide a sound foundation for an orderly transition to a statewide office in a future biennium.
Goal 1 - Provide additional resources for system administration
A strong, well-staffed, central administrative office, built upon the existing Indigent Defense Services Division (IDSD) is, in our view, a necessary step toward an improved system. Despite heroic efforts by the current administrator and her small staff, the explosive growth in the number of cases and contracts since the State assumed the management of indigent defense has left that office ill-equipped to fully administer its responsibilities, with most of its efforts committed to keeping the system running and little energy left over for the improvements the staff would like to achieve. The IDSD operates with a budget and staff little changed from the early years when the system was vastly smaller; that office will be expected to manage whatever changes are agreed upon, and its staff must have the resources to do the job.
Goal 2 - Designate 'lead contractors' in each jurisdiction
Lead contractors should be designated by IDSD in each judicial district (or combined judicial districts in more sparsely populated regions), to take responsibility for case assignment and conflict checks for all indigent defense providers in their districts. The lead contractors should have primary responsibility for monitoring the quality of the indigent defense services provided in the district or region, and should provide feedback to IDSD regarding quality issues. In addition, the lead contractor should be responsible for providing education, support and training for all public defense lawyers within their district or region. These lead contractors should be provided with funds for these specific services. Given the size of Multnomah County, it may be necessary to have multiple lead contractors, i.e., one for felonies, one for misdemeanors, and another for juvenile cases. In many jurisdictions, but particularly in Multnomah County, IDSD should reduce the number of contractors though the consolidation of existing contracts. The Task Force considers the participation of the private bar lawyers important to a healthy system and encourages the IDSD to appoint private bar attorneys to at least 20% of all cases in each case type through either individual appointments or contracts with consortia. Included within the 20% should be all the conflict cases that the defender offices are unable to handle. Private bar participation in the process is important for quality control reasons and, in addition, provides the flexibility that the system needs to adjust to short term changes in case flow. IDSD should work with lead contractors to develop a consistent system for monitoring quality, gathering input from other local participants and providing feedback to IDSD before contract negotiations occur.
Goal 3 - Create additional full-time defender offices
Public defender offices with full time staff should be created in all judicial districts large enough to support them,; in more sparsely populated regions, offices should be created to provide services in multiple judicial districts. In either case, the public defender offices should serve as the lead contractors referenced in Goal 2.
Goal 4 - Create a Resource and Assistance Office
A Resource and Assistance Office, comparable to the Attorney's General's District Attorneys' Assistance Unit, should be created and staffed with a small group of experienced lawyers. This office will provide statewide training and support to all other indigent defense providers.
Goal 5 - Create a State Post Conviction/Habeas Office
Post conviction relief and habeas corpus representation are among the most deficient in the state. This Task Force concludes that no remedy short of a statewide entity will be able to provide competent and economical representation in these areas of practice. Both case types call for particular specialization and are unlike much of conventional criminal defense practice: both remedies are essentially civil in nature. The Task Force believes, further, that Oregon's practice of siting prisons in rural and often remote areas of the state has a tendency to overwhelm the local legal populations' ability to respond to the demand created by the local siting of a large correctional institution. The IDSD struggles to find willing providers for these case types, and finds itself compelled, at times, to require criminal defense contractors to accept these cases in order to obtain or retain their criminal defense contracts. Such cases should not 'tag along' with criminal defense caseloads, particularly when those providers are fully occupied with criminal defense representation. The advantages of a single specialized office, based in Salem (or elsewhere), where lawyers can develop the expertise to handle these cases in an efficient manner should prove more cost-effective than the current method of providing these services. While it might seem tempting to incorporate such an office within the existing State Public Defender's Office (which handles indigent direct appeals), the nature of the cases precludes it: the work of the State Public Defender may itself be at issue in these cases. Again, the Task Force suggests that the Legislature and IDSD rely on the model of the centralized unit that currently exists within the Oregon Department of Justice to handle these cases.
