On July 22 and 23, 2010, the Brennan Center for Justice hosted the 8th Annual Community Oriented Defender (COD) Network Conference at NYU Law School in New York City. Over sixty participants representing nearly 30 defender organizations attended this year’s convening. During the two days, defenders, social workers, and researchers discussed ways to better serve their clients, participate in policy advocacy and systemic reform, and build the capacity of their organizations.

The first day of the conference began with a presentation on the importance of adopting evidence based practices and program evaluation to secure funding and public support for defense services. This was followed by a panel on barriers to re-entry, which focused specifically on legal financial obligations that accumulate into burdensome debt for individuals as they move through the criminal justice system. Attorneys from the Brennan Center and the Los Angeles County Public Defenders’ Office provided national and local perspectives on ways to challenge these fees through legislative reform.

The conference’s keynote speaker was Daniel Olmos, Senior Counsel in the new Access to Justice Initiative lead by Laurence Tribe at the U.S. Department of Justice (DOJ). Following his remarks on the Initiative’s current projects and future plans, participants had the opportunity to ask questions and discuss the role of the DOJ in supporting indigent defense systems across the country. Afternoon discussions focused on the specific challenges of representing clients with mental illness, and the role of social workers in helping to divert individuals from the system and address their non legal needs. The last panel for the day spoke to the use of privately funded fellowship programs to deepen the work of public defender offices and create new initiatives that advance whole client advocacy.

The next morning, Frantz Gerome and Emmanuel Candelario of the Brotherhood/Sister Sol, a Harlem based community organization that develops the leadership capacity of Black and Latino youth, performed spoken word poetry. Through their writings and a question and answer session that followed, Frantz and Emmanuel not only described the underlying conditions facing communities where defender offices operate – policing, racial profiling, and poverty – but also gave voice to the ways in which young people respond to and resist these conditions. In keeping with past conference discussions on racial disparities in the criminal justice system, the morning panel that followed featured two promising policy reform projects dealing with pre arrest diversion and bias in jury selection. The rest of the day was devoted to a visit to the Bronx Defenders’ office, where conference participants heard from staff members on the Defenders’ innovative organizational model and practice areas.

Below are summaries of the conference sessions. If you would like to learn more about the COD Network and its activities please contact Neeta Pal at nabanita.pal@nyu.edu. Download the conference agenda here.

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Panel Re-Caps

Download Conference Agenda

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JULY 22, 2010

Evidence Based Practices

 

JT Taylor, LFA Group

Margaret Gressens, Research Director, North Carolina Office of Indigent Defense Services

At a time when governments are slashing budgets wherever they can, it is often difficult for defender associations to convince state and city officials to continue funding existing programs, let alone allocate resources for new ones. The first panel in this year’s COD conference dealt with the question of how defender programs can best measure the results of community-oriented initiatives in order to better educate the public about their work and obtain the funding necessary to sustain and expand vital programs. JT Taylor, a consultant with LFA Group in San Francisco, CA, provided tips for integrating new evaluation programs into the everyday work of defender associations. Margaret Gressens, Research Director of the North Carolina Office of Indigent Defense Services (IDS), described an evaluation program in action.

JT Taylor works with defender programs to evaluate their effectiveness. Taylor offered an overview of why evaluation matters and how programs can get the most out of data collection. Not only can evaluation garner grants and foster a climate of continued organizational learning, but long-term evaluation programs can also inform the larger defense bar and help to create a vast body of knowledge about effective practices in indigent defense.

 Taylor provided tips for integrating new evaluation programs into the everyday work of defender associations:

* Begin by articulating your desired long-term impact. Ask: how do you want the world to be different because of your work?

* Identify specific, achievable goals on the road to that impact. Ask: what is feasible, given the resources available to you?

* Identify indicators of progress toward your goals that you can measure through an evaluation initiative.

* Once you have collected and analyzed data, share it both internally and with external stakeholders (clients, grantors, other actors in the criminal justice system).

* Throughout this process, don’t neglect qualitative data. Personal stories may be the most powerful way to make your case.

