Assessing the Provision of Criminal Indigent Defense

Assessing the Provision of Criminal Indigent Defense GABRIEL PETEK | LEGISLATIVE ANALYST SEPTEMBER 2022 AN LAO REPORT ii LEGISLATIVE ANALYST’S OFFICE AN LAO REPORT Executive Summary Individuals charged with a crime have a right to effective assistance of legal counsel under the U.S. and California Constitutions. This is to ensure they receive equal protection and due process under the law. The government is required to provide and pay for attorneys for those individuals who are unable to afford private attorneys. This is known as “indigent defense.” Importance of Effective Indigent Defense. In addition to being a constitutional right, effective indigent defense in criminal proceedings can help mitigate or eliminate major consequences that defendants face regardless of whether they are convicted, such as losing a job due to being held in jail until their case is resolved. Effective indigent defense can also help ensure that all individuals are treated equitably in criminal proceedings, particularly lower-income individuals and certain racial groups who are at greater risk of experiencing serious consequences from being involved in the criminal justice system. Counties Primarily Responsible for Indigent Defense. In California, counties are primarily responsible for providing and paying for indigent defense. However, recent litigation suggests that the state could be held responsible for ensuring that effective indigent defense is being provided. Indigent defense is generally provided in a combination of three ways: (1) public defender offices operated by the government, (2) private law firms or attorneys that contract with the government to provide representation in a certain number of cases and/or over a certain amount of time, or (3) individual private attorneys who are appointed by the court to specific cases. The actual provision of indigent defense services, however, varies by county. State Lacks Information to Assess Indigent Defense Service Levels. The state currently lacks comprehensive and consistent data that directly measures the effectiveness or quality of indigent defense across the state. This makes it difficult for the Legislature to ensure effective indigent defense is being provided. Analysis of Limited Data Raises Questions About Effective Provision of Indigent Defense. In the absence of consistent statewide data and metrics more directly measuring the effectiveness or quality of indigent defense, we analyzed limited available data comparing funding, caseloads, and staffing of indigent defense providers with district attorneys who prosecute cases, allowing for a rough, indirect assessment of existing indigent defense service. The identified differences are notable enough that they raise questions about the effective provision of indigent defense in California. For example, in 2018-19, spending on district attorney offices was 82 percent higher than on indigent defense. Recommend Three Key Steps for Legislative Action. We recommend three key steps that the Legislature could take to ensure it has the necessary information to determine whether a problem exists with indigent defense service levels, what type of problem exists, and how to effectively address such a problem. Specifically, we recommend the Legislature: (1) statutorily define appropriate metrics to more directly measure the quality of indigent defense; (2) require counties collect and report data to the state’s Office of the State Public Defender; and (3) use the data to determine future legislative action, such as identifying whether resources are needed to ensure effective indigent defense as well as how such resources could be targeted to maximize their impact. www.lao.ca.gov 1 AN LAO REPORT 2 LEGISLATIVE ANALYST’S OFFICE AN LAO REPORT INTRODUCTION Individuals charged with a crime have the improve the state’s oversight of indigent defense constitutional right to effective assistance of legal by defining appropriate metrics to more directly counsel to ensure that they receive equal protection measure the quality of indigent defense, requiring and due process before being deprived of their the collection and reporting of data, and using such liberty. The government is required to provide and data to inform future legislative actions. In preparing pay for attorneys for those individuals who are this report, we consulted with indigent defense unable to afford private attorney representation. providers, researchers, and other stakeholders. This is known as “indigent defense.” In this We also analyzed data reported by counties to report, we: (1) provide background information the State Controller’s Office and the California on the provision of indigent defense in California; Department of Justice. Finally, we reviewed various (2) discuss existing indigent defense service levels papers and studies examining indigent defense in and the lack of information to assess indigent California as well as other jurisdictions. defense levels; and (3) make recommendations to INDIGENT DEFENSE IN CALIFORNIA What Is Indigent Defense? if individuals appear without an attorney for their first court hearing (known as arraignment) which Government-Funded Representation of is generally 48 hours from arrest, California courts Defendants Unable to Afford Private Attorneys. are required to (1) inform them of their right to have The U.S. Constitution prohibits individuals from an attorney before being arraigned at the end of being deprived of life, liberty, or property without the first hearing, (2) ask if they would like to have due process of law. It also prohibits individuals an attorney appointed, and (3) appoint an attorney from being denied equal protection under law. to represent them if they desire one and are unable The U.S. Constitution further guarantees specific to pay for their own attorney. Indigent defense, as rights to individuals in criminal cases, including used in this report, refers to government-funded the right to a speedy trial and the right to have the representation of defendants who are unable to hire assistance of an attorney. In combination, these private attorneys. constitutional rights have been interpreted to mean that defendants in criminal cases are entitled to How Is Indigent Defense Provided? receive effective assistance from an attorney when Representation Provided in Three Major their life or liberty is at stake, unless this right Ways. States have developed systems for providing is knowingly and intelligently waived. (We note, attorneys to defendants who are unable to pay however, that what specifically constitutes effective for representation in criminal cases. In California, assistance is generally undefined. As a result, indigent defense systems provide representation effective assistance has been subject to various in one, or a combination, of three ways: (1) public court rulings.) If a defendant is unable to afford defender offices operated by the government, an attorney, the government is responsible for (2) private law firms or attorneys that contract providing an attorney to ensure that the defendant with the government to provide representation in has the opportunity for a fair trial. a certain number of cases and/or over a certain The California Constitution contains nearly amount of time, or (3) individual private attorneys identical provisions. State statutes contain who are willing to take on indigent criminal provisions to ensure that both federal and state cases and are appointed by the court to specific constitutional standards are met. For example, cases with compensation ordered by the court. www.lao.ca.gov 3 AN LAO REPORT (As we discuss below, the state recently authorized office can only represent one defendant in a the Office of the State Public Defender [OSPD] to multi-defendant case.) The second priority is to assist trial court indigent defense providers.) county-contracted private law firms or attorneys. Counties Primarily Responsible for Indigent The final priority is to individual private attorneys Defense. In California, counties are primarily appointed by the court. responsible for providing and paying for indigent Actual Provision of Indigent Defense Varies defense services. Most counties use at least two by County. The provision of indigent defense of the three ways described above to provide service varies by county. For example, some representation. California law authorizes counties counties provide indigent defense representation to establish a public defender office to provide through criminal defense attorneys primarily representation within the county. Currently, as focusing on addressing the immediate legal shown in Figure 1, 34 of the 58 counties have charge(s) facing the defendant. Other counties chosen to establish public defender offices. provide indigent defense services in a holistic The