The Constitutionalization of Ineffective Assistance of Counsel

Remarks of Weldon Brewer at Annual Conference of American Association of Law Schools, San Francisco, January 6, 2001

We have heard painful accounts today of the continuing national failure to comply with Gideon’s mandate, a failure all the more distressing given that 37 years have now passed since the decision was rendered.

This state of affairs calls for a re-examination of some of our thinking about the challenge of implementing Gideon. There are two aspects to this challenge: first, how to structure service delivery without compromising Sixth Amendment standards; and, second, how to maintain sufficient funding for such uncompromised service delivery.

Accordingly, my thesis today is two-fold, concerning both of these aspects of the Gideon challenge---quality service and adequate funding. I argue first that community defender offices of the type modeled by the Neighborhood Defender Service of Harlem offer alternative approaches to service delivery that avoid compromises in quality now readily accepted by traditionally structured offices. I argue secondly that by avoiding the compromises in quality inherent in the traditional model, the community defender office wins the support of the community served, which then becomes a powerful ally in the political-budgetary process. In contrast, current traditional defense offices generally do not win the wholehearted support of the communities they serve, because the citizens of those communities persist in having serious misgivings concerning the role of traditional defenders. Such misgivings sap support in the very population that otherwise would be most inclined to vigorously support indigent defense.

The community defender model changes the method of service delivery in four fundamental ways.

The first fundamental change: locating the defender office in the community, not, as conventionally, near the courthouse. Community location improves the clients’ and clients’ families’ access to attorneys, social workers, investigators, and other staff; provides ready access to local precincts to assist and counsel clients shortly after arrests; expedites investigations of local crime scenes and the interviews of local witnesses; facilitates the establishment of durable networks with other local service providers; increases the defender office’s staff’s empathy with their clients; counters impressions by clients that the defender is an adjunct of the court; accelerates the forming of local reputation; and fosters identification of the office with local values and concerns. Location in the community is not some romantic communitarian notion, but the sine qua non for providing quality representation, establishing necessary trust, and projecting the right political symbolism.

The presence of the office in the community, conjoined with a philosophy focused on serving the community, has proven at N.D.S. to be a major attraction for minority job applicants for employment at all levels. The result is a staff largely sharing the racial or ethnic background of the community served, which increases the community’s trust of the office. [Fortunately, there is a commitment to diversity or I might not enjoy my job there.]

The second fundamental change: the community defender office permits the client or his family to retain directly, independently, voluntarily the defender office, and to do so even before arraignment, even sometimes before arrest, not, as is done conventionally, awaiting the act of assignment by a judge. The client or his family are permitted to retain the community office by phone or walking in, without waiting for court assignment. This is a fundamental reform, because, contrary to our tendency unreflectively to assume otherwise, the indigent criminal defendant is very often not all that thrilled with, or grateful for, his assigned attorney, even though he is very much aware, of course, how much he needs an attorney truly committed to his interests. An extraordinary high percentage of clients perceive the traditional defender, based near the courthouse and imposed upon them by a judge, as a functionary of the court, a paid retainer of the system, and as such an untrustworthy advocate with divided loyalties---in effect, a “double agent.” This enduring perception of the public defender, created in the first instance by judicial assignment, is reinforced by differences of race between client and attorney, by the high level of plea bargaining inherent in the system, and by the pressured, perfunctory, high-caseload-induced manner of many encounters with public defenders. This is not just a perception problem: sometimes the public defender really does have allegiances that illegitimately compromise representation.

The client, his family, and his community are not naïve about this. They rightly perceive the assignment of an attorney paid by the state and chosen by the judge as a pre-eminently political act, not merely a ministerial act. To the client, the assignment of counsel is not a beneficent intervention of civic virtue, a discrepant moment of good fortune in an otherwise dismal situation; instead, within the continuity of the criminal justice system, the assignment is only another political occurrence to eye warily. His newly assigned counsel is of a piece with the police, the prosecutor, the judge, and the court officers, assigned, just as they are assigned, to play a scripted role in the inexorable processing of the client’s case toward a foreordained adverse conclusion.

