Category Archives: Indigent Defense

Articles and posts on public defense in America.

Bronx Defenders Didn’t Invent Holistic Defense—We Did

Okay, I jest a little. I promise this won’t be a Boston v. New York thing. I’m actually a big fan of the way in which Bronx Defenders has integrated representation across criminal, housing, family, and other types of cases. Sometimes, however, I lament the notion that this is a “new” idea.

Before BxD, there was Neighborhood Defender Service of Harlem (“NDS”). Some may quibble over whether NDS fits into the same category as BxD but I think they share an important core: community-oriented defense.

And long before either organization came to be, a group of young ambitious lawyers in Boston created the Roxbury Defenders. A few months ago, Roderick Ireland, the Chief Justice of the Massachusetts Supreme Judicial Court, penned an article fondly reminiscing on his time working at the Roxbury Defenders. Reading his piece, I was struck by many of the features of community-oriented, holistic defense that the organization exhibited at its inception. The attorneys would hold regular know-your-rights meetings and even did a 1-hour radio show each week where local callers could seek answers to basic legal questions. Moreover, Roxbury Defenders recognized and implemented the importance of social services advocacy, drug treatment, prison outreach, and the like.

Things change over time. Roxbury Defenders still exists but now as a unit of the Committee for Public Counsel Services (“CPCS”). And yet the spirit and commitment to holistic defense is still going strong in our organization and I’m proud to be connected (even if indirectly) to that history.

Sometimes reading through the literature on public defense, you can get the impression that mixing civil and criminal legal services, doing community outreach, and going beyond narrow representation is a brand new invention. It truly is a great goal but there’s nothing new about it. It’s retro, baby. It’s retro.

-Zachary Cloud

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A Great Book on Public Defenders

I’m not really into book reviews so you can rest assured this won’t be one. In fact, this is just a recommendation. If you’re looking for a fascinating book about public defenders written by an independent, objective source, get: Kevin Davis, Defending The Damned: Inside Chicago’s Cook County Public Defender’s Office, New York: Atria Books 2007.

Somewhat amazingly, this journalist/author was allowed full access to shadow defenders in the Murder Task Force unit of the office. The result is a perspective you normally couldn’t get unless you worked in a pd’s office yourself. So for those of you who have wondered what public defenders are like or how they can represent people accused of awful crimes, this has the answer.

My favorite quote is probably a line from the Author’s Note in the beginning:

Early on, one public defender told me that anyone who chooses this work has to be fearless and unconcerned about whether people like them. It’s not a job for those seeking approval. It’s a job for those willing to rattle cages, make enemies, and raise hell. By raising hell, these lawyers honor the law.

I couldn’t have said it better myself.

-Zachary Cloud

New Law Review Article Discussing Turner v. Rogers

As I was looking for something else, I stumbled across this brand-new law review article by Benjamin Barton & Stephanos Bibas. See here. It has a lot to say about so-called “civil Gideon” and about the Court’s ruling in Turner v. Rogers. It’s not much of a secret that I wrote extensively on Turner v. Rogers since the day Supreme Court agreed to hear the case. Nor is it much of a secret that one of these two authors was one of the attorneys litigating that case. So, don’t expect an especially balanced critique of the opinion. I haven’t had a chance to read the article yet but from what I can see it’s at least worth reading. You might agree with it; you might not. From what little I’ve skimmed, the logic is certainly the most defensible argument against appointing attorneys outside of the criminal defense context.

I personally disagree that Turner v. Rogers was rightly decided but that’s because I think Turner presented a clear instance where the defendant faced incarceration and that the Court’s precedents have always suggested that defendants facing incarceration have a right to counsel…period. Lassiter made that inescapable. Well, almost inescapable. The Justices seemed to have missed it.

At any rate, give the article a read! It’s free on UPenn Law Review’s site for now.

-Zachary Cloud

More Criticism of Flat-Rate Contracts in Public Defense

I’ve made it no secret that I find flat-rate contracts for indigent defense services repugnant. Thankfully, it is the exception; not the rule. Today, I pass along an article from stateline.org that highlights the problem. You should definitely read it. For those interested in a more comprehensive treatment of indigent defense in America, see here.