remaining counties do not have public defender manner in which a defendant’s legal issues offices. In counties with public defender offices, the are addressed along with underlying social or Chief Public Defender is appointed by the county other needs that could lead to future criminal board of supervisors unless the board decided the activity (such as the loss of employment, housing position was to be elected at the time the office was needs, mental health assistance, or immigration created. Currently, only the Chief Public Defender consequences). In this holistic defense model, of San Francisco County is elected. State law defense attorneys—as well as investigators, social requires that public defenders defend individuals workers, and other staff—work collectively on who are (1) charged with a criminal offense that a defendant’s case. Additionally, the manner in can be tried in the trial courts and (2) financially which indigent defense staff are used can also unable to pay for attorney representation. Upon an vary. For example, some public defender offices individual’s request or a court order, counties must that employ social workers use them to connect also provide representation in other specified cases where liberty may Figure 1 be at stake, such as mental health 34 of 58 Counties Operate Public Defender Offices civil commitments. Counties can contract with private law firms or Counties With a Public Defender Office (34 Counties) Alameda Monterey Santa Cruz attorneys in lieu of, or in addition Contra Costa Napa Shasta to, their public defender offices. El Dorado Nevada Siskiyou Finally, state law authorizes the Fresno Orange Solano court to determine reasonable Humboldt Riverside Sonoma Imperial Sacramento Stanislaus compensation for private attorneys Kern San Bernardino Tulare providing indigent defense Lassen San Diego Tuolumne representation that must be paid by Los Angeles San Francisco Ventura the county. Marin San Joaquin Yolo Mendocino Santa Barbara In counties with populations Merced Santa Clara of more than 1.3 million people, Counties Without a Public Defender Office (24 Counties) state law requires courts appoint Alpine Lake San Mateo attorneys to defendants in a Amador Madera Sierra particular priority order. Public Butte Mariposa Sutter defender offices, if established Calaveras Modoc Tehama Colusa Mono Trinity by the county, have first priority. Del Norte Placer Yuba (A public defender office can refuse Glenn Plumas cases in various circumstances. Inyo San Benito For example, a public defender Kings San Luis Obispo 4 LEGISLATIVE ANALYST’S OFFICE AN LAO REPORT clients with services while others use them to case will proceed through the courts, and how identify mitigating factors to assist with clients’ legal cases will be resolved. Stakeholders further defense (such as a defendant’s history of having argue that effective assistance of counsel is even been abused). more important as the majority of criminal cases OSPD Recently Authorized to Assist Trial are resolved prior to trial—such as through plea Court Indigent Defense Providers. OSPD bargains. This means these cases are typically is a state agency that historically represented decided through negotiations between prosecutors defendants appealing their death penalty and defendants. Accordingly, without effective convictions. The mission of the agency was assistance of counsel, defendants would be at a expanded in 2020 to include representation in significant disadvantage against legally trained trial court indigent defense cases—which is in prosecutors and would have difficulty obtaining a addition to the representation provided by counties fair outcome. We note that, in 2019-20, 97 percent discussed previously. Additionally, the state also of felony cases were resolved prior to trial. Of this expanded OSPD’s mission to include providing amount, 80 percent were guilty pleas. Similarly, assistance and training to indigent defense 99 percent of misdemeanors were resolved prior to attorneys as well as other efforts to improve the trial over the same time period. quality of indigent defense representation. The Helps Mitigate Potential Serious extent to which OSPD intends to use this expanded Consequences. Research demonstrates that authority is currently unclear. involvement with the criminal justice system can have major consequences for defendants, Why Is Effective regardless of whether they are ultimately convicted Indigent Defense Important? of a crime. For example, various interactions—such Constitutionally Guaranteed Equal Protection as being arrested, appearing in court routinely and Due Process Right. As discussed above, the for proceedings, completing required community U.S. and California Constitutions guarantee the right service, and being incarcerated both pre-trial to effective attorney assistance (unless knowingly and post-trial—can have consequences for and intelligently waived) to ensure that defendants defendants’ employment, child custody, housing, in criminal proceedings receive equal protection or immigration status (such as the loss of legal under law and due process before being deprived status and deportation). These consequences can of life or liberty. The U.S. Supreme Court’s decision have a disproportionate impact on lower-income in Gideon v. Wainwright (1963) found that the right individuals. For example, such individuals may to counsel is “fundamental and essential to fair not have jobs willing to provide sufficient time trials” in the United States and that defendants who off to come to court. As such, these defendants are too poor to hire attorneys cannot be assured may choose to settle a case and avoid losing of a fair trial unless attorneys are provided by the their jobs rather than contesting the case and government. The U.S. Supreme Court further noted going to trial. These consequences can also that even an intelligent and educated person would have a disproportionate impact on certain racial be in danger of conviction due to a lack of skill and groups in California as well. This is because these knowledge for adequately preparing a defense to groups are more likely to be (1) involved with establish innocence. As such, effective defense California’s criminal justice system due to the counsel is necessary to ensure a defendant has racial disparities that currently exist in the system a fair trial against government-funded and trained and (2) lower-income due to economic disparities prosecutors—irrespective of their income level. that have existed historically. (Please see the box on the next page for additional information on Stakeholders argue that the right of due process racial disparities in the criminal justice system.) is important in criminal proceedings because Collectively, this means that lower-income prosecutors have significant flexibility to determine individuals and certain racial groups are at greater whether and how to charge individuals (such as for risk of experiencing these serious consequences. a misdemeanor versus a felony), how a defendant’s www.lao.ca.gov 5 AN LAO REPORT Racial Disparities in the Criminal Justice System Research indicates that racial disparities exist at various points of California’s criminal justice system—including in law enforcement stops, arrests, and prosecutions. Such racial disparities are particularly notable for African Americans and Hispanics. Examples of such research are provided below. • Stops. In its 2022 annual report, the state Racial Identity and Profiling Advisory Board evaluated data collected in 2020 from 18 law enforcement agencies, including the 15 largest agencies in California. The board found that a greater proportion of African Americans were stopped (17 percent of stops) relative to their proportion of the population (about 7 percent of the population). • Arrests. In a September 2019 report, the Public Policy Institute of California (PPIC) found racial disparities in arrests statewide. For example, PPIC found that the African American arrest rate in 2016 was three times the white arrest rate. PPIC also found that African Americans have higher arrest rates than whites in nearly all California counties—with arrests rates that are on average about six times higher in counties with the largest disparities and nearly two times higher in counties with the lowest disparities. • Felony Prosecutions. In a 2021 report, Judicial Council found that African American and Hispanic adults were disproportionately represented in felony defendants. Specifically, African Americans made up 19 percent of felony defendants and about 6 percent of the state’s adult population. Hispanics made up 45 percent of felony defendants and 36 percent of the state’s adult population. Additionally, research suggests that African Americans and Latinos could also be less likely to afford a private defense attorney due to economic