Next, Margaret Gressens gave an account of the evaluation program being developed by IDS. Gressens explained that performance measurement, when shared among defenders and prosecutors or judges, can facilitate mutually beneficial solutions to inefficiencies and shortcomings in the criminal justice system. Gressens offered the example of an IDS initiative aimed at reducing the prevalence of pre-trial incarceration: through data collection, IDS was able to demonstrate that some counties with particularly high bond amounts and widespread pre-trial incarceration did not actually have relatively higher failure-to-appear rates, leading counties to lower their bond amounts and reduce pre-trial incarceration time. Not only did this result in savings to the justice system because counties did not have to pay to keep indigent defendants in jail during the pre-trial period, but it also resulted in savings to social services agencies, because the children of indigent defendants stayed out of the foster care system while their parents awaited trial.

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Barriers to Re-Entry: Fees, fines and criminal justice debt

 

Rebekah Diller, Deputy Director, Justice Program, Brennan Center for Justice

Mitali Nagrecha, Pro Bono Counsel, Brennan Center for Justice

Kimberly Wong, Legislative/Policy Advisor, Los Angeles Public Defender

Rebekah Diller opened the panel with an overview of the problem of criminal debt, explaining how criminal defendants make their way through the court system accumulating a multitude of legal financial obligations (LFOs) and how such fees, though perhaps attractive to policymakers facing tight budget constraints, severely hamper the efforts of those leaving prison to reintegrate successfully into their communities.

Diller mentioned two signs of progress in the area: 1) along with a Florida public defender office, the Brennan Center calculated how much money one Florida county was spending to jail defendants due to LFO payment-related issues, and, as a result, the county changed its practices, scaling back the costly practice of incarcerating individuals for failure to pay LFOs or failure to appear at LFO-related court appearances; and 2) in Massachusetts, advocates were able to beat back a local jail fee that was on the verge of passing and convinced the legislature to instead create a commission to examine the costs and benefits of such fees, comparing the negative consequences borne by defendants with the amount of money raised by these fees.

Mitali Nagrecha spoke about the Brennan Center’s forthcoming national report on fees and fines. This report investigates LFO practices in the fifteen states with the highest prison population, specifically looking at the set of criminal justice “user fees”. All fifteen states attach a fee upon conviction, charge fees related to supervision, and charge defendants for stays in prisons or jails. Thirteen states expect defendants to pay at least a portion of the cost of a public defender. Disturbingly, states tend to rely on this influx of money for practices totally unrelated to the administration of criminal justice.

Worse yet is that an inability to pay legal financial obligations often lands defendants in prison. Two routes to prison are arrests for nonpayment or arrests for failure to appear, both of which occur in more than half of the states studied in the report. Nagrecha also discussed other troubling collateral consequences of nonpayment, such as driver’s license suspension, which can make it impossible to maintain employment or can lead to steep criminal penalties for driving without a license.

Kimberly Wong of the Office of the Los Angeles County Public Defender’s Office explained that when working with legislatures, courts, district attorney’s offices, law enforcement, and other stakeholders, defenders must demonstrate that their ideas are good policy for the community at large and will create positive, “win-win” outcomes. Speaking from experiences as a Legislative Advisor, Wong encouraged defenders to work together with stakeholders from the “other side” to identify mutually beneficial solutions, particularly those facilitating successful re-entry into the community. The Los Angeles County Public Defender’s Assistance to Prisoners with Child Support Orders (APWCSO) program is one such example of collaboration with the Sheriff’s office and the County Child Support Services. The program identifies individuals with a child support order and reserves their financial obligation during the period of incarceration to prevent debt from skyrocketing while they are effectively unemployed. APWCSO aims to strengthen families in the long run by ensuring that individuals can realistically fulfill their obligations following release.

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A Discussion on the Promise of the COD Model

 

Daniel Olmos, Senior Counsel for Access to Justice Initiative, U.S. Department of Justice

Daniel Olmos, Senior Counsel for the Department of Justice’s (DOJ) new Access to Justice Initiative created in March 2010 and led by Laurence Tribe, spoke on the Initiative’s mandate: to address the crisis in criminal defense. The Initiative will also work to enhance civil legal services, a mission that is critically linked with improving indigent defense.