An adequate defense requires at least a modicum of trust between attorney and client. Part of the dysfunctionality, even cruelty, of the traditional court assignment system is that it undermines trust from the outset. The client and his family are alienated from the assigned attorney and often remain permanently so. Blaming the client for this distrust is misplaced and certainly does nothing to solve the problem. Analogously, if a patient so mistrusted his doctor that he refused to take the medication prescribed, we would not say the patient’s medical needs were being met.

The pervasive mistrust of the assigned defense attorney cannot be ignored in any re-energized attempt to realize Gideon’s mandate. Perhaps client mistrust of assigned counsel has received little attention because policymakers have had backgrounds and experiences too remote from the concerns, perceptions, and political reality of clients and their families. The pernicious result of this mistrust is that the client, his family and community have at best a crippling ambivalence in their support for increased funding for the traditional office.

The third fundamental change: the community defender office enters the case as early as possible, to provide representation even at the stationhouse, to provide better prepared bail advocacy at arraignment, more timely, effective investigations, and a more intelligent grand jury practice. The significant defense advantages of early case entry are not forgone or compromised, as they are under the conventional model, by the state’s failing to select an attorney and thereby delaying the timetable of her representation, until the artificially determined moment of assignment of counsel. Early case entry takes into account the psychological trauma suffered by the client and by his family during the period immediately after arrest. The traditional defense model ignores the client’s plight during this crucial period---indeed, under the conventional model, the client still has not yet even been assigned an attorney. The community defender office, however, is there for its client and his family at this psychologically vulnerable moment. Early case entry is extremely appreciated by the client, builds bonds of trust, and represents a caring and commitment by the office that ripple through the community and are not forgotten.

The fourth fundamental change: the community defender office provides holistic, comprehensive representation to each client, which means understanding the scope of representation to encompass an assessment of, and some intervention in, the salient life circumstances which led the client to be enmeshed in the criminal justice system. The community defense model more broadly defines its mission to include social service support from its own staff or referral to other agencies for a wide range of needs, and also to include civil representation for issues arising from or related to the criminal matter. Holistic representation invests resources in civil attorneys and social workers. The client is represented on civil matters arising from the criminal case: for example, family court proceedings to terminate parental rights, eviction proceedings against the client or his family because of the alleged criminal conduct, school suspension hearings, forfeiture proceedings, and civil suits for police misconduct. Social workers are an integral part of the community defender office. The social services staff, for example, prepare pre-pleading and pre-sentencing reports, help place clients in drug treatment and job development programs, obtain Medicaid coverage, obtain housing, public assistance, anger management counseling, marital counseling, and parental counseling.

This comprehensive approach addresses the client and appreciates the client as a whole person in the context of family and community, and avoids the court-centric, lawyer-centric, client-peripheral methods of the traditional model. The traditional model artificially circumscribes the defense provider’s range of responsibility, marginalizes the client’s family and social world, and ultimately alienates the client by ignoring some of his most obvious wounds.

By making the four structural changes away from the traditional model, I’ve just outlined, the community defender office wins the political support of the community it serves. To achieve its representational ends and its political ends, the community defender office develops an institutional culture that tries to find ways to say “yes” when asked for help with issues related to the criminal justice system. This is in contradistinction to the traditional defender office, which usually refuses to assist with client problems other than defense of the criminal case, as narrowly, rigidly defined. The community defender office, however, seeks the same institutional orientation as a politician’s field office trying to respond to a constituent’s request, or a private law firm trying to satisfy a long-term client. Instead of limiting itself to the narrow confines of traditional representation, the office offers distinctly non-traditional services. The office defines criminal justice issues as those that organically arise in the day-to-day life of its constituents, not those that are mechanistically defined by the court’s time of assignment of counsel or the court’s limitations on the scope of representation.

