As an overwhelmed court system and a severe budget crunch threaten to undermine the public's constitutional right to counsel, some public defenders are turning to a new technique? one they say can change the future of indigent representation.
One convert is Chief Public Defender Jeremy Bosler of Washoe County, Nevada, who had grown tired of seeing the same people cycling through his office regardless of the severity of jail or prison sentences. The “repeat business,” he recalled, triggered a search for a better alternative.
The Washoe County public office is not alone. The Crime Report reported previously on the crisis in the public defense system, showing that the staggering case load, almost 5.6 million cases a year, for the few public defenders available has created one of the most egregious gaps in the U.S. justice system.
Thousands of poor people, many of them minorities, have been left with a stark choice: plead guilty and accept whatever punishment is meted out; or put themselves at the mercy of the court. And more troubling still, critics of the system note that many public defenders or attorneys assigned by the court do not have the training or time to build an adequate defense.
“There is no challenge more fundamental to the future health of the criminal justice system than the dismal state of indigent criminal defense services in this country,” New York State Chief Judge Jonathan Lippman told the Harry Frank Guggenheim Symposium on Crime in America last month. “Countless thousands of indigent defendants are subjected to assembly line treatment that is miles removed from the ideal of equal justice for all.
Lippman told the conference of journalists, practitioners and judges that since April, 2010 New York City has begun phasing in rules establishing caps on the number of cases an attorney can be asked to handle when representing indigent defendants, and he created a nine-member Indigent Legal Services Board to examine areas of statewide improvement.
Making changes in a resource-strained small county of 400,000 people seemed , however, all but impossible—until Bosler heard about the Bronx Defenders, a non-profit launched in 1997 that deploys an interdisciplinary team of criminal, civil and family defense lawyers, social workers, parent advocates, investigators, and community organizers created to serve clients and their families in one of New York City's most troubled communities.
The method has been called “holistic defense” and it breaks down into four pillars, according to Alex Sierck, the director of the Holistic Defense Project at Bronx Defenders and a public defender for over 13 years.
A “systematic” articulation of holistic defense includes “access to legal and non-legal services for clients, advocates with interdisciplinary skill sets and communication, with an understanding and connection to the community,” explains Sierck.
Here's how it works. When a client come to the Bronx Defenders, the initial consultation could reveal that he/she has “collateral issues.” For example, if the crime the defendant is charged with can affect their immigration status, Sierck explained, The Bronx Defenders can assign an in- house immigration lawyer to work with the designated attorney on how to structure the plea so it won’t effect their citizenship status. Additionally, social workers on staff can help defendants with housing or licensing issues.
And this strategy has worked. The average acquittal rate for jury trials in the Bronx is 57.4 percent, but The Bronx Defenders' trial win rate from July 2003 to June 2005 was 86.7 percent, according to an evaluation completed in 2006. Clients, if convicted, are 3.4 times more likely to be sentenced to a conditional discharge than indigent defense clients overall in the Bronx; and at the time of intake, a client of The Bronx Defenders is 60 percent more likely to have his case dismissed than indigent defense clients overall in the Bronx – a county with a high dismissal rate in NYC.
In 2010, the Bronx Defenders processed 12,000 cases and are on track to double that number in 2011 as a result of a new city contract.
In 2009, The Bronx Defenders approach went national. The Department of Justice granted the Bronx Defenders $250,000 to provide technical assistance to indigent defense offices around the country.
Washoe County, along with Wisconsin State Public Defender office and the public defender in Knoxville, Tennessee, were the first recipients to participate in the program.
Bosler, of Washoe County, said that that the technical assistance provided by Bronx Defenders has helped his office form new relationships with other offices that he would have never previously have contemplated.
“We have started to look out of our general circle,” Bosler said, citing his office's new relationship with the sheriff's office. Together, the two previously adversarial organizations have applied for a grant they believe can help both of their clients. They are just concluding their technical assistance period with the Bronx Defenders, and Bosler estimates it could be a year or two for the changes to take effect.
The DOJ grant to Bronx Defenders was renewed in the fall of 2010 for another $250,000, with three more offices to be picked for technical assistance this spring.
Bolstered by Attorney General Eric Holder's interest in the topic and the Obama's administration support of indigent defense with projects such as The Access to Justice Initiative, a Federal program that works to increase access to quality counsel though innovative measures, coupled with the need for cutting criminal justice costs, the program hopes to create a sea change in the way that public defenders do business.
But will it catch on?
An attorney's typical approach is to parse through any legal approach that would help clients avoid jail or prison time and then close the case. But lawyers interviewed by The Crime Report say holistic defense has them working with defendants to look at underlying issues that may put them on a track towards crime, such as family problems, substandard housing, poor learning skills or educational background, and immigration issues. By surrounding clients with resources and services that can address such problems, holistic defense aims to stop defendants from being rearrested.
Not Taught in Law School
“This is not a technique taught in law school,” says Bosler. “(But) it can impact case outcomes and life outcomes.”
Data is still being analyzed, but Sierck and his associates believe this approach produces reduced recidivism and greater public safety. And additionally, they say, it can help reduce costs in the criminal justice system by stopping repeat criminals, who cost taxpayers millions, in the pre-trial phase.
Yet, although many of the experts interviewed for this article attest to the success of utilizing this program, data-driven research is scant.
“There is a unanimous view in the public defense community that holistic-based representation is great for the client and great for broader criminal justice system and is the direction in which most people would want to go,” says David Carroll, director of research for the National Legal Aid & Defender Association (NLADA).
Still, Carroll has pressed for more concrete results from programs in an effort to drive this movement forward. The Bronx Defenders have hired a research team with some of their funds to evaluate their efforts. Results are not expected until well after the grant concludes in October 2011.
Another staunch advocate of the holistic approach is Joshua Dohan, Director of the Youth Advocacy Project, the only juvenile defender unit of the Massachusetts statewide public defender agency. A public defender since 1988, Dohan has been working on providing the 500 to 1,000 juveniles offenders his agency sees every year with holistic defense.
As he explains, the privileged attorney-client relationship is already conducive to establishing trust between public defenders and the young people, along with their families—which makes it possible to introduce counseling that can help them break the cycle of recidivism.
And, not insignificantly, Dohan adds, it can save taxpayers “millions of dollars” that would have been spent on a young person who would otherwise become snared in the justice system for a lifetime. “Implementing even the simplest of ideas fostered by holistic defense, could turn tax consumers into taxpayers,” Dohan said.
Despite the lack of data-supported results, such arguments are starting to prove persuasive to local policymakers around the country, says Carroll of NLADA.
“We are just starting to see a tipping point where state and county policymakers are coming to an understanding that an investment on the front end of the criminal justice system with holistic representation will save money on the back end through reductions in corrections spending and lower recidivism rates,” he wrote in a later email.
Cara Tabachnick is News & Content Editor of The Crime Report.