CONTRACTING FOR INDIGENT DEFENSE SERVICES · worst features of contract ... *Throughout this special report, the term contractrefers to legal ... of contracts do not adequately guarantee

CONTRACTING FORINDIGENT DEFENSESERVICESA SPECIAL REPORT

MonographMonograph

I N D I G E N T D E F E N S E S E R I E S

U.S. Department of Justice

Office of Justice Programs

Bureau of Justice Assistance

#3


U.S. Department of JusticeOffice of Justice Programs

810 Seventh Street NW.Washington, DC 20531

Janet RenoAttorney General

Daniel MarcusActing Associate Attorney General

Mary Lou LearyActing Assistant Attorney General

Nancy E. GistDirector, Bureau of Justice Assistance

Office of Justice ProgramsWorld Wide Web Home Page

www.ojp.usdoj.gov

Bureau of Justice AssistanceWorld Wide Web Home Page

www.ojp.usdoj.gov/BJA

For grant and funding information contactU.S. Department of Justice Response Center

1–800–421–6770

This document was prepared by The Spangenberg Group for the Bureau of Justice Assistance,Office of Justice Programs,U.S.Department of Justice. The opinions, findings,and conclusionsor recommendations expressed in this document are those of the authors and do not neces-sarily represent the official position or policies of the U.S.Department of Justice.

The Bureau of Justice Assistance is a component of the Office of Justice Programs, which alsoincludes the Bureau of Justice Statistics, the National Institute of Justice, the Office of Juvenile Justiceand Delinquency Prevention, and the Office for Victims of Crime.

Monograph 5/25/00 4:50 PM Page cov2


April 2000

NCJ 181160

Prepared by The Spangenberg Group Robert L. Spangenberg, Marea L. Beeman, David J. Carroll,

David Freedman, Evelyn Pan, David J. Newhouse, Dorothy Chan

iiiBUREAU OF JUSTICE ASSISTANCE

Too often, citizens and public officials do not acknowledge that ade-quately supporting indigent defenders is critical to preserving the constitu-tional rights of individuals accused of crimes. To function properly, thecriminal justice system needs all of its components—prosecution, adjudica-tion, corrections, and defense—operating effectively.

One important way we can bolster indigent defense in this country isby educating criminal justice practitioners, elected officials, and the publicabout the challenges facing the indigent defense community. This BJAreport series addresses key issues that attorneys and managers in indigentdefense systems struggle with every day. It is our hope that the informationand recommendations provided here serve as a valuable resource for all ofus working to improve the justice system.

From the Director

vBUREAU OF JUSTICE ASSISTANCE

I. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

II. History of Indigent Defense Contracting in the United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Judicial Responses to Contract Systems. . . . . . . . . . . . . . . . . . 5

Legislatures and Contract Systems. . . . . . . . . . . . . . . . . . . . . . 7

The New York City Experience. . . . . . . . . . . . . . . . . . . . . . . . . 8

Empirical Studies of Contracting Systems . . . . . . . . . . . . . . . 10

III. Characteristics of Deficient and Effective Contract Systems . . . . . 13

Characteristics of Deficient Contract Systems . . . . . . . . . . . . . 13

Characteristics of Effective Contract Systems . . . . . . . . . . . . . 16

IV. Conclusion: Lessons Learned . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

V. Appendix: National Standards . . . . . . . . . . . . . . . . . . . . . . . . . . 23

VI. For More Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Contents

1BUREAU OF JUSTICE ASSISTANCE

I. Introduction

In 1997 and 1998, a rural countyin California agreed to pay a low-bid contractor slightly more than$400,000 a year to represent halfof the county’s indigent defen-dants. The contractor was a privatepractitioner who employed twoassociates and two secretaries, butno paralegal or investigator. Thecontract required the contractor tohandle more than 5,000 caseseach year. All of the contractor’sexpenses came out of the contract.To make a profit, the contractorhad to spend as little time as pos-sible on each case. In 1998, thecontractor took fewer than 20cases—less than 0.5 percent of thecombined felony and misdemeanorcaseload—to trial.

One of the contractor’s associ-ates was assigned only casesinvolving misdemeanors. She car-ried a caseload of between 250and 300 cases per month. Theassociate had never tried a casebefore a jury. She was expected toplead cases at the defendant’s firstappearance in court so she could

move on to the next case. Oneafternoon, however, the associatewas given a felony case scheduledfor trial the following week. Thecase involved multiple felony andmisdemeanor charges. When shelooked at the case file, the associ-ate discovered that no pretrialmotions had been filed, no witnesslist had been compiled, no expertwitnesses had been endorsed, andno one had been subpoenaed. Inshort, there had been no investiga-tion of any kind into the case, andshe had no one to help her with thebasics of her first jury trial.

The only material in the case filewas five pages of police reports. Inthese reports she found evidenceof a warrantless search, which indi-cated strong grounds for suppres-sion. She told the judge she wasnot ready to proceed and that acontinuance was necessary to preserve the defendant’s sixthamendment right to counsel. Thecontinuance was denied. The associate refused to move forwardwith the case. The contractor’s

About the Authors of This Special ReportThis special report was researched and written by the staff of The

Spangenberg Group, a nationally recognized criminal justice research and consulting firm working to improve the delivery of indigent defense services.Located in West Newton, Massachusetts, The Spangenberg Group has provid-ed research and technical assistance for justice organizations in every state inthe nation.

other associate took over the caseand pled the client guilty to allcharges. The associate who hadasked for a continuance was fired.

In this California county, critics’worst fears about indigent defensecontract systems came true. Whencontract systems are created forthe sole purpose of containingcosts, they pose significant risks tothe quality of representation andthe integrity of the criminal justice system. We have also learned,however, that contract systems

work when appropriate safeguardsare developed and implemented.

