The Sixth Amendment to the United States Constitution provides: “In all criminal prosecutions,the accused shall enjoy the right…to have the Assistance of Counsel for his defence.” In the seminal case of the Gideon v. Wainwright, the United States Supreme Court interpreted this right to counsel to require that the state provide counsel for anyone accused of a crime for which he or she might face incarceration. The right to counsel is a cornerstone of the American criminal justice system, ensuring that all those accused of crimes receive equal justice regardless of the ability to pay.
The measures in this section address each jurisdiction’s ability to screen defendants for eligibility for appointed counsel (Eligibility Screening), promptly appoint counsel (Attorney Appointment) and conduct appropriate hearings regarding probable cause and conditions of pretrial release (Magistration). The measures further address how often defendants are pleading guilty without counsel (Uncounseled Pleas). In each of these areas, the American Bar Association (ABA) has promulgated performance standards. The ABA Standards governing each section of measures are provided as a reference for the public, policymakers and researchers.
Eligibility Screening is the process by which it is determined whether an accused is entitled to have a defense lawyer furnished a public expensive, i.e. a public defender or court-appointed attorney. The ABA 10 Principles require that all clients are screened for eligibility (Principle 3). Accurate client screening ensures that defense services are only provided to those who require it. Under ABA Criminal Justice Standards, “[c]ounsel should be provided to persons who are financially unable to obtain adequate representation without substantial hardship. Counsel should not be denied because of a person's ability to pay part of the cost of representation, because friends or relatives have resources to retain counsel or because bond has been or can be posted.” Standard 5-7.1, ABA Criminal Justice Standards on Providing Defense Services.
Magistration is an initial appearance hearing at which the judge must determine whether there is probable cause to charge the defendant with the crime alleged and set conditions of release, including bail as warranted. The measures under this section examine the promptness of the hearing and access to bond. Under ABA standards, this initial appearance must occur promptly. Standard 10-4.1 of the ABA Criminal Justice Standards on Pretrial Release state:
The ABA 10 Principles of a Public Defense Delivery System require that defense counsel be assigned and notified of appointment as soon as feasible (Principle 3). Early appointment of counsel prevents inefficiency and delay, allowing counsel to advocate for bail/release as appropriate and to begin investigation promptly. “Counsel should be furnished upon arrest, detention, or request and usually within 24 hours thereafter.” Commentary to Principle 3.
Under ABA Standards “[a] defendant should not be called upon to plead guilty until an opportunity to retrain counsel has been afforded or, if eligible for appointment of counsel, until counsel has been afforded or waived.” ABA Standards for Criminal Justice: Pleas of Guilty 14-1.3 (3rd ed. 1999). Further, even if a defendant has properly waived counsel, a court should not accept a plea of guilty (or nolo contendere) until the defendant has been properly advised in open court of the consequences of the plea, given reasonable time for deliberation, and then reaffirms the plea. Standard 14-1.3; 14-1.4.
Competence is the core duty of any attorney. “Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” ABA Model Rule of Professional Conduct 1.1. Measures in this section look at key aspects of competence including Client Contact, Continuity of Counsel, Counsel Type, Training/Supervision, Workload, and Case Outcome.
“The objective in providing counsel should be to assure that quality legal representation is afforded to all persons eligible for counsel.” Standard 5-1.1, ABA Criminal Justice Standards on Providing Defense Services.
Defense counsel has an ongoing “duty to communicate and keep the client informed and advised of significant developments and potential options and outcomes.” Standard 4-1.3(d), ABA Criminal Justice Standards on Defense Function.
To allow the formation of an effective attorney-client relationship and to ensure that knowledge of the case is not lost in transfers, the ABA 10 Principles require that the “same attorney continuously represents the client until completion of the case.” Principle 7, ABA Ten Principles of a Public Defense Delivery System.
The ABA Criminal Justice Standards on Providing Defense Services acknowledge that quality representation may be provided in a number of ways including a managed assigned counsel program, a contract program or a public defender office.
To ensure that all defenders are competent to take on the particular representation assigned, the ABA 10 Principles require that “[d]efense counsel’s ability, training and experience match the complexity of the case.” Principle 6, ABA Ten Principles. The Principles further require that “[d]efense counsel is supervised and systematically reviewed for quality and efficiency.” Principle 10.
Lawyers with too many cases cannot provide adequate representation to each client. Accordingly, a defender’s workload must be “controlled to permit the rendering of quality representation.” Principle 5 ABA Ten Principles of a Public Defense Delivery System
Public confidence in our justice system is founded on a regular and equal application of the rules. It also requires that the public money allotted to the system be spent wisely. The measures in this section look at key fiscal and timing aspects of the right to counsel critical to maintaining public trust in our indigent defense system, including Eligibility Screening, Attorney Selection, Attorney Compensation, the Independence of the public defense function, and Funding.
In selecting a defender for a particular case, the “appointment process should never be ad hoc.” Commentary, Principle 2, ABA Ten Principles of a Public Defense Delivery System. “Except where there is a need for an immediate assignment for temporary representation, assignments should not be made to lawyers merely because they happen to be present in court at the time the assignment is made. A lawyer should never be assigned for reasons personal to the person making assignments.” Standard 5-2.1, ABA Criminal Justice Standards on Providing Defense Services.
Assigned defense counsel “should receive prompt compensation at a reasonable hourly rate and should be reimbursed for their reasonable out-of-pocket expenses. Assigned counsel should be compensated for all hours necessary to provide quality legal representation. Compensation for assigned counsel should be approved by administrators of assigned-counsel programs.” Standard 5-2.4 ABA Criminal Justice Standards on Providing Defense Services.
“The public defense function, including the selection, funding and payment of defense counsel [should be] independent.” Principle 1, ABA Ten Principles of a Public Defense Delivery System. Independence is necessary “to guarantee the integrity of the relationship between lawyer and client.” Independence requires that all defenders “be free from political influence and should be subject to judicial supervision only in the same manner and to the same extent as are lawyers in private practice.” Standard 5-1.3, ABA Criminal Justice Standards on Providing Defense Services.
“Government has the responsibility to fund the full cost of quality legal representation for all eligible persons[.]” Standard 5-1.6, ABA Criminal Justice Standards on Providing Defense Services.