disparities. Specifically, in a 2016 report examining the Los Angeles area, the Federal Reserve Bank of San Francisco—in partnership with several universities and research organizations—found that the median net worth of U.S. African American households ($4,000), Mexican households ($3,500), and other Latino households ($42,500) were substantially lower than white households ($355,000). Effective assistance of counsel can help mitigate ability to determine whether and how to contest or eliminate such impacts, which is a factor that their cases, which could result in a not guilty affects whether individuals actually receive equal verdict. Additionally, effective assistance can result protection and due process of law. For example, in the identification of mitigating circumstances or effective assistance can result in an individual being relevant defenses that can lead to better plea deals, released from jail pending criminal proceedings that lesser charges, or dismissal of cases—all of which can take months or years to conclude. This allows can help mitigate the major life consequences the individual to avoid serious life impacts—such as that could be experienced by individuals. As such, losing a job or child custody—that otherwise may effective defense, including indigent defense, is have resulted if the individual remained detained. a key tool to help ensure that all individuals are It also reduces the pressure for individuals to settle treated equitably in criminal proceedings. cases to avoid such impacts and allows them the 6 LEGISLATIVE ANALYST’S OFFICE AN LAO REPORT RECENT DEVELOPMENTS IMPACTING INDIGENT DEFENSE IN CALIFORNIA Recent Legal Challenge some of the allegations against it. The court refused to do so and specifically found that the state Concerns have been raised in various could not say it was not responsible for meeting jurisdictions regarding whether effective indigent its constitutional responsibilities just because defense assistance is being provided. A recent the responsibilities had been delegated to the challenge by the American Civil Liberties Union counties. The state settled by agreeing to expand (ACLU) in California, in which Fresno County and the mission of OSPD so that it would be authorized the state were sued, suggests that the state could to provide support for county indigent defense be held responsible for ensuring that effective systems—including providing training and technical indigent defense is being provided. Specifically, assistance, and identifying steps to improve the the state and Fresno County recently settled a state’s provision of indigent criminal defense. The case alleging a failure to provide constitutionally state also agreed to seek funding through the required indigent defense service levels. Notably, annual budget process for such purposes. A total the court ruled that the state could not say it was of $4 million from the General Fund was provided in not responsible for meeting its constitutional 2020-21 ($3.5 million ongoing) for these purposes. responsibilities just because the services are As this case was settled, it is unclear whether other primarily provided by counties. It is unclear the California counties are similarly situated—resulting extent to which other counties (and by extension in potential state liability in those cases as well. the state) could face similar allegations in the future. Below, we discuss the recent legal challenge in We note that Fresno County also settled by more detail. agreeing to various requirements that it must comply with for four years. These requirements ACLU Filed Case Against Fresno County and include: (1) providing a minimum amount of annual the State. The ACLU filed a case against Fresno funding to the Fresno County Public Defender’s County and the State of California in 2015 alleging Office, (2) specifying goals for employing a certain that Fresno County’s indigent defense system failed number of supervisorial staff, (3) regularly reviewing to comply with minimal constitutional and statutory and reporting case files, (4) adopting certain requirements to provide effective assistance policies (such as related to the use of non-attorney of counsel to indigent defendants. As shown in Figure 2, the lawsuit listed nine ways—such as excessive Figure 2 caseloads and a lack of support Alleged Ways Fresno County Failed to Provide staff—in which these requirements Effective Indigent Criminal Defense Service Levels were allegedly violated. It also asserted that the state abdicated • Excessive caseloads. its responsibility to ensure that • Deprivation of conflict-free and independent representation. effective assistance of counsel • Lack of continuous representation. for indigent defendants was being • Inadequate attorney-client contact and confidential communication. provided by the county. • Insufficient or no training for attorneys in the Fresno County Public Defender’s Office. State and Fresno County • Inadequate factual investigation from loss of necessary investigator staffing. Settled Case in January 2020. • Grossly deficient number of support staff in the Fresno County Public Defender’s Office. This case was not fully litigated and • Lack of parity with prosecutorial counterparts. ultimately settled in January 2020. • Failure to monitor and supervise Fresno County’s Public Defense System to ensure Prior to settlement, the state filed a compliance with minimal constitutional and statutory requirements. petition asking the court to dismiss www.lao.ca.gov 7 AN LAO REPORT staff and to trial performance standards), and defense services. Additionally, the 2021-22 budget (5) the regular reporting of specified caseload and included $50 million annually for three years for other data (such the number of cases opened indigent defense providers to address certain and closed). post-conviction proceedings. The budget also required counties to report on how the funding Increased State Involvement was used and that an independent evaluation be Despite primarily being a county responsibility, conducted to assess the impact of the provided the state has increased its involvement with funding by August 1, 2025. Finally, Chapter 583 of the indigent defense system in recent years 2021 (AB 625, Arambula) directed OSPD—upon by providing funding and requiring certain appropriation—to undertake a study to assess assessments. As discussed previously, the state appropriate workloads for indigent defense expanded OSPD’s mission to provide training attorneys and to submit a report with findings and other assistance to trial court indigent and recommendations to the Legislature by defense counsel. Additionally, the 2020-21 January 1, 2024. The 2022-23 budget subsequently budget included $10 million one-time General provided $1 million for this purpose. Fund for a pilot program to provide grants to eligible county public defender offices for indigent STATE LACKS INFORMATION TO ASSESS INDIGENT DEFENSE SERVICE LEVELS In order to help ensure that effective indigent in the priorities and operations of various county defense assistance is being provided, it is important programs—including their indigent defense for the state to periodically assess indigent defense systems. As a result, counties have taken different service levels. However, as we discuss below, approaches to evaluating and monitoring the the lack of consistent data and metrics makes it provision of indigent defense services. This means difficult to fully evaluate existing service levels at that the type of indigent defense data collected, this time. Although, some available data, which how it is collected, and how it is used varies by we present below, raise questions about the county. The specific approach selected generally adequacy of current service levels and whether the reflects how counties plan on using the information. state and counties are providing effective indigent For example, some counties collect data for defense assistance. budgeting purposes while others may collect data to monitor the quality of service provided (such as Lack of Consistent Data and Metrics to ensure attorneys are not assigned to cases that to Fully Evaluate Indigent Defense exceed their experience levels). Service Levels Challenges Collecting Data. There are The state lacks comprehensive and consistent challenges in collecting data on the quality of data that directly measures the effectiveness indigent defense. In some cases, counties may or quality of indigent defense representation not be collecting data in a robust and usable provided across the state. This makes it difficult manner. For example, technology programs used for the Legislature to assess the specific levels and by different actors (such as the public defender effectiveness of indigent defense being provided office, sheriff’s office, or court) may be not be across counties. programmed to capture certain