This special report was writtenfor individuals in the justice systemwho are using, considering, orimplementing an indigent defensecontract system. The report pre-sents the major judicial and legisla-tive attempts to deal with thosesystems, examines the best andworst features of contract systems,and discusses the national stan-dards that govern contract systems.

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CONTRACTING FOR INDIGENT DEFENSE SERVICES

*Throughout this special report, the term contract refers to legal agreementsbetween a provider and funder. This excludes staff-based programs with annu-al budgets (traditional public defender agencies) but includes nonprofit corpo-rations under contract with a funder (usually in response to a bidding process),part-time contractors, and contractors who may be referred to as the jurisdic-tion’s public defender. The term contractors refers to the attorney, law firm,associated attorneys or firms, or organization (nonprofit or for-profit) that pro-vides representation to indigent persons under contract.


II. History of Indigent DefenseContracting in the United States

Two landmark decisions of theU.S. Supreme Court, Gideon v.Wainwright, 372 U.S. 335 (1963)and Argersinger v. Hamlin, 407 U.S.25 (1972), paved the way for theappointment of counsel to representindigent defendants in state court.These decisions left to the states theresponsibility to determine how toestablish and fund systems to pro-vide representation to indigentdefendants. Some states, in turn,shifted the responsibility to individ-ual counties.

Initially, the vast majority of juris-dictions provided indigent defensethrough either assigned counsel ora public defender office. But in thepast 15 years, the number of juris-dictions providing some portion oftheir indigent defense through acontract system has increased dramatically. More recently, somejurisdictions have replaced as-signed counsel programs with con-tracting. Very few jurisdictions havereplaced public defender officeswith contracting.

There are a number of reasonscontract systems are becomingmore prevalent. First, the percent-age of defendants in criminal casesreceiving court-appointed counsel isgrowing.1 Second, in some jurisdic-tions with a primary defender orga-nization, conflict caseloads2 andcase overload increasingly are beinghandled by contractors rather thanby assigned counsel. Third, fundingauthorities are seeking ways toreduce costs through privatizingpublic sector services, includingindigent defense services. Andfourth, efforts are under way, as inNew York City, to reduce the budgetand the number of cases handled bylarge institutional public defenderoffices by putting portions of theirprimary work out for bid.

Critics of contract programs traditionally have raised two con-cerns.3 The first is that contractprograms will inevitably lead to alower standard of representationthrough the bidding system, whichemphasizes cost over quality. The

1 It is widely estimated that 60 to 90 percent of all criminal cases involve indigent defendants.2 The term conflict caseloads refers to cases in which the primary public defender organizationhas a conflict of interest (for example, cases involving codefendants or cases in which a witnessagainst the defendant was previously represented by the public defender).3 See, for example, Nelson, Meredith Anne, 1988, “Quality Control for Indigent DefenseContracts,” California Law Review 76: 1174; Spangenberg, Robert L., Marea L. Beeman, andCatherine L. Schaefer, 1996, “Questions and Answers Concerning Fixed Price Contracts for

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Types of Contracts

Across the nation, jurisdictions are using a variety of contracts to provideindigent defense services. The following is a brief description of each type.

Fixed-Fee, All Cases—specifies the total amount of compensation thelawyer will receive for work on all cases he or she is assigned during a speci-fied contract period. The number of cases assigned to the attorney is notcapped; he or she is expected to accept all appointments that arise in thejurisdiction except those in which there is a conflict of interest.

Fixed-Fee, Specific Type of Case—establishes the total amount of compen-sation the lawyer will receive, but it specifies a particular type of case as well(e.g., all misdemeanors). There is no limit to the number of cases an attorneywill be assigned during the contract period.

Flat Fee, Specific Number of Cases—pays a flat fee for all work completedbased on a specific number of cases the attorney agrees to accept during thecontract period.

Flat Fee Per Case—establishes a fee by case type (e.g., $150 per misde-meanor), and the attorney agrees to take all cases of that type that arise in thejurisdiction during the contract period.

Hourly Fee With Caps—pays the attorney an hourly fee established in thecontract but includes a cap on the total amount of compensation he or shecan receive. Once the ceiling is reached, the attorney may be required to per-form additional work without compensation.

Hourly Fee Without Caps—pays the attorney an hourly fee established inthe contract, but also covers the actual expenses of each case.

In jurisdictions using fixed-fee and flat fee, specific number of cases con-tracts, the funder knows in advance the total costs associated with representa-tion, regardless of fluctuations or peculiarities in charging practices, caseloads,or case type during the course of the contract. As a result, these types of con-tracts appeal to funders. The regularity of payment appeals to some attorneys,too. These systems have been criticized by many observers, however, becauseof the pressure they create to resolve cases as early as possible.

Under flat fee per case and hourly fee contracts, total costs to funders canvary over of the course of the contract, depending on variables outside thecontrol of the contracting attorney and the funder. As a result, some fundershave concluded that these types of contracts do not adequately guarantee thecontract’s maximum cost.

Representation of Indigent Defendants,” Report for the American Bar Association StandingCommittee on Legal Aid and Indigent Defendants, Bar Information Program, Washington, DC:American Bar Association; National Association of Criminal Defense Lawyers, 1997, Low-BidCriminal Defense Contracting: Justice in Retreat, Washington, DC.

History of Indigent Defense Contracting in the United States


second concern is that the privatebar no longer will play a role inindigent defense. Contract pro-grams that replace appointedcounsel systems generally requirefar fewer private attorneys. Withfewer private bar participants, critics caution, one of the sixthamendment’s most important allieswill possibly vanish.

Judicial Responses toContract Systems

Legal challenges to contract sys-tems have provided importantinsights into how they developed.In State v. Smith, the ArizonaSupreme Court, in 1984, struckdown Mohave County’s contractdefense system, which for severalyears solicited sealed bids from pri-vate bar members. The court’s opinion established a widely citedstandard for assessing the constitu-tionality of a low-bid contract system.

