Idaho Legislature s Public Defense Interim Committee Sara B. Thomas, Idaho State Appellate Public Defender

Transcription

1 Idaho Legislature s Public Defense Interim Committee 2014 Sara B. Thomas, Idaho State Appellate Public Defender

2 What Is The Status Of The Public Defense Commission? What Issues Are Being Raised In Changes To The System? What Possible Enforcement Mechanisms Are Available for Public Defense Standards?

3 Creation of the Idaho Public Defense Commission Most of the commission members have been appointed: Chief Justice Burdick appointed Judge Molly Huskey, Canyon County District Court The Speaker of the House appointed Representative Monks, Dist. 22B Governor Otter Appointed the following: Kimber Ricks, Madison County Commissioner representing the Idaho Association of Counties Darrel Bolz, Public Member of the Juvenile Justice Commission William Wellman, Defending Attorney, Contract Public Defender, Owyhee County Sara Thomas, representing the SAPD The Senate Pro Tempore has not yet made an appointment The Commission is scheduled to meet on August 27, 2014.

4 Questions Regarding the Changes to Provision of Services Establishing a County Office: I.C Person vs. Candidate Contracting: What is a Flat Fee contract? What should be in a contract? How do we monitor a contract?

5 Establishing a County Office - I.C , cont. Provide for the establishment, maintenance and support of his office. The board of county commissioners shall appoint a public defender from a panel of not more than five (5) and not fewer than three (3) persons, if that many are available. Panel designated by a committee of lawyers appointed by the administrative judge of the judicial district encompassing the county or his designee. To be a candidate, a person must be licensed to practice law in this state and must be competent to counsel and defend a person charged with a crime.

6 Contracting: I.C (4) Contracting with a defending attorney, provided that the terms of the contract shall not include any pricing structure that charges or pays a single fixed fee for the services and expenses of the attorney. The contract provisions of this subsection shall apply to all contracts entered into or renewed on or after the effective date of this act.

7 Contracting For Indigent Defense Services, A Special Report U.S. Department of Justice Office of Justice Programs Bureau of Justice Assistance

8 Characteristics of Deficient Contract Systems: Place cost containment before quality. Create incentives to plead cases out early rather than go to trial. Result in lawyers with fewer qualifications and less training doing a greater percentage of the work. Offer limited training, supervision, or continuing education to new attorneys or managers. Reward low bids rather than realistic bids. Provide unrealistic caseload limits or no limits at all. Do not provide support staff or investigative or expert services. Result in case dumping that shifts cost burdens back to the institutional defender. Do not provide for independent monitoring or evaluation of performance outside of costs per case. Do not include a case-tracking or case management system and do not incorporate a strategy for case weighting.

9 Characteristics of Effective Contract Systems: Minimum attorney qualifications. Provisions for support costs such as paralegals, investigators, and social workers. Independent oversight and monitoring. Workload caps. Limitations on the practice of law outside the contract. Provisions for completing cases if the contract is completed but breached or not renewed. Caseload caps. Case management and tracking requirements. Guidelines on client contact and notification of appointment. A mechanism for oversight and evaluation.

10 Monitoring and Evaluation Current Reporting Requirements: I.C (1) A defending attorney shall keep appropriate records respecting each person whom he represents under this act. (2) Defending attorneys shall submit an annual report to the board of county commissioners and the appropriate administrative district judge showing the number of persons represented under this act, the crimes involved and the expenditures, totaled by kind, made in carrying out the responsibilities imposed by this act.

11 Additional Information You May Want To Know: In order to justify public defense spending to constituents, you way want additional information. You may also want additional information to ensure that the county is meeting its obligations and not subjecting itself to unnecessary claims or litigation. Examples include: Number of attorneys handling the cases (workloads/caseloads) Number of support staff or additional staff employed Number of cases conflicted out and general explanation for conflicts Hours dedicated to PD services Hours dedicated to outside legal practice Number of bench trials / jury trials Grants applied for to obtain services

12 Resources NLADA Guidelines for Negotiating and Awarding Indigent Defense Contracts: Contracts#partone DOJ Compendium of Standards for Administration of Defense Services: NLADA Model Contract: Oregon s Model Contract: pdf ABA Criminal Justice Standards The Defense Function: andards_dfunc_toc.html

13 Effective Standards Enforcement Mechanisms The Implementation and Impact of Indigent Defense Standards, S. Wallace & D. Carroll, Natn l Institute of Justice, Office of Justice Programs, U. S. Department of Justice 2003