data. There are also challenges coordinating data collection from County Choices Impact Data and Metrics private law firms or attorneys providing indigent Collected. Counties operate independently from defense. Finally, there are also challenges with one another and can make very different choices 8 LEGISLATIVE ANALYST’S OFFICE AN LAO REPORT collecting consistent data. For example, counties determine how they would like to proceed in their (and their departments) may not define a case or cases. In addition, the ability of indigent defense track cases in the same manner. The magnitude of providers to effectively represent their clients such data collection challenges differs by county can be undermined if they have significantly less based on how each county administers and resources than the prosecutors seeking to convict conducts oversight of indigent defense services. their clients. For example, if indigent defense This makes it difficult to fully and fairly evaluate the providers have less resources than prosecutors to effectiveness of indigent service levels currently employ investigative services, it means they might being provided across the state. not be able to fully explore mitigating circumstances Lack of Consensus on Appropriate Metrics. that could impact a client’s defense regardless of While there appears to be consensus on the whether it results in a different outcome. This is overarching goals of providing effective defense because a defendant might not feel their case was representation, there seems to be a lack of fairly and fully argued. consensus in California (and the nation generally) In the absence of consistent statewide data and on what metrics should be used to directly metrics more directly measuring the effectiveness measure the effectiveness of indigent defense or quality of indigent defense, we compare limited representation—further contributing to the variation available data related to the resources available to in data and metrics collected across counties. indigent defense providers as well as the district This is because there are different ways to measure attorneys who prosecute cases. We also compare whether effective assistance is being provided— such data between counties. Examining differences such as whether it is legally effective (including in funding, caseloads, and staffing allows for a whether a different outcome could have been rough, indirect assessment of existing indigent obtained) or perceived to be effective (such as defense service levels by considering the amount whether the defendant felt they received adequate of time and resources available for each client. representation). (In the box on the next page, we The differences we identify below are notable discuss the various metrics and standards currently enough that they raise questions about the effective used across the nation to measure the effective provision of indigent defense service in California. provision of indigent defense representation.) (Please see the box on page 13 for a discussion of limitations of the data used for this assessment.) Comparisons of Limited Data Raise In this section, we use the term indigent defense Questions About Service Levels to refer collectively to (1) county-funded public As discussed in the prior section, there is a lack defender offices, (2) contracts with attorneys, and of consensus on what data and metrics should (3) court-appointed private attorneys. be used to directly measure the effectiveness Differences in Spending Levels. Similar of indigent defense representation—including spending levels between prosecutors and indigent whether legal effectiveness, the perception of defense could indicate that there is a level playing effectiveness, and/or some other definition of field which ensures that both sides have the ability effectiveness should be measured. However, to explore all evidence as well as prosecution/ effectiveness is likely correlated with the amount defense arguments. In 2018-19, nearly $3 billion of time and resources available for indigent was spent statewide to support district attorney defense providers to spend on cases. For example, offices ($2 billion) and indigent defense ($1.1 billion). sufficient resources can enable indigent defense (As we note later in this report, various potential providers to spend the time necessary to develop justifications have been offered by stakeholders a trusting relationship with their clients in order to for differences in resource levels between district obtain information that can be critical to a defense, attorney offices and indigent defense.) As shown to assess what outcomes are desired (such as in Figure 3 on page 14, over the past decade, to minimize time spent incarcerated or to avoid spending on district attorney offices has been immigration consequences), and to assist clients to consistently higher—and growing at a faster rate— www.lao.ca.gov 9 AN LAO REPORT WIDE RANGE OF METRICS AND STANDARDS USED TO MEASURE EFFECTIVE PROVISION OF INDIGENT DEFENSE SERVICES Workload, Efficiency, and Quality Metrics State and local jurisdictions across the country, including in California, use a wide range of metrics to evaluate the effective provision of indigent defense services. These metrics are not mutually exclusive and can be used concurrently with one another. For example, efficiency metrics should be used in combination with quality (or effectiveness) metrics. Below, we describe in more detail the categories of such metrics. Workload Metrics. Workload metrics provide more objective and actionable ways of evaluating indigent defense performance as they generally help measure what activities an office and/or individual has worked on or completed. Workload metrics capture specific tasks (such as the number of active and closed cases), actions that indigent defense providers should engage in (such as the number of cases investigated), or a sense of the quality of representation provided (such as the number of motions filed to dismiss a case). Workload metrics are generally easy to collect as they frequently only involve tracking events. As such, these metrics are frequently used to manage an indigent defense office or to help justify budget requests. These metrics can also be used for comparisons within offices, across jurisdictions, or over time. Efficiency Metrics. Efficiency metrics are intended to measure the extent to which resources are used in a manner that minimizes costs and maximizes benefit. Efficiency metrics can draw comparisons between various pieces of data (such as cost per case by case type) and reflect jurisdictional decisions for acceptable benchmarks for how workload is completed (such as the percent of cases resolved within a specific number of days from attorney appointment). Such metrics can also give a sense of how representation is provided to clients (such as the average time needed to completely resolve cases). Measuring efficiency can be relatively difficult because it typically involves the comparison of data (such as data collected by various stakeholders who use different definitions) or requires the collection of more detailed data (such as when or how cases are resolved). Certain efficiency metrics (such as cost per case) also assume that service is being provided effectively. Additionally, certain efficiency metrics can be impacted by factors outside of the control of indigent defense providers. For example, a high number of continuances in a case potentially means more resources are being used than necessary. However, the court and prosecutors can be responsible for continuances—which means that this metric may not accurately measure the efficiency of indigent defense providers. Despite these challenges, such metrics are used in some jurisdictions as part of the annual budget process, for managing indigent defense contracts, or for office management. Quality (or Effectiveness) Metrics. Quality (or effectiveness) metrics generally measure the value or impact of indigent defense services. Such metrics can be used to ensure that desired service levels are achieved by attempting to assess the effort of indigent defense attorneys (such as the number of days between arrest and first meaningful attorney and client interview), the benefit of outcomes achieved (such as the average percent of sentences avoided), or the avoidance of outcomes not directly related to sentencing (such as job loss or immigration consequences). These metrics are frequently the most difficult to measure and collect data for, as well as to analyze and draw conclusions from, for various reasons. First, these metrics can be highly contextual as they can be impacted by prosecutors and other governmental parties involved in cases, as well as the priorities, decisions, and available resources within a given jurisdiction. 