The decision cites the NationalLegal Aid & Defender Association’s(NLADA’s) Guidelines for Negoti-ating and Awarding Indigent De-fense Contracts and the AmericanBar Association’s (ABA’s) Stan-dards for Criminal Justice and con-cludes that Mohave County’ssystem did not conform to thosestandards in four areas. The sys-tem did not take into account thetime the attorney was expected tospend representing his or her shareof indigent defendants; it did notprovide support for costs such asinvestigators, paralegals, and lawclerks; it failed to take into account

the complexity of each case; and itfailed to take into account thecompetency of the attorney.

In another important case,People v. Barboza, the CaliforniaSupreme Court, in 1981, foundthat a contract for provision ofdefense services between thecounty of Madera and an attorneywas invalid because it createdfinancial disincentives for the attor-ney to state a conflict of interest.The case arose from an assaultwith a deadly weapon convictionwith multiple defendants in whichthe contract attorney representedboth defendants. Under the con-tract, the Madera County publicdefender was paid $104,000 peryear. From this total, $15,000 wasdeducted and held in a reserveaccount to be drawn against byconflict counsel. Any deficiency inthe reserve account was paid bydeducting from the monthly pay-ment to the public defender. Anyamount left in the account at theend of the year was paid to thepublic defender. The CaliforniaSupreme Court held that this typeof contract created an “inherentand irreconcilable” financial disin-centive for the public defender todeclare a conflict.

Some funding authorities haveswitched to contracting systems inresponse to legal challenges toinadequate compensation to court-appointed counsel. In recent years,extensive litigation in state courtshas challenged the compensationrates for private court-appointed

counsel in criminal cases. In 1992,compensation rates as low as $10an hour for out-of-court work and$15 an hour for in-court work wereoverturned by the South CarolinaSupreme Court in Bailey v. State ofSouth Carolina.

Lawsuits challenging the lowrates paid to assigned counsel whorepresent indigent defendants ledto an expansion of low-cost con-tracts in at least two states. InMississippi and Oklahoma, suc-cessful challenges to the systemfor paying assigned counsel leddefense attorneys to believe theywould be better compensated fortheir work. Instead, contractsreplaced many case-by-caseassignment systems, nullifyingthe impact of the court decisions.

In 1990, the Mississippi SupremeCourt held in Wilson v. State thatthe section of the Mississippi Codethat set $1,000 as the maximumpayment for attorneys representingindigent defendants in circuit courtwas being administered unconstitu-tionally. Without declaring thestatute itself unconstitutional, thecourt offered a new constructionthat allowed an attorney $1,000in profit plus expenses and inter-preted hourly overhead as an actu-al expense. The court assigned$25 as a rebuttable hourly over-head rate. As a result, court-appointed counsel in Mississippiare reimbursed for the “actualexpense” of overhead for every

hour worked, but they still do notreceive additional compensationbeyond the $1,000 “profit.”

In the wake of Wilson, contractprograms mushroomed throughoutMississippi, where counties areresponsible for funding indigentdefense representation. Fearingunforeseen increases in their indi-gent defense expenses, manycounties replaced assigned counselprograms with “part-time” publicdefender programs that in realitywere fixed-price contracts. Themajority of counties in Mississippinow contract competitively withone or more attorneys to do all ofthe county’s indigent defense workfor a fixed annual amount.

The situation in Oklahoma issimilar. In 1990, the OklahomaSupreme Court found in State v.Lynch that the compensation thenin effect for court-appointed coun-sel at the trial level constituted anillegal taking of property of privatecourt-appointed attorneys underthe Oklahoma Constitution. Thestate legislature’s response wasa sweeping overhaul of indigentdefense in Oklahoma, including thecreation of a new statewide agencyfor providing indigent defense services, the Oklahoma IndigentDefense System (OIDS). The legis-lature gave OIDS and its board ofdirectors responsibility for providingrepresentation at trial to indigentdefendants in noncapital cases in75 of the state’s 77 counties. (The


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state’s two largest counties werepermitted to retain control of theirlocal public defender programs.)

Prior to Lynch, the state wasranked one of the worst in levelof funding for indigent defense.Immediately after Lynch, it seemedthat substantially improved trialrepresentation for indigent defen-dants could become a reality inOklahoma. But in May 1992,largely due to budget restraints,the OIDS board adopted a contractsystem as the primary method forproviding noncapital trial counselin the 75 counties. Each year,attorneys submit bids to the boardof directors, which, until 1995, wasdirected by statute to accept the“lowest and best bid or bids.” In1995, the word “lowest” wasremoved from the statute after law-suits were filed by disgruntled bid-ders whose bids were rejected eventhough they were the lowest ones.

Oklahoma’s contract system pre-sents an annual administrative night-mare for the board during thenegotiation process. For fiscal year2000, the average cost per case fornoncapital, trial contract cases is$183, with some counties having anaverage cost per case as low as $99.

Legislatures and ContractSystems

Despite these court decisions,state legislatures, to contain gov-ernment spending, increasinglyseek to require contracting andbidding as one component of pro-viding indigent defense services.One trend emerging from state leg-islative sessions has been torequire state public defender agen-cies to administer contract pro-grams that handle cases in whichthe public defender declares a con-flict of interest.

For example, in 1995, to reducespending, the Wisconsin legislaturerequired the State Public Defender(SPD) to use fixed-fee contracts tohandle conflict of interest casesrather than rely solely on privatecourt-appointed attorneys. SPDagreed to use contracts for up toone-third of its conflict case misde-meanors annually and establishedsix categories for determiningawards: (1) applicant’s qualifica-tions and experience, (2) appli-cant’s ethical track record andreputation, (3) proposed cost percase, (4) applicant’s ability to han-dle cases, (5) applicant’s financialstability, and (6) adequacy of theapplicant’s facilities.4

4 For a description of the SPD contract system, see Hardy, Kelly A., 1997, “Contracting forIndigent Defense: Providing Another Forum for Skeptics to Question Attorney’s Ethics,”Marquette Law Review 80: 1053.

