REPORT

Introduction

The 11 principles is a practical guide for governmental official, policymakers, and other parties who are charged with creating and funding new, or improving existing, systems by which public defense services are delivered within Michigan ¹. More often than not, these individuals unfamiliar with the breadth and complexity of material written about criminal defense law, including the multitude of scholarly national standards concerning the issue of what constitutes quality legal representation for criminal defendants. Further, they operate under severe time constraints and do not have the time to wade through the body of standards; they need quick and easy, yet still reliable and accurate, guidance to enable them to make key decisions.

As explained more fully in the sections that follow, "The Eleven Principles of a Public Defense Delivery System" fulfills this need. It represents an effort to sift through the various sets of national standards and package, in a concise and easily understandable form, only those fundamental criteria that are absolutely crucial for the responsible parties to follow in order to design a system that provides effective and efficient, high quality, ethical, conflict-free legal representation for criminal defendants who are unable to afford an attorney. By adopting "The Eleven Principles of a Public Defense Delivery System," the Michigan Bar Association created, for the first time in Michigan, much-needed policy directed toward guiding the designers of public defense delivery systems.

The Need Policy Geared Toward Designers of Public Defense Delivery Systems

These Eleven Principles are derived from the "Ten Principles of a Public Defense Delivery Systems" adopted by the American Bar Association in February 2002. The Principles were developed by the ABA's Standing Committee on Legal Aid and Indigent Defendants (SCLAID). SCLAID has provided technical assistance in all 50 states to bar leaders, legislators, and others interested in improving public defense services. Through their extensive work in the states, they learned that oftentimes, the people who have the primary responsibility for establishing or improving public defense delivery systems are not lawyers and have little or no knowledge in the area of criminal defense services. In the state legislatures, where many choices are made regarding the design and funding of these systems, there appears to be a growing trend-the number of legislators who are also lawyers (and who would therefore better understand these issues) is declining, and their terms are getting shorter. This is very true in Michigan. In addition, term limits will at once reduce the time legislators have to learn about the issue and remove experienced non-lawyers such as Senator Van Regenmorter who chairs the Senate Judiciary Committee along with most of his colleagues.

Another trend is that in many states, the legislature, supreme court, governor, or state bar association authorizes a "study commission" or "task force" to recommend plans for establishing or improving public defense delivery systems. This is especially the case as the crisis in indigent defense-in terms of quality of services and resource availability-continues to deepen across the country. These task forces generally have broad representation from all branches of government and many sectors of the community. For example, task forces that were recently established in North Carolina and Georgia include state legislators, judges, heads of executive agencies, private attorneys, and members of the community. In Michigan, a community organization called the Michigan Council on Crime and Delinquency has taken the lead and organized a task force composed primarily of non-defense attorney groups to recommend to the legislature a model plan for public defense services in Michigan. The commonality among all the task forces is the fact that the members volunteer their time and operate under tight deadlines within which recommendations must be made or else the window of opportunity closes, for political or other reasons.

There is no question that the people who are making these important decisions under such severe time constraints need reliable guidance that is presented in an easily understandable, concise, and succinct package. SCLAID has received numerous requests for ABA policy written for and directed at the government officials and others who are responsible for designing public defense delivery systems; unfortunately, current ABA policy (in the form of numerous sets of criminal justice standards) does not address this particularized need, as explained further below.

Overview of National Standards on Providing Criminal Defense Services

The ABA was the first organization to recognize the need for standards currently relating to the provision of criminal defense services, adopting the ABA Standards for Criminal Justice, Providing Defense Services (now in its 3rd edition) in 1967. The ABA Standards for Criminal Justice, Defense Function, soon followed in 1971, and the ABA Guidelines for Appointment and Performance of Counsel in Death Penalty Cases were adopted in 1989.

In addition, several other organizations have adopted standards in this area over the past three decades: the National Legal Aid and Defender Association adopted its Performance Guidelines for Criminal Defense Representation in 1995, Standards for the Administration of Assigned Counsel Systems in 1989, and Guidelines for Negotiating and Awarding Contracts for Criminal Defense Services in 1984; the Institute of Judicial Administration collaborated with the ABA to create the IJA/ABA Juvenile Justice Standards, totaling 23 volumes adopted from 1979 through 1980; the National Study Commission on Defense Services adopted its Guidelines for Legal Defense Systems in the United States in 1976; and the President's National Advisory Commission on Criminal Justice Standards and Goals adopted Chapter 13, The Defense, in 1973.

Collectively, these standards contain the minimum requirements for legal representation at the trial, appeals, juvenile, and death penalty levels and are a scholarly, impressive, and extremely useful body of work. However, they are written for the most part for lawyers who provide defense services, not for governmental officials or policymakers who design the systems by which these services are delivered. As the Introduction to the ABA Standards for Criminal Justice, Defense Function notes, "The Defense Function Standards have been drafted and adopted by the ABA in an attempt to ascertain a consensus view of all segments of the criminal justice community about what good, professional practice is and should be. Hence, these are extremely useful standards for consultation by lawyers and judges who want to do 'the right thing' or, as important, to avoid doing 'the wrong thing.'" Further, the sheer volume of the standards make it impracticable for policymakers or others charged with designing systems to wade through them in order to find information of relevance to their duties. Indeed, even one of the smallest of the volumes, the ABA Standards for Criminal Justice, Defense Function, is 71 pages in length and contains 43 black letter standards with accompanying commentary. Thus, the standards do not address the particular need for ABA policy expressly directed toward those who are responsible for designing and funding systems at the state and local levels.

In addition, the black letter "Eleven Principles" was adopted by the State Bar Representative Assembly in April of 2002. They added an 11th principle that speaks to the involvement of defender offices in the design and operation of alternative and effective sentencing programs. The high volume defender offices can have a profound impact on the lives of their clients while providing a zealous defense. Much in the same manner as community policing, this advance in the role of the defender office can make the defender office at once more effective and more involved in the communities they serve.