10 LEGISLATIVE ANALYST’S OFFICE AN LAO REPORT For example, the average percent of sentences avoided could be higher in jurisdictions where there is more aggressive prosecutorial charging. Second, these metrics can be impacted by choices made by defendants—such as some defendants accepting a plea offer in order to resolve a case as quickly as possible. Finally, such metrics can be highly subjective—such as whether a case was resolved prior to trial where the client benefits from not engaging in litigation and receives a less serious penalty. In recognition of some of the challenges with these above metrics, other metrics focus on obtaining information directly from defendants through survey mechanisms (such as the percent reporting that they felt their attorney listened to their needs). In a slightly different approach, one California indigent defense provider has chosen to evaluate the quality of their services by surveying criminal justice stakeholders— such as judges and other criminal defense attorneys—to obtain their perspectives on how effectively their attorneys are representing their clients. Given the challenges associated with this type of data, it appears that only a few jurisdictions actually collect and use such data on an ongoing basis. However, our understanding is that more jurisdictions and organizations are beginning to put greater focus on identifying appropriate effectiveness metrics and overcoming the challenges associated with them. Guidelines and Standards In addition to the metrics described above, various guidelines and standards are used by state and local jurisdictions across the country, including in California, to help ensure that minimum levels of effective indigent defense service are being provided. The metrics listed above can be used to ensure these guidelines or standards or met, or used to inform the setting of the standard. We describe a couple categories of such guidelines and standards below. Minimum Quality Guidelines or Standards. Minimum quality guidelines or standards have been established by various international and national organizations (such as the American Bar Association and the National Legal Aid and Defender Association) as well as state and local entities (such as the California State Bar and the Michigan Indigent Defense Commission). The goal of such standards is to help ensure minimum quality service levels. As shown in the figure on page 12, such quality guidelines and standards tend to be broader and more conceptual in nature. Jurisdictions may differ in how they interpret, implement, and determine whether the standards have been met. For example, one standard is to ensure competent representation. However, the specific metrics that should be used to determine whether competent representation is provided are undefined and left to interpretation. Enforcement of these guidelines and standards has been attempted through litigation in various states and jurisdiction or in cases brought by individual defendants. Different jurisdictions ensure compliance with such guidelines and standards in various ways. One such method is through management or performance reviews of indigent defense providers. Another method used is screening attorneys for competency and monitoring billing. For example, the Alameda, Kern, and San Mateo County Bar Associations review applications of private attorneys, determine which cases match their experience and ability levels, and review compensation requests to ensure attorneys are engaging in activities that are considered to be essential in providing effective defense counsel. Caseload Standards. Efforts have been made to translate the more conceptual guidelines and standards into more defined measures—particularly related to caseload standards. In 1976, the National Study Commission of Defense Services established maximum attorney standards—such as annual caseload not exceeding 150 felony cases or 400 misdemeanor cases (excluding traffic cases)—that have been used as a comparison for decades. In more recent years, various jurisdictions have used weighted www.lao.ca.gov 11 AN LAO REPORT time-study methodologies to establish maximum caseload standards tailored to the specific jurisdiction, their court processes, and specific case types. These studies are based on (1) the amount of time practitioners believe should be spent on specific tasks in cases, (2) the number of work hours available, and (3) assumptions about appropriate attorney-to-staff ratios. For example, a time-study in Virginia recommended annual caseloads not exceed 45 non-capital murder or homicide cases, 145 violent felony cases, 257 nonviolent felony cases, and 757 misdemeanor cases. Jurisdictions have used such caseload Examples of Quality Guidelines and Standards standards in different ways to help ensure that The International Legal Foundation minimum levels of effective • Provide early representation. indigent defense service • Engage in independent fact investigation. • Engage in expert assistance. are being provided. • Engage in sentence mitigation. The most common way is American Bar Association (ABA) Ten Principles of a Public Defense Delivery to determine staffing levels System (and how staff should be • Defense counsel’s workload is controlled to permit the rendering of quality distributed) and to justify representation. budget requests. There • Defense counsel’s ability, training, and experience match the complexity of each case. have also been efforts to • The same attorney continuously represents the client until completion of the case. more rigorously enforce • There is parity between defense counsel and the prosecution with respect to such standards—such as resources and defense counsel is included as an equal partner in the justice system. indigent defense providers ABA Guidelines of Public Defense Related to Excessive Workloads limiting their availability • The Public Defense Provider has a supervision program that continuously monitors the workloads of its lawyers to assure that all essential tasks on behalf of clients are by not taking new cases performed. when maximum caseload • Public defense providers or lawyers file motions asking a court to stop the standards are exceeded assignment of new cases and to withdraw from current cases, as may be appropriate, when workloads are excessive and other adequate alternatives are regularly. In contrast unavailable. to the quality metrics State Bar of California Guidelines on Indigent Defense Services Delivery described above, these Systems methodologies reflect • Indigent defense providers must act zealously to provide services meeting assumptions about the the mandate of being a “reasonably competent attorney acting as a diligent, conscientious advocate.” time needed to provide • There should exist a mechanism whereby the quality of the representation provided effective and quality by indigent defense providers is monitored and accurately assessed, employing representation and do uniform standards. • There should exist, at a minimum, parity between full-time indigent defense providers not actually evaluate and full-time prosecutors in net compensation, as well as benefits or an amount the provision of indigent sufficient to provide benefits of the same value. defense services. 12 LEGISLATIVE ANALYST’S OFFICE AN LAO REPORT Limitations of Available Data There are certain data limitations that offer important context for the comparisons provided in this report regarding indigent defense service levels. Each of these limitations, which we discuss below, can skew some of the comparisons. We note that the workload and staffing data is through 2018-19 as this is the last full fiscal year before the COVID-19 pandemic, which had significant—likely limited term—impacts on the processing of criminal cases, meaning that workload and staffing data from that time period may not accurately reflect ongoing trends in the provision of indigent defense. Spending Data Limitations. First, the spending data for district attorney offices and indigent defense providers is generally pulled from data reported by counties to the state. Our understanding is that most of the reported spending is supported by county funds. However, the state and others (such as federal grants) provide some support—which can differ by county and between district attorney offices and indigent defense—creating differences that are not solely based on county choices. Second, spending on district attorney offices may not represent all prosecutorial resources. For example, certain city attorneys within Los Angeles County generally prosecute misdemeanors and funding for these offices are not captured in the data below. It is unclear how widespread this practice is. Additionally, we note that prosecutorial offices also have access to law enforcement resources as well—such as for the investigation of cases. It is unclear how much is spent on such prosecutorial purposes. Accordingly, the