The New York CityExperience

In 1965, the city of New Yorkestablished the New York LegalAid Society (LAS) as the primarydefender of indigent peoplebrought to court in New York City.By 1995, LAS’s Criminal DefenseDivision and Criminal AppealsBureau were handling nearly250,000 cases a year. That year, tosecure an “alternative to the pri-mary defender,” the city issued arequest for proposals (RFP) fromnonprofit and for-profit entities toprovide representation to indigentcriminal defendants in trial andappellate cases that otherwisewould have been assigned to LAS.The bidding process did not affectrepresentation by assigned counselin conflict of interest cases or rep-resentation in homicide cases.

The city’s RFP sought to shift 20percent of LAS’s adult criminaldefense work to new contractdefender organizations by biddingout more than 50,000 trial cases:10,000 cases in Brooklyn, theBronx, and Queens; 12,500 casesin Manhattan; all of the LAS’scases in Staten Island; and 400appeals citywide. LAS, excludedfrom bidding, continued to operateunder a fixed budget with no case-load limits. Each trial contractorwas expected to carry between10,000 and 12,500 nonconflict,nonhomicide cases per year undera 2-year contract.

The RFP set out standards forthe provision of services, carefullytracking the ABA Standards andNLADA Guidelines (see appendix).The RFP did not establish a low bidas the main selection factor, butinstead used a weighting schemethat took into account the followingfactors:

• Experience in handling criminalcases.

• Ability to adhere to caseloadstandards.

• Financial and managementcapability and qualifications.

• Range of services.

• Adequacy, appropriateness, andcost-effectiveness of providingstaffing, staff supervision andtraining, and library facilities.

• Understanding of what isrequired to provide indigentdefense.

• Capacity to deal with bilingualclients.

• Proximity of office location.

• Case management and trackingsystem.

In fall 1995, the AppellateDivision of the Supreme Court,First Department, at the request ofthe New York County Lawyers’Association, the Association of theBar of the City of New York, and

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the Bronx Bar Association, enact-ed, with the agreement of the city,rules by which the Indigent De-fense Organization OversightCommittee was established.5 TheOversight Committee was expect-ed to conduct an annual evaluationof LAS and of each indigent de-fense contractor. Although it hadno staff of its own, the committeewas considered by the city to be animportant component in the evalu-ation of organizations that bid toprovide indigent defense services.

In 1999, the Oversight Commit-tee issued its third evaluation of thesystem.6 The committee found thatin many important respects, thecontracting system had not dimin-ished the quality of representation.The committee found that thecity’s requirement that indigentdefense contractors hire only expe-rienced staff resulted in a highquality of services, as did the con-tractors’ ability to limit their owncaseloads. For instance, when TheBronx Defenders projected that itwould reach its maximum contractnumber of cases (10,000) for theyear too quickly, it reached an

agreement with the city to stopcovering one of the arraignmentshifts.

In the report for 1998, the com-mittee noted that in its report for1997 it found that “the unfortunateresult of creating [the contractorganizations] has been to furtheroverburden LAS and seriouslyundercut the efforts by LAS staff toprovide quality representation to itsclients.” Finding no change in thatsituation, the committee repeateda recommendation from its 1997report: “It is imperative that thecontractual arrangements with thecity provide LAS with the samekinds of limits on its caseload that[the contract organizations] enjoyor a formula for additional fundingat a level consistent with the otherdefense organizations if caseloadlevels are exceeded.”7

According to Robin Steinberg,Executive Director of The BronxDefenders, the real value of amixed system comes from havingsmall offices that are able to inno-vate and test new models of indi-gent defense. “Small defender


5 Members of the Oversight Committee are nominated by the presidents of the New York CountyLawyers’ Association, the Association of the Bar of the City of New York, the Bronx BarAssociation, and justices of the Appellate Division of the Supreme Court, First Department.Each member serves a 3-year term, renewable upon renomination by the justices of theAppellate Division. The chair and vice chair of the committee are designated by the presidingjustice from among the nominees.6 First Department Indigent Defense Organization Oversight Committee,1999, First DepartmentIndigent Defense Organization Oversight Committee Report for 1998, New York, NY.7 Ibid.

organizations,” she said, “candevelop methods and strategiesand the institutional culture to sup-port such innovations.”

Empirical Studies ofContracting Systems

Very few empirical studies haveexamined the quality of represen-tation and cost-effectiveness ofsystems that contract for indigentdefense services. The first suchstudy, an assessment of ClarkCounty, Washington, released in1982, found that costs rose whenthe county moved from a publicdefender office to a contract sys-tem. In part, the increase resultedfrom an unforeseen rise in thenumber of felony cases. The studyalso noted, however, a decline inthe quality of representation,including a decline in the numberof cases taken to jury trial, anincrease in guilty pleas at firstappearance hearings, a decline inthe filing of motions to suppress, adecline in requests for expert assis-tance, and an increase in com-plaints received by the court fromdefendants.8

A second study, conducted byHoulden and Balkin in 1985, com-pared the contract counsel system

used in one county with an orderedassigned counsel system used in asecond county with similar geo-graphics. The researchers did notidentify the counties studied. In thecontract system they examined,one firm had held the contract for8 years. A second firm that sub-mitted a bid to do the work for lessmoney was awarded the contract.There was no solicitation or bid-ding process for either contract;both were awarded after the lawfirms approached the county with aproposal. The study found that thecontract system cost less than theassigned counsel system for nontrial cases because the contractattorneys spent less time on eachcase and made fewer appearances.The researchers questioned thequality of representation providedunder the contracting system andconcluded that over time the costsfor contracting would exceedthe costs for assigned counsel systems.9