In the central cities, conditions are most favorable for the community defender model to flourish. The citizens of these communities have found the traditional model, in its various configurations, fails to meet the deeply felt need for uncompromised representation. In the central city, sympathy for the victim and antipathy for the accused are not the prime factors governing attitudes that they are in a white suburb, for example, where arrests are uncommon. Instead, attitudes in the central city are shaped by how very common arrests are. The political reality here is that an arrest adversely affects many members of the community, in addition to the person arrested. In these neighborhoods, almost all the males and a significant number of females are fated to be arrested at one time or another. Arrests, imprisonment, loss of a breadwinner because of imprisonment, criminal records, probation, and parole touch so many lives that they constitute a shared culture of grievance against the criminal justice system. There is fluidity and overlap between victim and accused---over time, in different circumstances, each is very likely to become the other. There are not nearly the “six degrees of separation” postulated by the playwright; there are not many degrees of separation at all between an arrested person and the rest of the community’s population. The network of neighbors and extended families makes almost everyone aware of the injustices and indignities suffered by an accused. Being stopped, questioned, detained, searched, harassed, eyed suspiciously, told to move on, are the shared experience of a community---a uniting experience.

Once lawyers are offered that the community can trust, pent-up resentment at the criminal justice system may then be politically channeled into support for a concrete entity, the local defender office, as the community’s retained house counsel in criminal justice matters. Local legislators and councilpersons can no longer make obligatory, abstract statements in support of funding the remote criminal defense entities near the courthouse, but now must be accountable for the fate of a particular local defender office, spurred by the community’s sense of ownership of that office.

There is an interesting ambiguity in the name, Neighborhood Defender Service. It connotes not just the defense of individuals, but the defense of a neighborhood. One is tantamount to the other. In much of this country, a criminal defense attorney is of low status, but in the central city, when perceived as an authentic spokesperson for a community besieged by the police and beleaguered by the courts, the criminal defense attorney is quite highly regarded.

To fully mobilize a community with a shared culture of grievance against the criminal justice system, the community defender model requires a fifth structural change, not of the same type as the four previously mentioned for improving service delivery to the individual client. The fifth change is the implementation of a permanent, ongoing community outreach program. The purpose of community outreach is to increase the visibility of the office in the community. This is essential because intake of cases depends upon contacts from clients and their families, not judicial assignment. Community outreach is a public relations branch integral to the mission of the office, to project and explain the office’s goals and values, to show the office’s concern with community issues, and generally to involve the office in the life of the community.

For example, at NDS, various outreach programs take the office into the neighborhood. The most successful program, called “Conflict with Cops,” goes into local high schools and in ten sessions, using lectures, videos, and role-playing skits, educates young people about how to manage conflicts and diffuse encounters with police. There are other outreach programs at NDS. The purpose of each is to project the office’s understanding of the community’s criminal justice concerns and the office’s availability for addressing those concerns.

The community defender model costs more per case than the traditional model, but each case has packed into it more services. The community model defines the scope of its responsibilities to its clients more broadly than the traditional model does. However, it is still an open question whether community defense, although clearly more costly per case, is actually a greater net cost to taxpayers, because the greater cost-per-case may be recouped by savings achieved elsewhere by the community defender model. In 1997, the National Institute of Justice, a research arm of the Department of Justice, cited a study showing NDS clients were sentenced to incarceration periods about one-third shorter than their matched statistical counterparts who received traditional representation. The report concluded that the savings in prison time alone made the agency competitive with a traditional defender.

There is some recent historical evidence that the structuring of the delivery of defender services, as advocated here, actually does translate into the additional political clout postulated. When the mayor of New York City sought repeatedly in the last four years to close the Neighborhood Defender Service of Harlem, purportedly as a cost-saving measure, the elected officials of the community mobilized support on the City Council to persistently override his vetoes by lopsided margins. This was an unprecedented outpouring of community support for an indigent defender office.

Therefore, in summary: If a community defender office does its defense work apart from the courthouse culture, permits client autonomy in selecting counsel, and engages in constituent service through the minutiae of good deeds---one precinct visit at a time, so to speak---then at the same time it is doing the essential political work which will permit it to survive and thrive, and eventually, with the help of the community it serves, give Gideon full life.

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