14 Four Methods of Implementing Standards and Impact of Standards 1. State Funding Conditioned Upon Compliance with Standards 2. Voluntary National Standards Applied Through An Outside Audit 3. Standards Implemented Via Contracting for Services 4. Statutory Standards

15 State Funding Conditioned Upon Compliance with Standards Vanderburgh County, Indiana Standards written at a state level by state commission for felony and juvenile cases, and by the Supreme Court for capital cases. Counties that choose to comply are eligible to have a portion of their indigent defense costs reimbursed (40% for felony and juvenile cases, 50% for capital cases). Counties required to create a County Public Defender Board - writes a comprehensive plan for indigent defense in the account - appoints a public defender - oversees the office and its budget - submits requests for state reimbursement

16 Results: Compliance: Every county that has voluntarily complied to get reimbursement had a county board, no county that has chosen not to comply had such a board. Independence: The county boards provided a level of independence to the defense function through the requirements for appointment and membership. 3 members: one appointed by the county executive and two by the county s judges. The members appointed by the judges cannot both be from the same political party. The members may not be a judge or court employee, nor a government attorney or law enforcement officer. The members must have a record of demonstrated interest in high quality legal representation for indigent persons.

17 Resources/Parity: State standard provides that compensation for both salaried and contract public defenders should be substantially comparable. The State commission interpreted this to require that the chief public defender s salary be at least 90% of the chief prosecutor s salary. The state commission also set a minmum hourly rate for compensation of contract public defenders, plus reasonable expenses paid monthly upon counsel s request. Attorney Qualifications: A state standard establishes minimum qualifications for attorneys according to five different classifications of types or seriousness of offense, such as murder, Class A, B, or C felony, or juvenile cases. The county board adopted the state s qualification standards

18 Workload: Specific numerical caseload limits are prescribed per attorney per year in various types of cases. 150 felonies, 200 Class D felonies, 25 appeals, 250 juvenile cases For part-time defenders, the numbers are cut in half Numbers are also reduced if the attorneys lack adequate support staff. If the numerical limits are exceeded, the chief public defender must inform the appropriate judges and refuse to accept additional appointments Overall, counties were complying with the felony standards. However, the cost of immediately bringing juvenile caseloads into compliance so far exceeded the value of state reimbursement that strict enforcement would likely cause counties to withdraw from compliance of everything, sacrificing gains made in the felony cases. Thus, counties are allowed to phase in compliance with juvenile standards. Although the state commission adopted caseload limits for misdemeanors, there is no reimbursement associated with it and, thus, no enforcement mechanism. In Vanderburgh county all misdemeanor public defenders exceeded the state standard by as much as 97%.

19 The caseload standards resulted in an increase in personnel & costs: From 11 half-time (contract) attorney positions to 16 half-time (salaried) positions. Two additional full-time positions: Chief Public Defender and an Appellate Attorney. The number of juvenile and misdemeanor attorneys remained the same. The county elected to adhere to the staffing requirements set by state standards in order to be able to adopt the higher caseload limits, ensuring that it is not paying attorneys to do work that could be done for less by support staff. The costs of providing services increased from $900,000 in 2000 to $1,362,246 in The county was reimbursed $413,000 by the state for compliance, resulting in a net increase to the county of $49,246. Whether that increase to the county s costs was offset by reduced expenditures for pre-trial incarceration as a result of attorneys entering cases sooner was not studied.

20 Training: The State standard requires that adequate training be provided to all attorneys and non-attorney staff, at least equal to that provided to prosecutors and judges in Indiana. The State Public Defense Council provides training for public defenders so this is not monitored county by county. Vanderburgh County still included $6,000 for training in the public defender s budget. Attorney Performance: The Indiana Public Defender Council adopted the Performance Guidelines for Criminal Defense Representation promulgated by the NLADA in The guidelines, prescribe the necessary duties of attorneys in individual cases, such as interviewing the client, conducting investigation and discovery, filing motions and preparing for sentencing. The guidelines are not mandatory and county reimbursement is not contingent upon them. Rather, they are used for training purposes and adherence was not tracked.

21 Conclusions: Compliance appears not only to be directly related to the availability of state reimbursement, but has increased directly in relation to the rate of state reimbursement provided. When the noncapital standards were originally adopted by the Commission in 1989, compliance was voluntary, and no counties were known to be in compliance. When state reimbursement was authorized for the first time in 1993, at a rate of 25 percent, 13 counties came into compliance and filed for reimbursement. Since the rate was raised to 410 percent in 1997, an additional 37 counties have qualified for reimbursement - for a current total of 50 of Indiana's 92 counties that have opted in. Specifically, the standards that are directly tied to reimbursement are adhered to. Those that are not, are not complied with.