According to Olmos, the Initiative will collaborate with public defender offices to address inadequate legal representation for the poor. The Initiative will serve as a liaison between the advocacy community and the judiciary, and has already met with a number of public defenders and state judges. Positive change has to come from the bench, Olmos said, as legislatures have been reluctant to tackle shortcomings in indigent defense. The Initiative also plans to broaden the DOJ’s approach to reducing crime, by looking at reclassification efforts as well as the role of drug courts, family courts and mental health courts. While it is obvious to many that the COD model works, Olmos noted, the community has to go beyond its traditional support base and convince others that holistic defense makes sense on both an individual level and a systemic level.

Conference participants raised a number of issues that they thought were relevant to the Initiative's purview, such as: securing equal funding for defender offices and expanding loan forgiveness programs for individuals seeking careers in public defense. Olmos was optimistic about the Initiative’s unique role as a federal champion for strengthening criminal defense and civil legal services, but he also noted that the Initiative’s ability to influence the legislative process is contingent upon DOJ wide support for the given piece of legislation.

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Representing Clients with Mental Illness

 

Karen Bower, Senior Staff Attorney, The Bazelon Center for Mental Health Law

Jeanette Kinard, Chief, Travis County Mental Health Public Defender

Jeanette Kinard, the Travis County Mental Health Public Defender, runs an office that was the first of its kind in Texas—public defense lawyers collaborating with social and case workers to provide holistic services to mentally ill clients. Ms. Kinard began her presentation by screening a documentary, “A Different Kind of Law.” Lawyers, social workers, and case workers in Ms. Kinard’s office address the issue of mental illness in a number of ways: providing more information to the court about the client’s illness, assisting clients’ in their search for housing, and assisting clients in accessing medical treatment. Above all, as one social worker discusses in the film, the work is about providing what the client wants and empowering him or her to address the situation as he or she sees fit. As a result of this work, 40% of cases that come to the office end in dismissal. The office has also developed a collaborative relationship with the sheriff and others in law enforcement who believe the program promotes public safety.

Following Ms. Kinard’s presentation, Karen Bower of the Bazelon Center for Mental Health Law in Washington, D.C. shared strategies to combat mentally ill persons’ lack of access to a variety of services. Ms. Bower began describing how the Americans with Disabilities Act (ADA) can be used as a tool to ensure that the mentally ill receive equal treatment and reasonable accommodation. Ms. Bower then went on to note other barriers mentally ill people face to equal treatment in the justice system. Discharge from prison and parole are two points at which people with mental illness may not receive adequate care. They may be unable to connect with the appropriate services (such as health care) when released from prison, and are at times released without adequate medication. Parole officers often do not have the training to understand the inability of their mentally ill clients to fulfill some conditions of parole, leading to technical violations and potential further jail time. Finally, some programs meant to benefit the mentally ill may have unintended negative consequences, such as mental health programs that people may only access if they plead guilty to an offense.

Ms. Kinard and Ms. Bower’s talks spurred a great deal of discussion, touching on such issues as the complexity of attorney-client privilege when social workers and lawyers are working together, the importance of trainings and education for other players in the justice system, and the role of mitigation reports by social workers in assisting clients who have suffered trauma.

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Using Private Funded Fellowship Programs to Expand the Capacity of COD Offices

 

Rebecca Bers, Associate Dewey & LeBoeuf | former Dewey & LeBoeuf Community Service Fellow at the Orleans Public Defender

Roxanna Gutierrez, Chief Operating Officer, Neighborhood Defender Service of Harlem

Adam Culbreath, Program Officer, Soros Justice Fellowships, Open Society Institute

Private fellowships can be a valuable resource for defender organizations, particularly at a time when budget shortfalls may limit funding for novel initiatives. Rebecca Bers, an associate at Dewey & LeBouef, spoke about her experience as a Dewey & LeBouef Community Service Fellow at the Orleans Public Defenders. During her eighteen months at OPD, she brought litigation to address persistent rights violations in the criminal justice system that might have otherwise gone uncorrected. As one of only a few Spanish-speaking staff members, she found she was valuable not only as an attorney, but also as an interpreter for client meetings. Rebecca concluded by chronicling how her work as a fellow served her well in private practice, particularly due to the extensive brief-writing experience she obtained while at the OPD. Private fellowships also enable new attorneys to learn valuable lessons about efficiency, as they assist organizations in assessing their resources and then decided how to undertake vital programs while staying within their means.