-Zachary Cloud

Will the New Harris County Public Defenders Office Be a Success?

Almost a year ago, Harris County, Texas did something that most other American cities did decades ago: it opened a dedicated public defenders office in Houston. Funded by a state grant of a little over $4 million, the office has slowly been setting up over the last ten months. Unsurprisingly, they have a fan in me. I only recently learned of their “birth” but I’ll be watching their developments closely and cheering them on.

I’m all but pointing out the obvious when I note that Houston is a big city. In fact, it’s the fourth largest in the country with around 2 million residents. In other words, it faces a lot of traffic in the criminal justice system. If Houston’s crime patterns are like any other major city, probably three-quarters or higher of the criminal defendants charged are too poor to hire an attorney.

So, how had Harris County previously been providing the guaranteed 6th amend. right to counsel as extended to the states by Gideon v. Wainwright, 372 U.S. 335 (1963)?  Assigned counsel. Yup. Private attorneys were assigned cases…I’m presuming they probably put their names on a list and billed the government by the hour much like New York’s system. I’ve already ranted about why I think such a system is undesirable so I won’t again. Suffice it to say, this new office is a big step to ensuring zealous defense for criminal defendants in the Houston area.

But how big of a step?

The office certainly got off to a great start by hiring Alex Bunin (an accomplished federal defender who has experience setting up and running public defender offices) to be the Chief Defender. Throughout the year, the office has been hiring seasoned attorneys and apparently integrating well into the local fabric. And yet, the office anticipates only employing 68 people total once it’s fully set up. For speculation’s sake, let’s imagine that 45 of those employees are attorneys, 15 are investigators, and the other 8 are support staff. Those numbers may vary some but I’m willing to bet that I’m in the ballpark. With those kinds of numbers, I find it hard to see how the Harris County Public Defender’s office will be able to reach the lofty goals its supporters have for it. DC’s Public Defender Service employs over 200 people in a city with around a quarter of Houston’s population. All of this is to say that Houston’s office will be highly overworked with only 68 employees.

From what I can tell, the plans are to start small and allow private counsel to continue doing the vast majority of indigent defense for now. Over time, the office will hopefully grow to have a larger employee base and take on more responsibility. Indeed, the long-term goal is probably to set up a system similar to the federal one: the most serious cases going to the Harris County PD and the less severe out to private panel attorneys (akin to the federal CJA panel set forth in 18 U.S.C. § 3006A). If a plan of this general nature doesn’t take hold, it’s hard to see how the new office will be effective on a systemic level.

All in all, this is a really big and important step for the city of Houston and its surrounding communities. I just hope the progress continues. Starting slowly and transitioning into the current framework is important but I have fears about the funding. When the state grant diminishes and the county is expected to provide 100% funding, the office is at the whim of politics. When that day comes, it may be harder to cause any meaningful change to how indigent defense is handled in Houston. Even if that doesn’t cause problems like it has in other cities (e.g. New Orleans), major change will have to be the long-term goal. Otherwise, the office’s creation may end up being a hollow victory that looks great on paper but effects little impact in the quality of most indigents’ representation.

Success is a very real possibility for the new Harris County Public Defenders Office but that success won’t come without struggle. The office’s new attorneys are experienced and ready to tackle the challenge. They’re like mountain hikers. But, they’re at the base of the slope and the trip to the summit is just getting started. It’s a long hike from here. I wish them the very best in overcoming the obstacles they’ll face along the way.

-Zachary Cloud

Data on Public Defenders v. Assigned Counsel v. Private Counsel

I haven’t had a chance to fully review the underlying report from the U.S. Bureau of Justice.  I’ll post my reactions /analysis when I have but until then, here’s an effective discussion.  Give it a read:

Public defenders vs. assigned counsel vs. private attys: Round I lost count

-Zachary Cloud

 

 

Reducing Legal Aid in England & Wales

Passing along another interesting article…

I recently became aware of the proposal in the UK Parliament to reduce legal aid funding for England and Wales. Today, the BBC has a noteworthy article on this plan. Give it a read. I hope to post my thoughts on the matter once I’ve had a chance to read the proposed legislation itself and do more research.

-Zachary Cloud