In 1993, Worden compared costsassociated with different indigentdefense systems in Michigan, butdid not compare quality. In de-scribing why her study could notfully address issues of quality,Worden noted: “Lawyers’

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8 Lefstein, Norman, 1982, Criminal Defense Services for the Poor: Methods and Programs forProviding Legal Representation and the Need for Adequate Financing, New York, NY: AmericanBar Association.9 Houlden, Pauline, and Steven Balkin, 1985, “Quality and Cost Comparisons of Private BarIndigent Defense Systems: Contract vs. Ordered Assigned Counsel,” Journal of Criminal Lawand Criminology 76: 176.


performance is not evaluated easi-ly, in part because standards foreffective counsel are vague and inpart because thorough and sys-tematic evaluation of performancein individual cases would conflictwith professional ethics regardingclient confidentiality.” Wordenfound that contracting with com-petitive bidding saved money,whereas contracting without com-petitive bidding significantly

increased costs. (On average,Worden found that competitive-bidcontracts cost $244 per case com-pared with $689 per case for no-bid contracts.) Worden alsocompared public defender costs toassigned counsel costs using thecombined average of no-bid andcompetitive-bid contracts andfound that contracts were slightlymore expensive.10


10 Worden, Alissa Pollitz, 1993, “Counsel for the Poor: An Evaluation of Contracting for IndigentCriminal Defense,” Justice Quarterly 10(4): 613.

III. Characteristics of Deficientand Effective Contract Systems

Scholars and practitioners whohave studied indigent defense con-tract systems agree that fairly spe-cific features differentiate effectivecontract systems that are constitu-tionally and ethically sound fromthose that fail to deliver acceptablestandards of representation.

Characteristics of DeficientContract Systems

The most seriously criticizedcontract systems:

• Place cost containment beforequality.

• Create incentives to plead casesout early rather than go to trial.

• Result in lawyers with fewerqualifications and less trainingdoing a greater percentage ofthe work.

• Offer limited training, supervi-sion, or continuing education tonew attorneys or managers.

• Reward low bids rather thanrealistic bids.

• Provide unrealistic caseload limits or no limits at all.

• Do not provide support staff orinvestigative or expert services.

• Result in case dumping thatshifts cost burdens back to theinstitutional defender.

• Do not provide for independentmonitoring or evaluation of per-formance outside of costs percase.

• Do not include a case-trackingor case management systemand do not incorporate a strate-gy for case weighting.

In Jones County, Mississippi, thecontract system was so poorlyconstructed that the contractorsthemselves filed suit, contendingthat they should be found to beineffective in all cases as a resultof the conditions under which thecontract required them to provideservices. In 1992, Jones Countyprovided $32,000 for indigent rep-resentation in criminal cases. Twoattorneys were hired at $13,000each, leaving the attorneys $6,000for expenses. When they agreed tothe contract, neither attorney wasaware of a backlog of 400 pendingfelony cases that the previous con-tractor had been paid to represent.

The two contractors brought suitto compel the county to limit theircaseload and increase funding.While the case was pending in the


appellate courts, the Jones CountyBoard of Supervisors reached anagreement with the contractors byincreasing the amount of the con-tract to $118,000.

North Dakota solved a similarproblem in a different way. Thestate provides indigent defense ser-vices through contracts in each ofNorth Dakota’s seven judicial dis-tricts. The contracts are for flatfees without caseload caps. Ratherthan award contracts to the lowestbidders, judges establish theamount of the contract and issuenotice that it is available. Attorneysmay then apply, and the presidingjudge selects from the applicants.

This practice calls attention tothe issue of independence inawarding contracts. Both the ABAStandards and NLADA Guidelinesrecommend that the professionalindependence of indigent defensesystems, including contractors, beprotected by creating an indepen-dent organization such as a boardof trustees or policy board toadminister and award contracts.

In the North Dakota system, if anattorney receives a particularly dif-ficult case toward the end of thecontract period, he or she isexpected to carry the case to com-pletion. In some cases, that hasmeant continuing to work withoutcompensation after the contractends. Recent changes to the sys-tem now allow attorneys toapproach the presiding judge to

negotiate either continued paymentor transfer of the case, but suchactions are discretionary.

Low-bid contracts often requireparticipating attorneys to accept anunlimited number of cases during acontract period with no mechanismfor relief. In Yuma County, Arizona,for instance, in fall 1995, a con-tract attorney who believed thather caseload exceeded her abilityto provide competent representa-tion to all her clients asked thesuperior court to withhold furtherappointments under her contractuntil she was able to decrease herworkload. She cited the presump-tive caseload caps created underArizona Supreme Court case law.The superior court rejected herclaim and continued to assigncases to her. The case was thenheard by the Arizona SupremeCourt, which sent it back to thesuperior court for fact-finding.Before a hearing could be held,however, the Yuma County Boardof Supervisors decided to establisha public defender office.

As with any forecast or projec-tion, there is uncertainty in predict-ing the number and type of casesthat will be filed in a jurisdiction inany given year. If the number ofcases filed is higher than projected,it may result in poor representationand jeopardize the constitutionalrights of indigent defendants.Further, the situation poses an eth-ical dilemma for the contractingattorney, who must determine


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whether it is possible to fully andethically advocate for each of hisor her clients.

Contractors may also find them-selves earning exceptionally lowfees as a result of fixed-fee con-tracts. Recently, a contractor work-ing in Montana accummulated anexcessive caseload of 100 feloniesand 250 misdemeanors. The tacitunderstanding when he agreed toaccept the contract was that hewould represent up to 60 felonycases and up to 100 misdemeanorcases per year. One felony caseended in a 5-week trial, leaving himlittle time to attend to the othercases during that period. By theend of the year, based on the con-tract amount, he was earningapproximately $18 an hour, with nocompensation for overhead.