Roxana Gutierrez of the Neighborhood Defender Service of Harlem discussed the potential for defender associations to use short-term fellowships to fulfill long-term community needs. NDS has been host to a variety of fellowship projects, including a juvenile practice that represents clients in school suspension proceedings and an initiative that represents public housing residents facing eviction because of contact with the criminal justice system.

Of course, fellowships can come with added costs to the host organization. Many fellowships do not provide additional funding for health care benefits, and in some cases will not cover the full cost of the fellow’s base salary. Roxana emphasized that organizations should not discount the possibility of sponsoring fellows simply because they are resource-constrained. For example, for those defender associations concerned about lacking the requisite internal expertise to supervise a fellowship project, Roxana suggested co-sponsoring a fellow with another organization, as NDS did with the Immigrant Defense Project. (Their joint fellow focused on addressing the immigration-related legal needs of non-citizen criminal defendants; she also staffed a hotline at IDP that assisted defense attorneys around in more fully understanding the immigration consequences of their clients’ criminal charges). Margaret also gave an example of a successful appeal to a city council member that resulting in funding for paralegal support for a fellow.

A continuing challenge for organizations sponsoring private fellows is how they can maintain the new initiatives after the fellows leave. NDS was able to obtain a grant from the city government to fund a continuing position for a Spanish-speaking fellow who was representing clients with limited English proficiency, but not every initiative started by an NDS fellow has been able to continue at full capacity after the fellow’s departure. Continuity of projects is a priority for NDS when feasible; although primarily a defender organization, NDS has found that incorporating civil legal projects run by fellows has improved overall outcomes for clients in criminal cases.

Finally, Adam Culbreath from the Open Society Institute spoke about the Soros Justice Fellowship program. Soros Justice Fellowships differ from many other private fellowships in that, in addition to funding work by lawyers, they also give grants to community organizers, policy advocates, journalists, filmmakers, and activist researchers, among others. The fellowships awarded to attorneys are also unique, funding projects undertaken not only by recent law school graduates, but by experienced attorneys as well.

Because OSI strives for diversity among their grantees, only 1-2 Soros Justice Fellowships are awarded to attorneys seeking placement in defender associations. Adam emphasized that those organizations seeking to sponsor a Soros Justice Fellow should envision the fellowship as a laboratory and take risks; the fact that a project isn’t fully conceptualized or evaluated should not deter organizations from proposing it. Successful fellowship applications are those that endeavor to do more than simply fill a staff vacancy, and instead take on a life of their own. As several conference participants pointed out during the discussion portion of the panel, host organizations seeking to continue projects started by Soros Justice Fellows might consider instituting evaluation initiatives and drawing on concrete evidence of positive results to convince legislators to fund fellowship projects after the fellow’s term is up.

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JULY 23, 2010

Creative Strategies for Addressing Racially Disparate Law Enforcement and Prosecution Practices

 

Lisa Daugaard, Deputy Director, The Defender Association | Supervisor, Racial Disparity Project

Randy Susskind, Deputy Director, Equal Justice Initiative

Public policy initiatives that tackle racial disparities in the criminal justice system have long been the focus of COD forums. This year, Lisa Daugaard, Deputy Director of The Defender Association and Supervisor of its Racial Disparity Project, discussed the organization’s Law Enforcement Assisted Diversion program (LEAD), a “pre-booking diversion” initiative that collaborates with local law enforcement to keep low-level drug offenders out of the criminal justice system. Through LEAD, individuals accused of low-level drug offenses—a disproportionate majority of whom are African American—can opt to receive treatment and support instead of facing incarceration. The program has received praise from a host of unlikely supporters, including the Seattle Chief of Police, the King County Sheriff and the King County Prosecutor.

