Systemic accountability through an independent commission – ABA Principle 1

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An indi­gent defense system’s effectiveness must be measured solely by the quality of services provided to its clients. If whole categories of indigent defendants receive a level of advocacy that falls short of constitutional demands – an inevitability anywhere services are triaged in favor of some but to the detriment of others – or if equally large categories of indigent defendants receive no repre­sentation at all, then the system itself is in default of its obligations.

In many ways, systemic accountability is tied directly to the independence of the defense function. For example, we know that judges cannot act as supervisor of the individual lawyers or the system itself. We also know that it cannot be politicians (whether the governor or the county administration) or their political appointees. How then can this apparent paradox be resolved? How can the system remain independent of outside interference, yet concurrently be held accountable to minimum constitutional demands?

The answer is to provide systemic oversight through an independent board, whose members are appointed by diverse authorities to ensure that no one component of government (e.g., the governor, or the judiciary) can exert outsize influence over the delivery of public defense services.

The commentary to ABA Principle 1 specifically recommends that in order to “safeguard in­dependence and to promote the efficiency and quality of services, a nonpartisan board should oversee defender, assigned counsel, or contract systems.” Importantly, the commission should be made up of members selected by diverse appointing authorities such that no single branch of government has the ability to usurp power over the chief defender.

To be sure, independent commissions are not a “blank check” for indigent defense sys­tems. Legislatures certainly have the power to say “no” to any budget requests. But what distinguishes functioning public defense systems from those without sufficient systemic independence is, if resource requirements are not met, those functioning systems can refuse to take on the additional cases they cannot effectively handle without fear that the chief defender will be fired or not reappointed when his term is up. Or, in the case of a system that contracts with private lawyers for services, the independent board ensures that those private lawyers likewise can refuse cases without fear of losing their annual contracts. (To be clear, not all existing statewide commissions are constructed in accordance with national standards.)

Further still, in states with an independent commission overseeing right to counsel services in which all three branches of government, the state bar, and accredited law schools all have an equal stake in the system, the system’s chief executive has a team of people on which to call upon to help educate the legislature (or the county commission) about the need for improved services on a continual basis rather than being limited to budget presentations.

Without such support and systemic insulation, the chief executive may ask for ample resources each and every year, but if his budget requests are not granted he is not free to then do anything about it.

Q: Do all statewide indigent defense commissions offer the same protection against undue political and judicial interference?

A: No.

When looking at indigent defense commissions, it is very important to understand the structural differences existing between the various state models. Some statewide commissions cover only a part of a system (e.g., an “appellate only” commission), part of a state’s geography (e.g., a rural public defense commission), or offer only limited oversight of a system in exchange for state financial support. Such states are defined as having commissions with “limited authority.”

Perhaps more importantly, some indigent defense commissions follow national standards more rigorously and offer greater protection of the system. Those states that fall short of national standards are also defined as having limited authority. We will explain.

National standards are clear that the defense function must be insulated from outside political or judicial interference by a board or commission appointed from diverse au­thorities, so that no one branch of government can exert more control over the system than any others. For example, footnotes to the first of the American Bar Association Ten Principles of a Public Defense Delivery System refer to National Study Commission on Defense Services’ (NSC) Guidelines for Legal Defense Systems in the United States (1976). The Guidelines were created in consultation with the United States Department of Justice (DOJ) under a DOJ Law Enforcement Assistance Administration (LEAA) grant. NSC Guideline 2.10 (The Defender Commission) states in part:

A special Defender Commission should be established for every defender system, whether public or private. The Commission should consist of from nine to thirteen members, depending upon the size of the community, the number of identifiable factions or components of the client population, and judgments as to which non-cli­ent groups should be represented. Commission members should be selected under the following criteria: The primary consideration in establishing the composition of the Commission should be ensuring the independence of the Defender Director. (a) The members of the Commission should represent a diversity of factions in order to ensure insulation from partisan politics. (b) No single branch of government should have a majority of votes on the Commission.

Q: Is it better for an indigent defense system to be housed in the judicial or executive branch of government?

A: No, it makes no difference.

An American Bar Association (ABA) report on state indigent defense commissions concludes, “experience shows that there is no clear advantage to location in the judicial or executive branch.” What the ABA does conclude as important to the success of an indigent defense commission is that statutory language ensure that the commission is “independent” no matter in which branch of government it is placed.