Gideon Alert: Best practices on display in Oregon and Santa Clara County (San Jose), California

BY David Carroll on Friday, June 25, 2010 at 12:24 PM

As jurisdictions across the country struggle to overcome right to counsel systemic deficiencies, it is valuable to remember that some jurisdictions do serve as best practice models.  For example, the Oregon Public Defender Services Commission has total authority to establish and maintain a public defense system that ensures quality, effectiveness, efficiency and accountability of their defense services are consistent with national standards.  This includes the authority to regulate professional qualification standards for appointed counsel and procedures for contracting public defense services. 

All Oregon indigent defense services at the trial level are decentralized, with 100 percent of the funding provided by the state through a series of contracts with private attorneys, consortia of private attorneys, or private non-profit defender agencies.  These contracts are the enforcement mechanism that ensures 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 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.

Oregon also enforces strict workload standards in their contracts, as demonstrated in the June 25th, 2010 Southern Oregon Mail Tribune article “Murder Cases Postponed: No Defenders Available.”  A typical contract with a 501c3 non-profit public defender sets the precise total number of cases to be handled during the contract term, with specific numbers for different types of cases, because each type normally requires different amounts of work.  Instead of the commonly used cases-per-attorney-per-year formulation of numerical caseload limits, the Oregon system reflects overall numerical caseload limits for all staff in the office combined. And, instead of a simple limit on the number of cases, the allocation of case numbers among different types of cases based on the number of hours commonly required to defend that type of case essentially provides a case “weighting” system.  This measures “workload” rather than caseload and allows more sophisticated planning for the office’s actual work and staffing needs.

Every six months, there is a budget review process with state funding officials, during which extra funding may be negotiated for extra work performed; for example, for cases which required more than the usual amount of time for the type of case, like “three-strikes” cases.  In effect, each contracting public defender office monitors its intake and can project the degree of compliance with its estimated workload on a week-by-week basis.  It notifies the court promptly if workloads are being exceeded and additional appointments must be declined.  If, for example, an office meets its workload level on Wednesday, all new assignments for the rest of that week must go to the private bar attorneys who have contracted to handle the overflow cases.  This flexibility allows each office to consistently maintain a uniform quality of service and to manage workloads even during periods of lower-than-normal staffing levels due to turnover, sickness or other authorized leave.  In the Mail Tribune story, the Southern Oregon Public Defenders had to turn down a murder case because they had hit the contract limit for such cases (first time in 25 years).  The overflow contract system needed more time to free up an attorney to accept the case.

County-based systems can also serve as best practice models to the nation.  Far too many California counties are struggling just to maintain their current staffing levels -- staffing levels that are already forcing defenders to carry caseloads far in excess of national standards (see past Gideon AlertsYolo County, Los Angeles, Sacramento & San Joaquin).  Yet the San Jose Mercury News reports that Santa Clara County has increased funding to its public defender office to ensure that attorneys are provided for misdemeanor arraignments of the indigent. 

Throughout the country, people of insufficient means are routinely processed through misdemeanor courts without ever having spoken to an attorney.  Local jurisdictions get around their constitutional obligation to provide lawyers in misdemeanor cases in a myriad of ways, including accepting uninformed waivers of counsel, pressuring defendants to “work out a deal” with the prosecutor prior to being given publicly-financed defense counsel, and threatening unfair cost recovery measures.  Although misdemeanor convictions or sentences may not result in lengthy incarceration, the life consequences of convictions can be severe, including job loss, family breakup, substance abuse, and deportation – all factors that tend to foster recidivism.  [For more on the failure of America's misdemeanor courts to uphold the Constitutional right to counsel, please see the National Association of Criminal Defense Lawyers' report Minor Crimes, Major Wastes.]

Santa Clara County is reversing the national trend by expanding the public defender office to cover misdemeanor arraignment courts.  As one of the most experienced prosecutors in the county notes in the story: "Every time you have a system that doesn't have representation for defendants then they don't know what the right thing to do is.”  The prosecutor continues: "They are not cautious.  They just look at the short term.  'I want out now and I will get out sooner if I plead now.'  If you have attorney in there it will take longer, but their rights are more protected.''

For more on the Santa Clara public defender office, please see NLADA's 2003 report on the office.