While Seattle’s population is only eight percent black, a staggering 67 percent of those arrested for drug delivery are black, due in part to law enforcement targeting crack over cocaine. In litigating drug arrest cases, The Defender Association’s Racial Disparities Project encountered clients who often expressed that given the right resources, they would work to rebuild their lives. With this understanding, The Defender Association initiated the LEAD program.

Although LEAD helps address the disparate impact that drug law enforcement has on communities of color, Daugaard noted that the program does not actually stop or completely alleviate racial disparities in Seattle and King County’s drug arrest patterns. LEAD works within existing law enforcement patterns to treat individuals who, because of racial disparities, are most likely to be targeted and arrested for minor drug offenses.

Randy Susskind, Deputy Director of the Equal Justice Initiative (EJI), discussed the organization’s efforts to eliminate jury discrimination. Through the organization’s June, 2010 report, Illegal Racial Discrimination in Jury Selection: A Continuing Legacy, EJI hopes to draw attention to the ongoing failure of courts to enforce laws against the racially motivated exclusion of potential jurors.

In its study of eight southern states—Alabama, Arkansas, Florida, Georgia, Louisiana, Mississippi, South Carolina, and Tennessee—EJI has found troubling evidence of persisting discrimination in jury selection: in Alabama, 80 percent of qualified African-American jurors have been removed from capital cases; in Tennessee, no appellate courts have ever found Batson violations in criminal cases; and it has been documented that, at times, potential black jurors are struck from jury participation through vague, “race-neutral” reasons such as “low intelligence” or “lack of morals.”

Susskind argued that existing laws do not do enough to protect black participation in juries, as underrepresentation and Batson claims are hard to litigate. Even in instances where racial bias is discovered, penalties are not substantial enough to discourage further discrimination.

Moving forward, EJI hopes to bolster the involvement of community leaders, civil rights groups, and litigators by emphasizing how discrimination in jury selection can exclude or misrepresent large portions of the community. Susskind suggested that a strong community alliance against racial disparities can push prosecutors—especially those in elected offices—into making formal commitments to fight racially motivated discrimination in jury selection.

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Field Trip to Bronx Defenders’ Office

 

This year’s trip to the Bronx Defenders’ office provided conference participants with an inside look into one of the pioneering organizations of the COD movement. Located in the country’s poorest Congressional district, the Bronx Defenders’ follows an innovative organizational model that reflects their clients’ holistic needs. Organized around three “practice areas” – Criminal Defense, Family Defense and Civil Action – the Defenders’ 135 person staff of attorneys, social workers, investigators, advocates and more, are also grouped in teams. Each team is cross trained to understand the specific issues facing the different practice areas. Along with the team model, the Defenders’ thorough intake process helps to streamline client services and create a “one stop shop” for individuals

On our tour of the office, COD members observed countless signs of the Defenders’ philosophy of collaboration and openness in action: from the shared workspace of entry level attorneys who undergo an intensive one year training to murals and paintings produced by children from the community arts exchange (CAE), a year long partnership with a local elementary school. In addition to touring the office, we heard from staff in each of the practice areas about the specific and overlapping aspects of their work. An attorney serving undocumented immigrant clients described the complexities of navigating a criminal conviction while a social worker from the Family Defense Practice spoke to the collateral consequences of state intervention in households.

The Bronx Defenders recently received a grant from the Department of Justice to create the Center for Holistic Defense, which is currently providing technical assistance to three public defender offices in Reno, Wisconsin, and Knoxville, to implement a community oriented defense practice. Given the Center’s mission to expand holistic defense and the unique regional and demographic contexts in which defender offices operate, COD members were a ripe audience for discussing the challenges of transforming traditional public defense. COD members from public defender offices across the country raised questions of funding and sustainability while also sharing experiences of “what works” from their own offices.