With these experiences in mind,the Board of Supervisors in VenturaCounty, California, recently decid-ed to continue its contract withConflict Defense Associates(CDA), a group of attorneys thathas provided indigent defense ser-vices in the county for the past 18years for cases in which the prima-ry public defender office has aconflict. In 1999, in response to 4consecutive years of cost overruns,the board opened bidding on thecontract for the first time sinceCDA began contracting with the

county. A firm with contracts withfive other counties in California bid$1.1 million for the contract,roughly $700,000 less than CDA’sfinal bid. Based on the bid pricealone, a three-judge subcommitteerecommended the firm to the othersuperior court judges.

The full review of the bid, howev-er, also considered quality issues.In reviewing the provision of ser-vices in other counties, it waslearned that the out-of-county firmsaved money by using unlicensedinvestigators, limiting support staff,and using very inexperiencedattorneys. A judge in anothercounty had complained that thisfirm used inexperienced lawyerswho were often unavailable incourt, did not maintain full-timeoffices, and seemed more interest-ed in obtaining other contractsthan in providing services.

In the end, the Ventura CountySuperior Court judges and theVentura County Board of Super-visors determined that quality ofservices had to be consideredalong with cost. This meant evalu-ating more than the per-case costsof the proposed bids. Both thejudges and the supervisors deter-mined that experience and qualityof services supported continuingthe CDA contract, which they didin July 1999.11

Characteristics of Deficient and Effective Contract Systems


11 In 1992, Ventura County’s auditor-controller issued a report that found the county could saveup to $435,000 a year by establishing a second public defender’s office rather than continuingto contract for conflict services. That option was not considered during the most recent attemptto cut costs.

Characteristics of EffectiveContract Systems

Contract systems viewed by crit-ics as the most effective share fea-tures that allow administrators tomonitor and evaluate costs whileproviding quality representation.These features include:

• Minimum attorney qualifications.

• Provisions for support costssuch as paralegals, investiga-tors, and social workers.

• Independent oversight and monitoring.

• Workload caps.

• Limitations on the practice oflaw outside the contract.

• Provisions for completing casesif the contract is completed butbreached or not renewed.

• Caseload caps.

• Case management and trackingrequirements.

• Guidelines on client contact andnotification of appointment.

• A mechanism for oversight andevaluation.

One such model operatesstatewide in Oregon. It is adminis-tered by the Indigent DefenseServices Division of the StateCourt Administrator’s Office(SCA).

In Oregon, 92 percent of thetrial-level state court indigentdefense caseload is covered bycontracts awarded by SCA inresponse to an RFP. In 1999, therewere 85 contracts for services(including 5 contracts with non-attorneys) in 34 of Oregon’s 36counties. Four basic types of con-tracts were used: contracts withnonprofit public defender organiza-tions with salaried staff; contractswith law firm consortia in whichgroups of attorneys or law firmsjoined together to provide defenseservices; partnerships in whichindividual law firms agreed to havetheir attorneys provide indigentdefense services while continuingto serve private clients; and con-tracts with individual attorneys.

Ann Christian, ExecutiveDirector of the Indigent DefenseServices Division (IDSD), believesthat a strength of Oregon’s systemis that it operates statewide.“Because we have been able tocreate a statewide system thatfixes costs within predictableranges,” she said, “other membersof the criminal justice system, suchas the judges, are able to focusmore attention on issues of qualityof indigent defense representation.The stability and longevity of oursystem allows us to accuratelyassess expected caseloads andcosts.”

Oregon has developed a detailedRFP to solicit bids from potentialcontractors. The RFP is based on amodel contract that establishes


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expectations for caseloads, costs,areas of coverage (including geo-graphic limits and types of cases),level of services, staffing plans,and the applicants’ experience andqualifications. The review processincludes consultation with localcourts and judicial staff and anassessment that the proposal isconsistent with the needs of thecounty, region, and state.

Oregon has also established aprocess by which extraordinaryexpenses related to cases are paidthrough a mechanism outside thestandard contract. In most deathpenalty and serious mandatoryminimum sentence cases, funds forexperts, investigators, and otherexpenses not specified in the con-tract are submitted to IDSD forreview. In less serious cases, suchfunding requests are reviewed judi-cially. In Oregon, unlike most othersystems, these expenses do notcome from the money set aside forthe contractor’s basic operations.

In New Mexico, the standardcontract specifies that each con-tract attorney will independentlyinvestigate each case, seek theassistance of a social worker forconsidering a sentencing alterna-tive, and seek the assistance of anexpert witness when such assis-tance is likely to have a significantimpact on the outcome of thecase.

Typically, good contract systemscost more per case than do publicdefender or assigned counsel

programs. In part, this results fromthe costs of administering the con-tracts, from the costs of oversee-ing and evaluating multipleproviders, and from the costs ofadditional work necessitated whencontractors lack the institutionalknowledge that accumulates with-in a staff-based organization.A study of San Diego County,California, for example, found thata contract system would cost$8 million more per year thana staff-based defender agency.

The initial savings a jurisdictioncan achieve by switching from anassigned counsel system to a con-tract system can vanish in subse-quent years if, as experience hasshown, experienced attorneys dropout of the bidding process as thecontracts prove to be more timeconsuming than anticipated. Manycontracts do not even cover aver-age hourly overhead. Jurisdictionsare then faced with a dilemma: Dothey accept the attrition of experi-enced attorneys and contract withinexperienced attorneys, riskingjail, court delays, and ineffective-ness claims, or do they increasethe contract payments to maintainsystem efficiency and stability?Jurisdictions with particularlystrong bar associations often findthat they must keep increasingcontract rates to continue attract-ing competent attorneys.