22 Some Effects Observed After Adopting Standards: Faster processing of cases: 1) Judges said cases could be set for trial sooner due to the reduced workloads; 2) Earlier disposition of cases, due to ability to prepare for plea negotiations sooner; 3) Trial rate nearly doubled; 4) Rate of dismissals increased. Lower jail costs: 1) Defender s earlier entry into cases resulted in earlier dispositions and reduced pretrial jail time; 2) Chief Public Defender s participation in body responsible for addressing jail crowding resulted in improved procedures for expediting bail. Uniformity and efficiency in compensation Single-Point Accountability More effective and efficient management: Improvements in organization and management and fiscal controls.

23 Voluntary National Standards Applied Through an Outside Audit Riverside County, California California maintains a county-based trial-level public defender system like Idaho. In 1999 the County Board of Supervisors hired the NLADA to do an extensive management audit of the Public Defender, comparing the office to national standards. In 2011, the county asked the NLADA for a follow-up audit to assess the degree of progress. The application of national standards was seen on the local level as critical to implementing needed change.

24 Resources and Parity: The audit found a lack of resource parity with the district attorneys was creating problems with workload and court coverage, supervision, technology, and support staff. It also found salaries of the public defenders were not at parity with those of the district attorneys. In 2002, the public defender was allotted 15 new attorneys and a net budget increase of $2.1 million dollars. Out of 40 new attorneys recommended by the first audit, by the time this study was done the public defender has received 21. The county funded improvements in the office s physical facilities, with additional space, furniture, and a training facility. An additional study of Investigator salaries resulted in increased compensation for investigators.

25 Training: Prior to the NLADA study, there was no in-house training supervisor. The office did hold brief, informal monthly sessions on various topics. The office did not reimburse attorney s costs for travel or accommodations to attend state or national trainings. After the audit, the office appointed a full-time training coordinator. The office launched an intra-net service with access to Lexis/Nexis, a motion bank, video and audio training programs, the office s policies and procedures, and other administrative and educational tools. The Office seeks scholarships for some attorneys to attend the California Public Defender s Trial Skills Institute. Management training is provided by the County s Management Supervisory Academy. Private Contractors, such as the NLADA provides training programs. If an attorney is directed to attend a training program requiring an overnight stay, the office will pay for ½ of the hotel costs.

26 Attorney Performance: The audit found that the office lacked a meaningful performance evaluation system for attorneys and other employees and recommended that performance standards based upon NLADA s Performance Guidelines for Criminal Defense Representation be developed. The audit also recommended a ratio of full-time supervisors to staff lawyer, pursuant to national standards, of no more than one supervisor to ten lawyers. The office established 9 Supervising Attorney positions, fully achieving the recommended ratio. A dedicated supervisor performance evaluation system was established. In response to the audit s recommendations for procedures to reduce staff attorneys excessive and unregulated rates of continuances, declarations of conflicts of interest, and extremely low trial rate, experienced supervisory attorneys have responsibility and authority for case management. The number of trials increase substantially, as well as an increase in favorable case outcomes.

27 Timeliness of Appointment and Contact: The audit found that the public defender was not providing representation to some 12,000 defendants per year, at felony or misdemeanor arraignments in Municipal Court, when decisions are made, including the setting of bond and uncounseled guilty pleas. A modest increase in staffing and the shifting of certain attorney assignments allowed the office to initiate representation at virtually all felony arraignments and misdemeanor custody arraignments. Attorneys for indigent in-custody defendants were now appointed at arraignment, which is held within 48 hours of arrest. Client interviews, which had previously been done by staffers, in violation of national standards, were now required to be done by attorneys within 48 hours of appointment. In-custody clients were now interviewed at the jail prior to every court appearance.

28 Workload: The audit found that the attorneys were carrying more than double the per-attorney caseload limits allowed under national standards. Caseloads still exceeded the national standards, but were now lower than the statewide norm. New office policies require attorneys to dispose of most cases within 120 days or seek approval from a supervisor before a continuance can be requested. Attorneys that believe their workloads do not permit them to provide quality representation are encouraged to notify their supervisor, and if that does not resolve the issue, notify the chief public defender. The public defender has declined to invoke the national standards requiring him to declare the office unavailable to take excessive cases, preferring to rely upon gradual improvements in staffing and workload.

