Problem-solving defenders in the community: Expanding the conceptual and institutional boundaries of providing counsel to the poor

INTRODUCTION

"Community justice" and "problem solving" resonate well in today's political and academic debates, but the bottom line is that the community has not lived up to its commitment to community justice until it fully understands and supports the role of public defense.6

The rich and the poor are treated differently in American courts, though it is the public commitment of the courts to treat them the same. The argument for a more generous provision follows from that commitment. If justice is to be provided at all, it must be provided equally for all accused citizens without regard to their wealth .... Legal aid raises no theoretical problems because the institutional structures for providing it already exist, and what is at stake is only the readiness of the community to live up to the logic of its own institutions.7

To achieve this vision of equitable or democratic justice, some public defense leaders have adopted consensus-building procedures, such as team representation, to represent the interests of their clients and their families more effectively. Other indigent defense service providers have expanded their conceptions of defense lawyering by initiating grass-roots community service initiatives; while others have re-arranged pretrial procedures or redefined their institutional mission.

This Article explores an expanded conception of what it means to provide counsel to the criminally accused. As this expanded model is mapped out, however, it is important to recognize the model is grounded in the community defense movement of the 1970s. In that era, there was support for social service collaboration, problem-solving activities, and community service, but these efforts appear to have lost momentum.9 Professor Randy Stone, director the of University of Chicago's Legal Aid Clinic, reminds defenders of past efforts to further community justice and problem solving initiatives:

A criminal case is closed, but the criminal defense team continues to help its client find an apartment, secure partial funding for college, and find a part-time job after he completes an in-patient drug treatment program.15

In 1989, a California public defender asks homeless veterans about their problems. He hears hundreds of veterans describe their fear of going to court to deal with old misdemeanor warrants. It is a vicious cycle. Outstanding warrants prevent the use of social services, which impedes access to employment and housing. An innovative defender convinces a judge and prosecutor to hold court at the homeless shelter, where they process several thousand cases annually with great success. Everyone wins - the homeless have a better chance at community reintegration by resolving their cases, and court administrators reduce backlogs. Today, the Homeless Court started by a public defender serves as a model for other jurisdictions interested in problem solving for the homeless.16

A public defender and staff members lobby alongside a victim's rights group seeking legislative support for alternatives to incarceration and work release. These seemingly adverse parties both want more restitution and communityservice programs to help victims, offenders, and communities.17

In expanding traditional institutional arrangements for providing counsel to the poor, these public interest lawyers have not abandoned their role as lawyers able to engage in traditional adversarial or trial-centered representation. Rather, by building on their zealous advocacy skills, they build community connections by leveraging the "crisis moment" of a pending criminal case and seizing the opportunity to work closely with social workers and key community members in order to resolve a client's underlying problems.

I. Two MOVEMENTS IN CRIMINAL JUSTICE: COMMUNITY JUSTICE AND PROBLEM-SOLVING

A. COMMUNITY JUSTICE

PDs and other community activists have for a long time seen the community as the central resource to resolve public safety problems and social ills.28 Law enforcement has shifted their attention to identify shared goals with community members in crime-ridden communities and is able to see these communities as sources of solutions not just problems. Many law enforcement leaders now exhibit a willingness to listen actively to community concerns.

From the defense perspective, those who engage in community justice movements try to identify concerns of individual clients and problems that pervade a particular group they represent. Community justice sometimes means preventing government abuse such as police harassment or police brutality, and working with community members to hold the government accountable.42 Community justice plays out in both the criminal and civil context; for instance, ensuring that needy communities have access to government services and benefits that other communities enjoy. Thus, community justice means that communities have a voice or some impact on the way the government acts upon and within a community. Defenders are in a unique position to broker information-sharing between groups. As Bob Boruchowitz, Director of the King County Public Defender Association in Seattle, said, "The defenders are in a unique position to articulate to the government the concerns of the clients, and to articulate to the clients the concerns of the government, and be a technical advisor to both sides."43 This, however, does not mean that the government is always willing to listen.