total resources available for prosecution are likely greater than reflected in the available data. Third, we note that some individuals may choose to pay directly for private attorneys for representation instead of making use of the indigent defense system. This means that the amount of funding spent per person or per arrest for indigent defense may be higher than reflected by the data. The extent to which they do likely varies by county. Additionally, some spending on indigent defense providers is used to support noncriminal and/or certain juvenile-related workload (such as mental health civil commitments). This means that the amount of funding directly related to criminal proceedings is lower than reflected by the data. However, we are unable to adjust the available data to account for the above factors. As such, this data reflects a trend to inform the Legislature. Staffing Data Limitations. First, the staffing data that counties provide to the California Department of Justice (DOJ) does not include individuals providing service through contracts or direct payments. Most, notably, it excludes indigent defense attorneys and staff not employed by a public defender office. This limits our staffing comparisons to the 32 out of the 33 counties that chose to operate public defender offices and reported data to DOJ between 2009-10 and 2018-19. (The data excludes Santa Cruz County as it began operating a public defender’s office in 2022. Additionally, we exclude Shasta County since it does not appear any data was reported during this time period.) Second, the staffing data is reported on June 30 of every year and may not fully reflect the number of positions each office is budgeted for. For example, it is unclear whether positions that are temporarily vacant—such as from a retirement—are counted in the data. Third, it appears that agencies may also differ in how they categorize and report their staffing levels—which can then impact the reported staffing ratios. www.lao.ca.gov 13 AN LAO REPORT than spending on indigent defense. One common A third way to compare spending is on a per way used to compare differences in indigent arrest basis, as arrests can be a strong indicator defense and district attorney office spending of potential workload. Despite a statewide is to calculate how much is spent on indigent decrease of approximately 315,000 arrests (or defense as a percentage of how much is spent 23 percent) between 2009-10 and 2018-19, the on district attorney offices. In 2018-19, spending amount spent statewide on district attorney on indigent defense across the state was about offices and indigent defense per arrest increased 55 percent of the amount spent statewide on significantly during this period. The amount spent district attorney offices. In other words, spending on district attorney offices per arrest is nearly on district attorney offices was 82 percent higher double the amount spent on indigent defense. than on indigent defense. As shown in Figure 4, this percentage varies by county, with 27 counties Figure 3 (almost half) reporting that spending on indigent Total Spending on District Attorney defense in 2018-19 was between 40.1 percent Offices and Indigent Defense to 60 percent of the amount spent on district attorney offices. (In Billions) Another way to compare spending is on a per person basis (total county spending compared to $2.5 total county population) to account for differences 2.0 in population. As shown in Figure 5, between 2009-10 and 2018-19, the amount spent statewide District Attorney Offices 1.5 on district attorney offices and indigent defense per person increased, with the amount spent on district 1.0 attorneys being higher. Specifically, spending on Indigent Defense 0.5 district attorney offices was nearly $50 per person in 2018-19—an increase of about $12 per person (or 32 percent) from 2009-10. In contrast, spending 2009-10 10-11 11-12 12-13 13-14 14-15 15-16 16-17 17-18 18-19 on indigent defense was about $27 per person in 2018-19—an increase of about $4 per person (or 20 percent) from 2009-10. As shown in Figure 6, Figure 4 per person spending in 2018-19 Indigent Defense Spending as a varies by county with greater Percentage of District Attorney Spending variance in per person spending on district attorney offices as Number of Counties, 2018-19 compared to indigent defense. This means that the magnitude 30 of the difference in spending on 25 the district attorney office and indigent defense can be much 20 greater in certain counties. Most counties spent around $10 to $50 15 per person on indigent defense. In contrast, per person spending on 10 district attorney offices for more 5 than three-fourths of counties was between $30 to $70. 0-20% 20.1-40% 40.1-60% 60.1-80% 80.1-100% More Than 100% 14 LEGISLATIVE ANALYST’S OFFICE AN LAO REPORT Figure 5 Spending Per Person on District Attorney Offices and Indigent Defense $50 District Attorney Offices Indigent Defense 40 30 20 10 2009-10 2010-11 2011-12 2012-13 2013-14 2014-15 2015-16 2016-17 2017-18 2018-19 Figure 6 Distribution of Spending Per Person on District Attorney Offices and Indigent Defense Number of Counties, 2018-19 30 District Attorney Offices 25 Indigent Defense 20 15 10 5 $0-10 $10.01-20 $20.01-30 $30.01-40 $40.01-50 $50.01-60 $60.01-70 $70.01-80 $80.01-90 $90.01-100 More Than $100 www.lao.ca.gov 15 AN LAO REPORT As shown in Figure 7, nearly $1,900 was spent on offices than indigent defense across counties. district attorney offices per arrest in 2018-19, an This means that the resource differences between increase of nearly $842 per arrest (or 82 percent) the district attorney offices and indigent defense from 2009-10. In contrast, about $1,000 was spent may be significantly greater in certain counties. on indigent defense per arrest in 2018-19, an These trends raise questions regarding whether increase of about $400 per arrest (or 65 percent) defendants across the state are receiving similar from 2009-10. As shown in Figure 8, spending levels of service and are likely to face similar per arrest in 2018-19 varies across counties, with outcomes (such as convictions or the amount of greater variance in per arrest spending on district times spent in jail or prison). attorney offices as compared to indigent defense. Differences in Total Staffing Levels. Staffing This means that the magnitude of the difference in levels can provide a sense of the total number of spending on district attorney offices and indigent people available to work on cases. In 2018-19, defense can be much greater in certain counties. counties reported significantly more employees Per arrest spending on indigent defense by most in district attorney offices than in public defender counties was less than $1,600 per arrest. In offices across the state—10,500 employees contrast, per arrest spending on district attorney compared to 4,305 employees. As shown in offices for almost three-fourths of all counties was Figure 9, in 2018-19, staffing levels in 28 of 32 between $800 to $2,400 per arrest. counties with public defender officers were All three comparisons discussed above between 20.1 percent to 60 percent of those demonstrate greater levels of funding for district of their counterpart district attorney offices. attorney offices than indigent defense. These Staffing levels in the remaining counties were comparisons also show that there is greater between 60.1 percent to 80 percent of those of variation in resource levels for district attorney their counterparts. Figure 7 District Attorney Office and Indigent Defense Spending Per Arrest $2,000 District Attorney Offices 1,800 Indigent Defense 1,600 1,400 1,200 1,000 800 600 400 200 2009-10 2010-11 2011-12 2012-13 2013-14 2014-15 2015-16 2016-17 2017-18 2018-19 16 LEGISLATIVE ANALYST’S OFFICE AN LAO REPORT Figure 8 Distribution of Spending Per Arrest on District Attorney Offices and Indigent Defense Number of Counties, 2018-19 25 District Attorney Offices 20 Indigent Defense 15 10 5 $0-400 $400.01- $800.01- $1,200.01- $1,600.01- $2,000.01- $2,400.01- $2,800.01- $3,200.01- $3,600.01- More Than 800 1,200 1,600 2,000 2,400 2,800 3,200 3,600 4,000 $4,000 Differences in Caseloads. Caseloads can Figure 9 represent the amount of time attorneys have to spend with their clients to explore their cases or Percent of Public Defender Office explain the potential ramifications of certain actions Staffing to District Attorney Staffing (such as accepting a plea deal for certain charges). Number of Counties, 2018-19a This can impact the extent to which defense attorneys can fully litigate a case and whether 16 defendants feel that they have been effectively represented. One method of comparing caseload 14 is to examine the number of arrests to the number of attorneys for both district attorney offices and 12 indigent defense. This is because arrests can be 10 a strong indicator of potential workload given that prosecutors determine whether charges will be 8 filed following arrest and indigent defense counsel 6 is typically appointed within 48 hours of arrest. As shown in Figure 10 on the next page, the 4 number of arrests per attorney in district attorney 2 and public defender offices in the 32 reporting counties declined between 2009-10 an 2018-19, indicating that caseloads were decreasing. 