29 Conclusions: Though independent standards-based audits can be an important part of improving an indigent defense system, they lack the enforcement mechanisms that formal state or local standards have when codified or adopted by Court Rule or case law. Despite sympathy for the aims of the national standards, local funding restricts the ability of jurisdictions to come into compliance quickly. Riverside County has pursued a gradual plan for meeting minimum national thresholds for quality and cost-effectiveness.

30 Standards Implemented Via Contracting for Services: Oregon Oregon has a system which relies solely upon contracts for providing defense services and is entirely state-funded. In 1999, a legislative study commission was established at the request of the Judicial Department. As a result of this study, the legislature created the Oregon Public Defender Services Commission. At the time this DOJ study was done, Oregon was transitioning supervision of the contracts to the newly created Oregon Public Defender Services Commission. The study looked at one of the 11 non-profit defense services organizations to determine how the system affects the delivery of services.

31 Advocacy & Due Process in Idaho s Trial Courts, NLADA 2010 Not all Contract Systems are Deficient: The Oregon Story, p.9 The contracts are the enforcement mechanism to ensure that state standards are met. For instance, a non-profit public defender agency is required by contract to maintain an appropriate and reasonable number of full-time attorneys and support staff to perform its contract obligations. If a defender agency cannot meet this requirement, or to the extent that the agency lawyers are found to be handling a substantial private caseload, the contract will not be renewed. And, instead of pure caseload limits, the allocation of case numbers among different categories of cases according to the number of hours commonly required for each type of case essentially constitutes a case weighting system, i.e., measuring work-load rather than caseload and allowing more sophisticated planning for the office s actual work and staffing needs.

32 In effect, the contract public defender office monitors its intake and can project the degree of compliance with its estimated workload on a week-byweek basis. It notifies the court promptly if workloads are being exceeded and additional appointments must be declined. This flexibility allows the office to consistently maintain a uniform quality of service and manageable workloads even during periods of lower-than-normal staff levels due to turnover, sickness or other authorized leave. Other Standards from the Oregon Model Contract Address: Standards of representation Specific Representation Services Client contact standards Reporting requirements Limitations on outside work Malpractice Insurance Indemnification Of PDSC by the Contractor

33 Statutorily Required and Imposed Statewide Standards Massachusetts A statute directed the statewide public defense agency, the Committee for Public Counsel Services (CPCS) to write, monitor and enforce standards in a variety of areas, covering both public defender offices and private assigned counsel. Most services were provided under the supervision of CPCS, which contracted with 12 local bar advocate programs to monitor and provide supervision to the private bar accepting cases at the local level. CPCs also had a public defender division with approximately 130 staff attorneys handling cases through 13 regional offices.

34 The CPCS is statutorily required to establish standards related to: Continuous ("vertical") representation through both the pre-trial and trial stages, whenever possible; Mandatory training in the fundamentals of criminal trial practice, unless the attorney has a level of ability which makes such training unnecessary; Caseload limits; Access to investigative services, social services or social service referrals, expert witnesses, clerical assistance, interview facilities, and a law library and model forms; and Adequate supervision provided by experienced attorneys.

35 Independence: Independence of the defense function was provided through the statutory assignment of developing standards to the independent CPCS. Qualification, Performance, Training and Workload: Attorneys accepting misdemeanor and lesser felony cases must be certified by CPCS to take cases. Attorney must apply to and be accepted by on of the bar county advocate programs and attend a 5-day training program. Attorneys taking Superior Court cases must be individually approved by the Chief Counsel of CPCS, whose decision is informed by the recommendation of a Certified Advisory Board composed of eminent private attorneys from each geographical location. Attorney s taking Superior Court cases must have proof of minimum prior experience qualifications, recommendations from three other attorneys, and must maintain 8 credits of continuing education each year. Certification for first and second degree murder cases requires heighted experience requirements.

36 By being certified, attorneys agree to: Participate in a mandatory program of mentoring and supervision overseen by the Bar Advocacy Programs. Abide by a set of rigorous performance guidelines that set out attorney responsibilities at every stage of the case, for each specific type of case the attorney is qualified to handle. Abide by numerical caseload limits. Billable hour limits for both day and year. Enforcement: Enforcement is provided by each of the County Bar Advocate programs. Each program must employ supervisors to evaluate appointed counsel, provide assistance and training, and to investigate complaints. Performance reviews may result in a referral to the financial auditing unit of the CPCS.

37 Thank You