Goal 6 - Provide litigation support for lawyers handling involuntary commitment hearings
People facing involuntary civil commitments due to mental health problems are among those least able to advocate for themselves and are too often poorly represented, particularly in those locales with only a few such cases per year. The small number of filings mean that attorneys may confront the issues raised in such cases so infrequently that they find it difficult to stay abreast of developments in the law or changes in the availability of local social services. The Task Force originally concluded that one statewide provider with a large travel budget would best represent the mentally ill, but, upon consultation with various providers in this area, now recognizes that the accelerated time lines for commitment hearings make it logistically impossible to have a single statewide provider. There are alternative ways to create such a provider, however: a large public defender office with experience in this area or an existing organization like the Oregon Advocacy Center could provide a support system and resource office for lawyers handling these cases across the state. If that contractor were responsible for hiring and training local lawyers to handle the civil commitment cases in each jurisdiction, the current 'unevenness' in the quality of representation could be reduced significantly.
Goal 7 - Provide additional support for lawyers handling juvenile delinquency, dependency and parental termination cases
These classes of cases represent an area of great need and, at the same time, an area in which the best path towards better service is unclear. In dependency and termination cases, lawyers are often appointed for each parent and, occasionally, for each child. The committee found that representation by appointed counsel in juvenile cases was among the most deficient and, particularly in regard to contract attorneys, the least desirable for the providers. The issues raised in these cases are often far broader than those that routinely turn up in criminal defense work.
In addition to knowledge of criminal law and juvenile court procedure, counsel in delinquency cases must understand the developmental needs of children and be familiar with community resources. Frequently, a child has been the victim of abuse, poverty, and neglect, and has drug and alcohol problems. In delinquency cases, it becomes important for counsel to understand child development issues that may directly impact the child's understanding of the court proceedings, ability to remember and identify witnesses and evidence, and competency to waive constitutional warnings concerning admissions or confessions. Sustained efforts at pretrial release for children require more knowledge of community programming for the child and the family than is generally necessary for adults. Finally, children in crisis have difficulty in forming relationships with strangers; the staff turnover that can plague small contract offices is often particularly damaging to the quality of a child's representation.
Unlike other areas of representation, dependency cases in juvenile court have a tendency to go on for years, requiring lawyers to get involved in many details of their clients personal lives, and often involve repeated court appearances. As challenging as they are, these cases are likely to become even more of a financial burden on appointed lawyers, given the duration of cases and the current trend to consolidate juvenile cases with criminal matters and domestic matters involving the same family. Lawyers appointed on juvenile matters should have, as most do, experience in criminal trial practice. Few, unfortunately, have any experience in domestic relations. Whatever the efficiencies to the court or the families involved, consolidation of case types presents a significant additional challenge to the lawyers' ability to provide competent representation. If the courts expect appointed lawyers to handle consolidated dependency, termination, criminal and domestic relations matters, practitioners must be adequately trained, insured, and paid.
In termination cases, the system fails to recognize the complexity of the cases and the degree of preparation that is required. Inadequate representation can result in the client's loss of his or her children. Although larger, metropolitan providers often specialize in this area, smaller offices in more remote geographical areas often have insufficient exposure to termination practice and insufficient resources to meet the demands of accepting an appointment on a termination case.
Competent representation on juvenile matters can avoid the clients' protracted involvement with the judicial system, whether the clients are parents or children. The financial and social benefits of early resolution are substantial.. Despite the high stakes, it is not clear what the best provider model is. Outside of Multnomah County (where the county prosecutor provides services on a contract basis), prosecution of these cases is handled by a centralized unit of the Oregon Department of Justice but this Task Force does not take a position on whether a parallel office should be created to handle the increasingly complex juvenile indigent defense representation needs. The Task Force recommends, below, that the Bar organize a further study of indigent defense representation in juvenile court matters, and that a particular focus of the study be the determination of whether and how indigent defense service providers can be integrated into the consolidated handling of cases in domestic relations court without diminishing the quality of representation unacceptably.