King County, Washington, uses acontracting system to provide indi-gent defense services. Like theexamples discussed above, the


Characteristics of Deficient and Effective Contract Systems

contract establishes standards forthe quality of representation andcaseload limits. A central adminis-trative agency, the Office of PublicDefender (OPD), currently con-tracts with four nonprofit defenderorganizations to provide primaryrepresentation. Each contractorcarries a mixed caseload of felonycases, juvenile cases, and othertypes of cases. When these organi-zations are unavailable becauseof conflicts, the county turns toassigned private counsel.

According to Bob Boruchowitz,Director of the Defenders Associa-tion, the largest and oldest of the

four contractors, Seattle defendersworked for years to persuade localgovernment that there should bemaximum caseloads for defenseattorneys. With the help of a barassociation task force called torespond to a report alleging“supermarket justice” in the muni-cipal courts, the defense communi-ty in King County developedcaseload standards that led to thecity and the county agreeing thatthere should be reasonable case-load limits. “Caseload limits,”Boruchowitz said, “have been thekey to protecting our ability to pro-vide effective representation andobtaining the resources we need.”


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IV. Conclusion: Lessons Learned

The experiences of indigentdefense systems discussed in thisspecial report support the conclu-sion that contract systems candeliver quality indigent defenseservices when appropriate safe-guards are developed and im-plemented. However, contract systems that do not jeopardize thequality of representation providedto indigent clients often do not pro-duce the cost savings sought bycounty, regional, and state funders.

In a jurisdiction with a primarydefender supported by contractorsdoing conflict, overload, or a per-centage of the primary work, thepolitics of establishing contractingoffices is very important. One les-son jurisdictions have learned isthat the primary defender as wellas the contractors must be in-volved in a collaborative process.When parties are pitted againsteach other, either in low-bid set-tings or for political reasons, thequality of representation a systemcan maintain is harmed. Collabora-tion is needed to establish andmaintain training and oversight, toapproach funders, to consider

systemic changes, to facilitateinnovation, to manage caseloadsand track cases, and to develop institutional knowledge acrossagencies.

Lesson 1: Certain Types ofContract Models CarryMore Risk Than Others

As the examples in this reportillustrate, certain types of contractmodels, often established in thehopes of saving money, pose sig-nificant threats to the quality ofrepresentation. Two systems inparticular—those that solicit bidssolely on the basis of cost andfixed-fee systems, without caseloadcaps but with financial disincen-tives to investigate and litigatecases—are potentially devastatingto the quality of representation.

NLADA has developed a modelcontract that incorporates theNLADA and ABA guidelines forcontracting. Created to be a tem-plate for jurisdictions using or con-sidering contracting, NLADA’smodel balances the interests ofquality and cost.12


12 The model contract is available from NLADA, 1625 K Street NW., Suite 800, Washington, DC20006–1604; Phone: 202–872–1031; World Wide Web: www.nlada.org.

Lesson 2: Requests forProposals Should EstablishGuidelines, Qualifications,and Standards

As shown in the New York andOregon models, one way to bolsterthe quality of representation in acontract system is to create arequest for proposals that estab-lishes a fair application and awardprocess and weighs a variety offactors that measure quality aswell as cost. RFPs should establishguidelines, qualifications, and stan-dards for each aspect of the repre-sentation of indigents and amechanism for the evaluationof contractors.

Lesson 3: National,Enforceable StandardsAre Needed

The ABA Standards and NLADAGuidelines are helpful guides forensuring quality representationunder contract systems. However,more is needed at the level ofenforcement and discipline. Onepossible solution is the creation ofnational standards enforced by anational oversight committee thatwould monitor and evaluate theperformance of indigent defensesystems throughout the UnitedStates.

A second solution is the adop-tion by states of caseload caps,such as Arizona’s statewide case-load standard. These caps couldbe enforced by state court rules

that create enforceable guidelinesand standards that track thoseestablished by ABA and NLADA.

Lesson 4: Monitoring andEvaluation Are Important

The area of contracting systemsthat has been least successfullyimplemented is monitoring andevaluation. Although many of thesystems that use contractingrequire some form of evaluation,few systems have managed toimplement a coherent and indepen-dent review process that examinescompliance with standards as wellas individual attorney performance.

For instance, although NewMexico has established high stan-dards and expectations for the per-formance of its contract attorneys,the state’s Public DefenderDepartment has no mechanismwith which to assess compliancewith the standards, especially inthe state’s rural counties. NewMexico is not alone in this lack ofmonitoring. In fact, few jurisdic-tions have incorporated monitoringand evaluation into their contractsystems.

New York City’s OversightCommittee is the nation’s bestexample of such an evaluation sys-tem. It currently operates on a vol-unteer basis without full-time staff.In a 1998 memorandum, the com-mittee noted that it needs staff andinstitutional stability to conduct“continuous and consistent


20


13 First Department Indigent Defense Organization Oversight Committee, Proposal for Staffingof the First Department Indigent Defense Organization Oversight Committee, 1999, FirstDepartment Indigent Defense Organization Oversight Committee Report for 1998, New York, NY.

Conclusion: Lessons Learned

monitoring of the performance ofthe organizations and the lawyers . . . assigned to represent indigent parties in criminal proceedings.A permanent monitoring structure

would have the advantages ofgreater accuracy, continuous moni-toring, uniformity and stability.”13

Every jurisdiction would benefitfrom such oversight and monitoring.

V. Appendix: National Standards

Both the American Bar Associa-tion and the National Legal Aid &Defenders Association have pro-mulgated standards for contractsystems. Anyone consideringestablishing or interested in evalu-ating a contract system shouldreview these materials.14 ABA’sStandards for Criminal Justice:Providing Defense Services,Standard 5–1.2(b), states “Every[indigent defense] system shouldinclude the active and substantialparticipation of the private bar.That participation should bethrough a coordinated assigned-counsel system and may alsoinclude contracts for services.”

