Pleading the Sixth: On August 7, 2023, the American Bar Association (ABA) passed a revision of the ABA Ten Principles of a Public Defense Delivery System, giving policymakers a new roadmap for providing public defense. The Ten Principles is revised after 21 years and comes at the perfect time. Independent state oversight, statewide data collection, elimination of public defender fees, and early access to counsel are highlights from this revision.
On August 7, 2023, the American Bar Association (ABA) passed the revised ABA Ten Principles of a Public Defense Delivery System, a “critically important roadmap” to help policymakers provide “effective indigent defense services as required by the Sixth Amendment.” This could not have come at a better time. Three years of Covid-19 and its continued aftermath brought constitutional upheaval to a number of states, unmooring public defense systems and leaving behind a trail of poor people without lawyers in jails across the nation.
While each state is unique, no state is alone in its obligation under the Sixth and Fourteenth Amendments to house a functional public defense system that protects the right to counsel for every poor defendant. This is an extraordinarily complex mandate to fulfill for any state government, especially in a post-Covid-19 legal market, and as the legal requirements for the right to counsel continue to expand and evolve.
To all the policymakers and stakeholders today who play a role in upholding this constitutional right: these ABA Ten Principles are revised and rewritten for you. Below are the highlights.
ABA Principle 1: Independence remains the bedrock of a constitutional public defense system
Independence remains the first ABA principle, and for good reason. The U.S. Constitution requires public defense to be “free of state control.” This was true in 1932 when the U.S. Supreme Court questioned the role of judicial oversight of the defense function, in 1979 when the Court stated independence of appointed counsel is an “indispensable element” of “effective representation, in 1984 when the Court reaffirmed “independence of counsel” is “constitutionally protected,” and it remains true today.
A public defense system should be controlled solely by its duty to protect the constitutional rights of indigent defendants. A public defense system lacks independence when its head is directly appointed by and beholden to a political official (e.g., the governor, county board), judicial official, or partisan commission and is therefore controlled by political, judicial, or partisan interests.
This is why, 21 years later, the first ABA principle maintains: “To safeguard independence and promote effective and competent representation,” an independent commission must oversee the public defense function. An oversight commission is independent when the appointed members are “divided among the different branches of government” and no member is a judge, prosecutor, law enforcement official, or current indigent defense attorney.
ABA Principles 2 & 4: State oversight hinges on statewide data collection
In turn, ABA Principle 2 calls for this independent oversight to occur at the state level. Citing Gideon and its progeny: “the responsibility to provide public defense representation rests with the state; accordingly, there should be adequate state funding and oversight” of the public defense function.
State oversight (Principle 2) hinges on statewide data collection (Principle 4).
Regardless of whether public defense is administered and funded at the state or local level (or a hybrid of the two), the state can never shirk its constitutional responsibility. Even in states that fully delegate their constitutional responsibility to localities (as California, Illinois, Mississippi, Pennsylvania, and Washington do), the state still needs some way of knowing, on an ongoing basis, whether it is meeting its Sixth and Fourteenth Amendment obligations. Therefore, the state needs some way of assessing, on an ongoing basis, that every appointed counsel in the state is qualified and trained to handle the complexity of each appointed case (Principle 7), has reasonable workloads (Principle 3), provides continuous representation (Principle 8), and consults with necessary legal and non-legal professionals to address immigration and other civil consequences (Principle 9).
Assuming, based on reputation or anecdote, that local public defender offices in a state are strong does not suffice as state oversight. Neither is passively waiting for ineffective assistance of counsel rulings in individual cases. ABA Principle 4 calls for the state to proactively “collect reliable data on public defense, regularly review such data, and implement necessary improvements.” ABA Principle 4 also calls for public defense providers to collect and make publicly available reliable data on caseloads and workloads; major case events; use of investigators, experts, and social workers; case outcomes; all monetary expenditures; and demographic data on lawyers and clients.
Statewide data collection puts flesh on the bones of state oversight. An independent state oversight commission that reliably collects data to ensure public dollars are spent to meet a state constitutional obligation is not unreasonable – it is sound judgment, fiscally responsible, and can only help public defense attain equal footing in the legal system (Principle 10).
ABA Principle 6: Using statewide data collection to track counsel waivers
A critical data point at the heart of the right to counsel that the independent state-level oversight entity should collect is the number of indigent defendants that plead guilty without counsel each year in the state. Most states today cannot generate this data point, though we know the number is in the tens of thousands.
When indigent defendants must pay to apply for a public defender and pay back the cost of public defense services (now eliminated through Principle 5); when the only lawyer for them to speak with is the prosecutor because there is no public defender available; when they are not advised of, or cannot understand, their right to counsel because of limited English proficiency, competency, or medical and mental health ailments; when the court routinely accepts uncounseled guilty pleas at the first court appearance – indigent defendants are steered into waiving counsel and pleading guilty.
ABA Principle 6 disrupts this process: waiver of the right to counsel “should never be coerced or encouraged. Before a person may waive counsel, they must be provided a meaningful opportunity to confer with a defense lawyer who can explain the dangers and disadvantages of proceeding without counsel…” A counseled waiver ensures it is made knowingly and intelligently and shields a person from extreme system pressures at a critically vulnerable moment in their life and case.
Take the first step
The revised ABA Ten Principles recommends each jurisdiction “swiftly assess its compliance with the Ten Principles . . . and implement any necessary legal and policy changes where deficiencies may exist.”
While this offers a critical roadmap for policymakers, implementing these revisions will not be easy and will take time. A first step in a state may be for the government to create a statewide task force of diverse stakeholders, including national/state experts and state/local policymakers, to identify and make recommendations for improvements. State-level understanding and consensus on this issue are important for informed and sustainable legislative solutions. 6AC stands ready to assist each state as it chooses how best to comply with these Ten Principles in a way that honors the state’s unique jurisdictional needs.