B. PROBLEM-SOLVING LAWYERING

A phenomenon related to but separate from the community justice movement is that of "problem-solving." Problem-solving skills courses are gaining popularity in professional circles and law schools.48 Bar associations nationwide are holding seminars and discussing ways to redefine practitioners' role as problem solvers.49 In criminal justice, it has been said that problem-solving first began in policing circles.50 Yet, effective criminal defense lawyers for the indigent began practicing law and working to solve clients' problems long before problemsolving rhetoric became popular in law enforcement circles.51

Some prosecutors no longer see themselves as case processors but as strategic thinkers explicitly adopting a problem-solving role.53 These problem-solving federal prosecutors envision their role as one piece of a larger puzzle that preserves their primary function, and build out from there to collaborate with non-law enforcement agencies to intervene early in resolving specific social problems. "This new perspective shifts the prosecutor's ambit of concern from any particular case or cases to the impact that a group of cases have in either a particular geographic area or particular subject matter area."54 These prosecutors see the prosecutorial role more broadly and try to match the complexity of connections in the criminal world with remedies that cut-across the traditional demarcations of legal and organizational responses.55 Problem solving involves gathering information, making strategic connections, and changing the culture within an office to define a broader role for the attorneys and staff. Informationgathering and collaboration is key.56 For prosecutors, this role as coordinator among non-traditional groups to address non-law enforcement aspects of a problem does not come easily.57

Problem-solving efforts further community justice as a whole. When prosecutors, judges, police, probation officers, and defenders coordinate to address the underlying problems facing individuals charged with crimes, the collective impact of helping these individuals in dealing with root causes will be increased public safety and reduced fear for the community at large. In time, individual problem-solving can effect systemic changes. For example, problem-solving courts are said "to improve case outcomes for parties and systemic outcomes for the community at large."62

II. COMMUNITY JUSTICE AND PROBLEM-SOLVING LAWYERING IN THE INDIGENT DEFENSE WORLD

To contextualize the problem-solving and community justice initiatives in indigent defense, the next section explains how the traditional right to defense counsel was conceived. This is followed by descriptions of how defender systems are organized and the major changes in criminal justice that affect the defense function today.

A. BACKGROUND OF THE RIGHT TO COUNSEL

B. ORGANIZATION OF DEFENDER SERVICES

The most typical way defenders are organized is through public defender ("PD") offices with full-time attorneys and staff in statewide or local offices.69 PD offices are either public entities or private, non-profit organizations. But not every state has a system that includes a PD office.70 A second popular method of providing the right to counsel is through case-assignment to private counsel, typically by local judges who select lawyers from the private bar.71 A third model is a contract system under which a state or local authority enters into a contract between an individual lawyer or group of lawyers (non-profits or local bar) to represent a specific number of cases within a negotiated fee structure. The contracts are usually awarded to the lowest bidder, which has caused serious ethical concerns in light of case overloads and lawyer incompetency.72 Most state indigent defense systems are a combination of these models - a "hybrid" defender system. A hybrid system provides a state with, for example, PD offices in populated urban areas and an assigned counsel system in more rural areas. The DOJ determined in 1966 that the most prevalent hybrid was a combination of assigned counsel with PD offices.73 (The discussion that follows below, describing a model of problem-solving defenders in the community, overwhelmingly reflects the outreach activities operated by PD offices, not assigned counsel or contract lawyers.)

C. FORCES AFFECTING THE DEFENSE ROLE

The nature of the problems indigent clients are bringing to their lawyers' doors is complex and demands more sophisticated legal and social service advice. Most of these clients cycle through their lawyers' offices as a result of deeper social problems and, most significantly, the failure of other social services to address their problems that include unemployment, mental health, addiction, and alcohol abuse.85 Nevertheless, most defenders want to help their clients in significant ways but are neither trained nor equipped to address adequately social-service issues. They recognize the need to bolster or expand problem-solving resources and community-outreach activities to assist clients before, during, and after the traditional adversarial trial process. Consequently, effective defenders look for creative alternatives and reach out to other professionals like social workers and mental health experts to help their clients.

The criminal justice system, and the defense function in particular, have become the catch-basin for the breakdown of social services inside communities. More public-defender clients are in need of effective treatment programs, and these clients also face the serious risk of longer sentences if they proceed to trial under the traditional model. Cumulatively, all these changes in criminal justice laws and social policies push criminal defense lawyers to confront clients' problems beyond simply the facts of the pending case. Today, defense leaders continue to build upon their long history as community defenders by engaging in creative collaborations to address the negative impact visited upon their client community.