0-20% 20.1-40% 40.1-60% 60.1-80% 80.1-100% However, the number of arrests per attorney in a Includes data for the 32 counties that reported staffing level data. public defender offices were consistently higher across this period. In 2018-19, there were 372 arrests per attorney in public defender offices and 260 arrests per attorney in district attorney offices. www.lao.ca.gov 17 AN LAO REPORT Figure 10 Arrests Per Attorney in District Attorney and Public Defender Officesa District Attorney Offices 500 Public Defender Offices 400 300 200 100 2009-10 2010-11 2011-12 2012-13 2013-14 2014-15 2015-16 2016-17 2017-18 2018-19 a Includes data for the 32 counties that reported staffing level data. Additionally, the number of arrests per attorney a common measurement of effective assistance of varied across counties. As shown in Figure 11, counsel often cited by stakeholders is the number in 2018-19, arrests per attorney in 25 of 32 district of attorneys supported by each of the various attorney offices clustered between 201 to 400. classifications of support staff. Arrests per attorney in public defender offices Figure 12 shows the distribution of the ratio reflected greater variation across counties, with of attorneys to investigators for the 32 counties 24 of 32 public defender offices reporting ranging that reported data for both public defender and between 201 to 500 arrests. This variation suggests district attorney offices. In 24 of the public defender that the difference between caseloads for public offices, there were between 2.1 and 6 attorneys defender and district attorney offices can be much per investigator. In 27 of the district attorney greater in certain counties, which raises questions offices, there were between 1.1 and 4 attorneys regarding whether defendants across the state per investigator. Additionally, Figure 13 on page 20 are receiving similar levels of service and quality shows the distribution of the ratio of attorneys to of service. clerical staff. In 23 of the public defender offices, Differences in Staffing Ratios. Every individual there were between 2.1 and 4 attorneys per clerical receiving indigent defense services is represented staff. In contrast, in 29 of the district attorney by an attorney. The availability of investigators, offices, there were between 1.1 and 3 attorneys per clerks, paralegals, social workers, and other staff clerical staff. In both of the investigator and clerical to support attorneys can reduce the level of work staff ratios, public defender offices generally that must be completed by attorneys as well as had greater ratios than district attorney offices— increase the level of service that is provided. meaning public defenders were assisted by fewer For example, high attorney-to-investigator ratios— support staff. The data also show greater variation meaning each investigator must assist many in the ratio of support staff to attorneys in public attorneys—decreases the likelihood that there are defender offices. This means that the magnitude sufficient investigators to fully examine or collect of the difference in staffing levels between public evidence to support a particular defense. As such, defender and district attorney offices can be much 18 LEGISLATIVE ANALYST’S OFFICE AN LAO REPORT Figure 11 Distribution of Arrests Per Attorney Number of Counties, 2018-19a 16 District Attorney Offices 14 Public Defender Offices 12 10 8 6 4 2 0-100 101-200 201-300 301-400 401-500 501-600 601-700 More Than 700 a Includes data for the 32 counties that reported staffing level data. Figure 12 Distribution of Attorney to Investigator Staffing Ratios Number of Counties, 2018-19a 12 District Attorney Offices 10 Public Defender Offices 8 6 4 2 0 to 1 1.1 to 2 2.1 to 3 3.1 to 4 4.1 to 5 5.1 to 6 6.1 to 7 7.1 to 8 More Than 8 a Includes data for the 32 counties that reported staffing level data. www.lao.ca.gov 19 AN LAO REPORT greater in certain counties. These data again raises juries—that may not be required by the indigent questions about whether defendants across the defense system. On the other hand, some assert state are receiving similar levels of service. that the indigent defense system needs similar Potential Justifications for Spending, or more resources than district attorney offices Caseload, and Staffing Differences. In talking because the system does not have the benefit to stakeholders and reviewing papers on this of significant support from other governmental topic, various opinions were offered to justify the entities—such as law enforcement agencies that differences in resources between district attorney investigate and present cases to district attorney offices and the indigent defense system, as well offices or forensic laboratories that test potential as the differences between counties in the level of evidence. Furthermore, some assert that more resources provided to indigent defense. The lack resources are also potentially necessary for the of statewide, comprehensive, and comparable indigent defense system to fully investigate and data, however, makes it difficult to fully assess effectively represent their clients. For example, these claims. indigent defense investigators and social workers may need to identify mitigating circumstances to On the one hand, some assert that district help with obtaining less severe consequences attorney offices require more resources because for a defendant. Additionally, some assert that they must determine whether or not individuals indigent defense attorneys are responsible should be charged (and at what level) and must for certain workload—such as resentencing engage in various activities to demonstrate that filings, expungements, or mental health civil defendants should be convicted. Additionally, commitments—that requires significantly less or no some assert that certain district attorney offices workload from the district attorney office. support specific programs and activities—such as forensic laboratories or providing advice to grand Figure 13 Distribution of Attorney to Clerical Staff Staffing Ratios Number of Counties, 2018-19a 25 District Attorney Offices 20 Public Defender Offices 15 10 5 0 to 1 1.1 to 2 2.1 to 3 3.1 to 4 4.1 to 5 5.1 to 6 6.1 to 7 7.1 to 8 More Than 8 a Includes data for the 32 counties that reported staffing level data. 20 LEGISLATIVE ANALYST’S OFFICE AN LAO REPORT Since indigent defense workload is driven by agencies can impact the level of resources that are local actions, there can also be major differences available. For example, those counties that prioritize between counties in the levels of resources funding for mental health services, sheriff-operated needed by the system. County priorities and alternative custody programs, or other programs funding decisions impact arresting, charging, and could have greater availability of diversion prosecutorial decisions that the indigent defense programs, collaborative courts, and alternatives system must react to. For example, a District to incarceration. This, in turn, could change how Attorney that sets office policies to limit early indigent defense attorneys represent their clients as settlements of cases could mean that indigent they potentially have more options to address their defense attorneys must invest more time and clients’ cases. In total, this means that the provision resources to more fully investigate and defend of effective indigent defense—and the resources their clients in order to limit incarceration. Similarly, needed—can differ significantly across counties. county priorities and funding decisions in other local RECOMMENDATIONS While there is a lack of consistent data and such as defining the outcomes it desires from an metrics to fully evaluate indigent defense service effective indigent defense system or specifying the levels, the available data raise questions about the types of metrics it would like the group to evaluate effectiveness of existing levels. This is particularly and consider. Alternatively, the Legislature could problematic given the potential that the state could contract with external researchers to help establish be responsible for ensuring the provision of effective specific outcome and performance measures. indigent defense. Below, we recommend steps We further recommend that the metrics reflect the that the Legislature could take to ensure it has state’s definition of what constitutes effective legal the necessary information to determine whether a