In February 1985, the ABAHouse of Delegates adopted thefollowing language concerningcontracting: “The American BarAssociation opposes the awardingof public defense contracts on thebasis of cost alone, or throughcompetitive bidding without refer-ence to quality of representation.Be it further resolved that in orderto achieve constitutionally effectiverepresentation, the awarding ofpublic defense contracts shouldadditionally be based on qualitativecriteria such as attorney caseload

maximums, staffing ratios, criminallaw practice expertise, and train-ing, supervision and compensationguidelines.”

Additionally, in 1998, the ABAHouse of Delegates adopted a res-olution calling upon each state, ter-ritory, and local jurisdiction toadopt minimum standards for thecreation and operation of its indi-gent defense delivery system,including contract systems.

The ABA Standards and theNLADA Guidelines contain the following common standards forcontracting:

• Contracts should ensure qualityof representation (ABAStandard 5–3.1; NLADAGuideline III–8). One recom-mended way of ensuring qualityof representation is to refuse toaward a contract primarily onthe basis of cost (ABA Standard5–3.1; NLADA Guideline IV–3).

• The professional independenceof all indigent defense deliverysystems, including contractorsystems, should be maintainedby creating an independentorganization such as a board


14 See the American Bar Association,1990, Standards for Criminal Justice: Providing DefenseServices, Chapter 5, Washington, DC; and the National Legal Aid & Defender Association, 1984,Guidelines for Negotiating and Awarding Indigent Defense Contracts, Washington, DC.

of trustees or policy board toadminister and award contracts(ABA Standard 5–3.2(b);NLADA Guideline III–1).

• Contracts should not containprovisions that create conflictsof interest between the contrac-tor and clients (ABA Standard5–3.2(c); NLADA GuidelineIII–13). Among the potentialconflicts addressed are forcingcontractors to choose eitherpaying for investigation, expert,transcription, and other servicesor forgoing these services bynot including them in the con-tract; failing to ensure that thecontract’s mechanism foraddressing conflict cases doesnot act as a financial disincen-tive for withdrawing; and induc-ing an attorney to waive aclient’s rights for reasons notrelated to the client’s best inter-ests (ABA Standard 5–3.3(b)(vii)(x); NLADA GuidelineIII–13).

• To avoid situations in whichlawyers or law firms are award-ed contracts and delegateresponsibility to inexperiencedassociates, contracts shouldinclude identification of attor-neys who will perform legal

representation under the contract and prohibition of sub-stitution of counsel without priorapproval (ABA Standard5–5.3(iv)).

• Contracts should include allow-able workloads for individualattorneys and measures toaddress excessive workload(ABA Standard 5–3.3(b)(v);NLADA Guidelines III–6 andIII–12).

• Contracts should include provi-sions for supervision, evalua-tion, training, and professionaldevelopment (ABA Standard5–3.3(b)(xi); NLADA GuidelinesIII–6 and III–7).

• Contracts should include thegrounds for termination of acontract (ABA Standard 5–3.3(b)(xv); NLADA Guidelines III–4and III–5). Oregon’s contract, forexample, allows termination ifthe contractor misuses funds,habitually disregards court pro-cedures for providing services,demonstrates an inability to ade-quately serve the interests of theclients, or willfully or habituallyfails to abide by minimum stan-dards of professional ethics orperformance.

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To receive more informationabout indigent defense contractsystems, contact the followingorganization:

The Spangenberg Group1001 Watertown StreetWest Newton, MA 02465Phone: 617–969–3820Fax: 617–965–3966E-mail: [email protected]

Bureau of Justice AssistanceClearinghouse

P.O. Box 6000Rockville, MD 20849–60001–800–688–4252World Wide Web: www.ncjrs.org

Clearinghouse staff are availableMonday through Friday, 8:30 a.m.to 7 p.m. eastern time. Ask to beplaced on the BJA mailing list.

U.S. Department of JusticeResponse Center

1–800–421–6770 or 202–307–1480

Response Center staff are avail-able Monday through Friday, 9a.m. to 5 p.m. eastern time.

To learn more about the nationalstandards for indigent defense con-tracts discussed in this report, con-tact the following organizations:

American Bar AssociationCriminal Justice Section

1800 M Street NW.Washington, DC 20036Phone: 202–331–2260World Wide Web: www.abanet.org

National Legal Aid & DefenderAssociation

1625 K Street NW., Suite 800Washington, DC 20006–1604Phone: 202–452–0620World Wide Web: www.nlada.org

VI. For More Information

Bureau of Justice AssistanceInformation

General Information

❒ MailP.O. Box 6000 Rockville, MD 20849–6000

❒ Visit2277 Research Boulevard Rockville, MD 20850

❒ Telephone 1–800–688–4252 Monday through Friday 8:30 a.m. to 7 p.m. eastern time

❒ Fax301–519–5212

❒ Fax on Demand1–800–688–4252

Callers may contact the U.S. Department of Justice Response Center for general information or specif-ic needs, such as assistance in submitting grant applications and information on training. To contactthe Response Center, call 1–800–421–6770 or write to 1100 Vermont Avenue NW., Washington, DC20005.

Indepth Information

For more indepth information about BJA, its programs, and its funding opportunities, requesters cancall the BJA Clearinghouse. The BJA Clearinghouse, a component of the National Criminal JusticeReference Service (NCJRS), shares BJA program information with state and local agencies and com-munity groups across the country. Information specialists are available to provide reference and refer-ral services, publication distribution, participation and support for conferences, and other networkingand outreach activities. The Clearinghouse can be reached by

❒ BJA Home Pagewww.ojp.usdoj.gov/BJA

❒ NCJRS World Wide Web www.ncjrs.org

❒ [email protected]

❒ JUSTINFO NewsletterE-mail to [email protected] the subject line blankIn the body of the message,type: subscribe justinfo[your name]

Documents

CONTRACTING FOR INDIGENT DEFENSE SERVICES · worst features of contract ... *Throughout this special report, the term contractrefers to legal ... of contracts do not adequately guarantee