Requiring effective indigent defense

All defendants are entitled to competent attorney representation. Low-income criminal defendants and those living in poverty should not be provided with overburdened attorneys, who are unable to provide them with competent representation.

Yet, in many courthouses throughout the country, indigent defendants are either not receiving representation at all or being represented by attorneys who must juggle a caseload of several hundred defendants and are thus unable to provide the level of representation that our Constitution requires. National and local bodies of government should adopt comprehensive strategies to address the indigent defense crisis in this country, both by ensuring adequate representation for all defendants and making the system easier to navigate

The Administration should prioritize judicial appointments and focus on appointing judges who represent diverse sectors within the legal industry, particularly those with public defense and public interest backgrounds.

Congress, and local and state legislatures should pass legislation that does the following:

• Require a universal cap on criminal defense counsel caseloads;
• Provide additional resources to increase indigent representation for misdemeanor offenses to ensure compliance with constitutional obligations;
• Increase payments to attorneys on the indigent defense panel by increasing the attorney compensation rate, especially rate for time outside the courtroom, with regular increases tied to increase in payments to prosecutors, to create incentives for attorneys to allocate adequate time and preparation for these cases.

Legal aid societies, defender organizations, and the private defense bar defense should encourage defense attorneys to follow best practices and provide guidelines that are responsive to the conditions of local defenders. The Center for Court Innovation published a rubric of best practices for indigent representation, which include:

1. Collecting the client’s information,
2. Nurturing the relationship with the client,
3. Protecting the client while the case is pending,
4. Evaluating the government’s case,
5. Conducting an independent investigation of the government’s case,
6. Challenging the government’s case,
7. Developing a theory of the case and post-disposition plan,
8. Preparing to persuade the finder of fact to support the theory of the case,
9. Affirming a continued duty to the client,
10. Protecting post-representation client information.

Local bar associations and law schools should form partnerships with each other, courts, and defender attorney organizations to expand indigent defense programs.