assistance as well as expectations for meeting those problem exists with indigent defense service levels, goals. For example, the Legislature could determine what type of problem exists, and how to effectively that procedural justice (or the perception of a fair address the problem. process) is equally important as legal effectiveness. Define Appropriate Metrics to More Directly This could then lead to the collection of certain data Measure the Quality of Indigent Defense. Having or metrics, such as data on whether defendants clearly defined metrics would dictate the specific understood what was happening in their case and data that needs to be collected in order to evaluate felt they were fairly represented. Additionally, if existing indigent defense service levels. Defining equity is a key legislative concern, the Legislature such metrics and data collection needs at the could require that metrics be broken out by key statewide level can also ensure that data is collected factors—such as by race, income, and/or type of consistently, which would allow for accurate and offense—in order to enable assessment of whether fair comparisons across the state. Accordingly, and how certain groups are being disproportionately we recommend the Legislature statutorily define impacted by the level of resources supporting the those metrics it believes are necessary to more indigent defense system and how indigent services directly evaluate the quality of indigent defense are provided. This, in turn, could help identify areas statewide. To assist with this, the Legislature where additional legislative action is warranted. could direct OSPD to convene a working group Require Counties Collect and Report Data. with key stakeholders (such as public defender After identifying what data should be collected to offices and community-based organizations) to directly measure indigent defense service levels, we make recommendations on appropriate metrics. recommend the Legislature require counties collect The Legislature could also provide guidance to and report that data to OSPD. Such statewide the working group to shape the scope of its work, reporting is critical to ensure the state has the www.lao.ca.gov 21 AN LAO REPORT necessary information to conduct oversight of how were necessary, the data could help the Legislature effectively indigent defense services are provided determine where and how to target such additional across the state. As part of this requirement, the resources to maximize their impact. state or OSPD should establish clear definitions If the state is interested in acting in this area, for how to track and report data (such as ensuring it has various options depending on its goals. that all jurisdictions count the number of cases in Examples of such options are provided below. the same way). This would provide the state with These are not mutually exclusive, which means that comprehensive data that can be compared across multiple actions could be taken. counties. This, in turn, would provide a much clearer • Establishing Statewide Standards. picture of whether indigent defense representation The Legislature could establish and require is resourced or provided in a manner that ensures counties to meet certain statewide standards effective assistance is being provided across the or authorize another entity (such as OSPD) state. Such data could also help the state better to do so. These standards could focus on understand some of the underlying reasons for different areas of the indigent defense system the differences, where improvements can be and can differ in their specificity. Such made, and where policy changes or additional standards could include minimum funding resources should be targeted. We note that or staffing standards—such as requiring such data could also help counties manage and that prosecutors and indigent defense improve how they operate their indigent defense providers receive similar levels of funding or systems. For example, such data could indicate attorney-to-investigator ratios. Such standards that structuring and funding a public defender office could also include maximum caseloads based in a particular way could generate more effective on case types as well as minimum outcome or representation at a comparatively lower cost. quality standards. We acknowledge that state funding could be • Grants. Grants could be provided to needed to collect and report such data, which we support start-up costs for new technology estimate could reach into the low tens of millions of or new programs, ongoing costs for specific dollars annually. However, we believe that it is critical activities (such as having indigent defense for the state to receive accurate and comprehensive representation prior to arraignment) or data in order to determine whether federal and specific costs (such as social workers), or to state constitutional requirements are being met. test or further expand innovative practices or Moreover, providing resources specifically for programs (such as holistic defense teams). obtaining such data increases the likelihood that it Grants can also be provided as incentives is collected accurately and consistently. Such data to improve performance or outcomes or to is important to help inform future policy decisions, increase local spending (such as providing such as identifying any inequities in, as well as the a state match for local spending above a appropriate level of future resources for, the indigent certain level). defense system. • Further Expansion of OSPD. As discussed Use Data to Determine Future Legislative above, the state recently took action to expand Action. The data collected above would help the OSPD’s indigent defense responsibilities. Legislature refine its specific definitions and goals After reviewing how OSPD has used its existing for effective indigent defense levels as well as expanded authority, the state could further what actions are needed to take to achieve those expand OSPD’s authority and responsibilities goals. This could include the Legislature taking a and provide it with additional resources. stronger role to mitigate any negative differences in This could allow OSPD to, for example, the provision of indigent defense services across provide further statewide trainings, conduct the state. Such actions would dictate whether, and oversight of indigent defense providers and how much, additional state resources could be intervene where necessary, and/or provide needed to support indigent defense. To the extent representation at the local level. the Legislature determined that additional resources 22 LEGISLATIVE ANALYST’S OFFICE AN LAO REPORT • Evaluations. The Legislature could contract individual—has been implemented in certain for evaluations to assess existing or new jurisdictions. Evaluations of these models, indigent defense practices. These could help as implemented in California, could help the Legislature determine the most effective identify their benefits and costs. This, in turn, and equitable practices for providing indigent could help the Legislature determine whether defense services. For example, certain it would like to encourage or require that counties operate holistic defense models while certain practices are implemented statewide. others do not. Others operate the model in Similarly, such evaluations could help counties different ways. Additionally, a new participatory assess and improve how they provide defense model—in which the community indigent defense. actively participates in the defense of an CONCLUSION Indigent criminal defendants have the service levels. More information would be necessary constitutional right to effective assistance of counsel for a comprehensive and fair assessment. As such, provided by the government. California currently we recommend the Legislature define the metrics lacks comprehensive and accurate data directly necessary to more directly measure the quality of measuring the effectiveness of the state’s indigent indigent defense currently provided; require counties defense system. However, analysis of limited data collect and report the necessary data; and, finally, raises questions about existing indigent defense use that data to guide future legislative action. www.lao.ca.gov 23 AN LAO REPORT 24 LEGISLATIVE ANALYST’S OFFICE AN LAO REPORT www.lao.ca.gov 25 AN LAO REPORT LAO PUBLICATIONS This report was prepared by Anita Lee, and reviewed by Drew Soderborg and Anthony Simbol. The Legislative Analyst’s Office (LAO) is a nonpartisan office that provides fiscal and policy information and advice to the Legislature. To request publications call (916) 445-4656. This report and others, as well as an e-mail subscription service, are available on the LAO’s website at www.lao.ca.gov. The LAO is located at 925 L Street, Suite 1000, Sacramento, California 95814. 26 LEGISLATIVE ANALYST’S OFFICE