As an immediate goal, the Task Force urges more training and resources be supplied to juvenile court practitioners regardless of the provider model ultimately adopted. This is an area in which the Resource Center mentioned in Goal 4 would be of great use, but it is certain that such a resource, by itself, will be unable to address the needs created by this complex system.
Recommendations to the Oregon State Bar
This Task Force is one example of the active role that the Oregon State Bar has continued to play in the study, development, and funding of the indigent defense provider system. The members of the Task Force want to acknowledge the Bar's commitment to access to justice in the criminal and juvenile systems and thank the OSB and BOG for their support. What is there for the Bar to do in continued support of quality in the indigent defense system? Our recommendations are:
1. The Oregon State Bar should actively and aggressively pursue the goals established by this Task Force, by supporting appropriate legislation and funding.
2. The OSB should consider a modification of DR 5-105 in regard to the 'firm unit rule' that currently prevents defenders from handling cases in which a former client has a role. A very limited relaxation of this rule could eliminate many current ' conflict' cases without any loss of client confidentiality.
3. The OSB should assist with the process of seeking and obtaining grants from public and private sources to fund the studies and programs recommended in this report.
4. The OSB should allow Continuing Legal Education credits to attorneys for mentoring indigent defense providers and should provide low cost, targeted education and training for indigent defense providers, in geographically remote areas as well as population centers.
5. The OSB should consider the establishment of an additional Task Force or other working group to give more detailed examination to the issues raised regarding the impact on indigent defense of the complicated interlocking issues presented by the fundamental changes occurring in the family law courts.
6. The OSB should undertake an examination of the quality of services available to those for whom English is not a native language. The survey conducted by this Task Force and reported above did not incorporate questions about legal services provided to indigent persons for whom English is not the primary language; those issues were beyond the charge initially given to the Task Force but were included in the charge to develop conclusions, goals and recommendations. Although the Task Force did collect anecdotal evidence of problems and did conduct some investigation in this area, the subject deserves further focused study.
The Task Force offers the following observations as a starting point for further study. The number of non-native English speaking clients appears to be increasing steadily, and non-native English speakers appear to be over-represented in the juvenile and criminal courts. Immigration issues are involved in most of the cases where a client does not speak English, placing providers in the awkward position of being ill-equipped to explain the ever more complex immigration consequences that may be collateral to criminal or juvenile court involvement; competent representation of these clients requires the establishment of immigration resources far superior to those provided now. Although representing non-English speaking clients generally takes far more time than representation in an otherwise equivalent case involving an English-speaking client, indigent defense providers are not compensated commensurately. Finally, although significant improvements have been made in the quality and availability of in-court interpretation services, those improvements should be extended to the legal services provided outside the courtroom; practitioners should have expedited access to qualified interpreters through the same channels that now coordinate in-court interpretation.
The OSB should consider the establishment of an additional Task Force or other working group to give more detailed consideration to the issues raised by non-native English speaking participants in the court systems of this State.
Submitted January 12, 2001, Oregon State Bar Indigent Defense Task Force III-B:
Scott Asphaug, Portland
John Connors, Portland
Nelson Hall, Portland
The Honorable Edward J. Jones, Portland
Robert Joondeph, Portland
David Orf, BOG Liaison, Medford
Paul Petterson, Portland
Manuel Perez, Ontario
John Ransom, Portland
Diana Stuart, Portland
Kristen Winemiller, Chair, Portland
¹The American Bar Association Standards for Criminal Justice, Providing Defense Services, Standard 5-1.2 states:
(a) The legal representation plan for each jurisdiction should provide for the services of a full-time defender organization when population and caseload are sufficient to support such an organization. Multi-jurisdictional organizations may be appropriate in rural areas.
(b) Every system should include the active and substantial participation of the private bar. That participation should be through a coordinated assigned-counsel system and may also include contracts for services. No program should be precluded from representing clients in any particular type or category of cases.
(c) Conditions may make it preferable to create a statewide system of defense.