NAPD Releases New National Standard for Public Defense Staffing

We know good lawyering makes a difference. It’s why we do this important work for our clients. But lawyers can’t do what is needed for clients without robust assistance from a team of professionals supporting the representation. Increasingly, client representation is provided by a team. In recognition of the importance of professional assistance from a range of professionals, the National Association for Public Defense has issued a national standard, NAPD Policy Statement on Public Defense Staffing (May 2020).

“Meaningful representation requires proper staff assistance,” said Derwyn Bunton, Chief Defender in New Orleans and the Chair of the NAPD Steering Committee. “Public defense clients are constitutionally entitled to an adequate opportunity to present their claims fairly within the adversary system. To receive this representation, clients must be provided attorneys who have the basic tools of an adequate defense. Necessarily, this includes adequate staff to support the work of the lawyer. The type and number of staff assistance to the lawyer greatly affects the amount of work the attorney can do competently. We call on all those who fund public defense to provide the resources for adequate professional support staff.

The NAPD Standard requires, at a minimum, that there should be one investigator for every three lawyers, one mental health professional for every three lawyers, and one supervisor for every 10 lawyers. Additionally, there should be one paralegal and one administrative assistant for every 4 lawyers.  Public defense organizations must have adequate staff or have access to adequate staff who perform necessary financial, IT, and human resource services.

This Standard was developed by the NAPD Systems Builders Committee Chaired by Doug Wilson who is the Chief Defender in Aurora Colorado and formerly the Colorado Chief Defender. Doug said that he was proud of the work of the Committee calling for proper support staff assistance, “Clients are constitutionally and ethically entitled to competent representation. A team of professionals is necessary for the competent defense of a client. Investigative, mental health, paralegal and administrative assistance are essential to the proper representation of clients.”

In addition to the benefit for clients, there is a tangible benefit to the public. Adequate support staff promotes timely resolution of cases which reduces costs for jails and reduces frustrations by clients, client families, victims, prosecutors, judges. When lawyers have assistants who can answer phone calls, schedule meetings and locate and arrange court appearances for witnesses, obtain documents, take photographs, and prepare and file pleadings, the lawyers are less likely to need continuances.

In order to have meaningful defense representation, the defense must put the prosecution’s case through the “crucible of meaningful adversarial testing.” United States v. Cronic, 466 U.S. 648, 656-57 (1984). To provide this meaningful defense, the responsibilities of an attorney representing a client facing the loss of liberty are substantial. The attorney must:
§  meet with and interview the client promptly
§  seek to have the judicial appointment decision made at first appearance prior to the consideration of pretrial release
§  seek appropriate pretrial release
§  investigate the case
§  obtain expert analysis as necessary
§  obtain and review discovery
§  create the theory of the case
§  conduct appropriate legal research
§  file and argue motions with evidentiary hearings as appropriate
§  communicate and negotiate with prosecutor
§  respond to prosecutor motions
§  prepare for trial
§  present an alternative sentencing plan in appropriate cases
§  keep the client informed throughout.

“Proper staffing is necessary to enable a public defense lawyer to comply with all of these responsibilities to meet legal and ethical standards of practice,” said Ernie Lewis, NAPD Executive Director and former Kentucky Chief Defender.  “Public Defender attorneys cannot provide meaningful representation to the clients they are appointed to without proper staff assistance.”

There are serious financial and social consequences to inadequate staffing. Clients pay the costs of representation that is not meaningful. The criminal legal system pays the costs of delayed resolutions. The public has less reason to have confidence that the process is properly adversarial and produces results that are reliable and valid.

Now is the time to provide proper support staff assistance.