III. A VISUAL MODEL OF THE EXPANDED INDIGENT DEFENSE FUNCTION

Defender offices have begun to institutionalize this problem-solving and community-oriented work. Their focus has shifted to become more active in the democratic process by increasing their political involvement, consensus-building with other groups that may be unlikely allies, and trying to secure a place for the defender voice at policy-making tables.98 They engage in direct lobbying on specific criminal justice issues and organize public education campaigns.99 As a last resort, some defender operations have initiated reform litigation to secure more institutional resources for public defense such as funds to hire more lawyers, investigators, and staff. 100 All of this activity reflects several dimensions to the legal function.

The following model (Figure 1) is an aid to visualize how problem-solving defenders operate in many circles while still preserving core advocacy skills. They address clients' underlying problems by working with social workers and engage in multi-disciplinary practices. Some defenders see their role in one dimension, the core of which is trial advocacy. Other defense service providers would like to engage in more of these activities on the outer edge but are severely limited by their resource capacity and lack of political support. Other defenders have a chameleon-like role as they move in and out of each of these areas depending on the political climate or available resources.101 Therefore, the lines dividing each of the model's dimensions are broken in order to represent how defense lawyers and their staff move in and out of the different areas of activity.

The remainder of this Article describes each of the models' different dimensions of problem-solving lawyering and community service that indigent defense lawyers are engaged in today. For purposes of clarity, whole-client representation (i.e., problem-solving lawyering), defender collaboration with criminal justice stakeholders, and community-oriented defense initiatives will be discussed separately in the remaining sections even though many defender offices blend these activities. The final part describes three offices that have formally institutionalized each of the dimensions of this triumvirate model.

IV.A VIEW OF PROBLEM-SOLVING COUNSELING AND COMMUNITY OUTREACH BY SOME MODERN DEFENDERS

For our clients, the criminal problems are the least of their problems. They have many other problems. Attorneys are lawyers and counselors. We place an emphasis on counseling clients along with litigation strategies. In the counseling role, whether convicted or not, we owe our clients some services. And beyond that, we owe their family some services. So we take a very broad view of what it means to be a legal counselor. 102

A. WHOLE-CLIENT REPRESENTATION OR HOLISTIC ADVOCACY

Broadly interpreting the role of "counsel" is a distinguishing mark of community-oriented, problem-solving defenders. To counsel means much more than investigation, trial preparation, or plea-bargaining. Counseling goes well beyond fact-specific courtroom advocacy because the whole client condition is crucial, not just case resolution. Counseling or coaching in this way requires empathy and is a skill that defenders can develop. 103 Social workers and other experts who work closely with defense lawyers often teach the lawyers interviewing and counseling skills.104 In a multi-disciplinary practice, defenders work regularly with trained social workers who assist in problem-solving for the defense at all stages from initial client interviews to securing appropriate sentencing alternatives. In the problem-solving mode, a defender views a case in the context of a client's life and larger community problems that resulted in criminal justice intervention.

Family can sometimes play a positive role in helping client's adjust behavior or help with designing an effective case disposition for which they can provide emotional support. Defenders and courthouse denizens are noticing how more family member fill courtrooms and hallways in city courthouses. In New York City, for example, there are reports that the stream of traffic through the lower courts is made-up of mostly families, offenders, and defense lawyers say they have seen a different type of family arrive in recent years as the city's quality-of-life crackdown continues. More working-class families who have never before had brushes with the law arrive in shock after a loved one is arrested and jailed overnight for a minor offense, like driving with a suspended license. 107 Not all these offenders can be represented by a lawyer who has an expanded notion of what it means to provide counsel. In an ideal defender world with adequate resources to represent clients in a variety of ways, an array of problem-solving strategies would extend to counseling a client, assisting with educational or employment needs, and counseling the family on government assistance and other programs available to them. To be effective in all these dimensions lawyers have to build strong coalitions with other professionals.

1. HOLISTIC ADVOCATES RELY ON NON-LAWYERS

We think that everyone can be a Legal Assistant with the right training and support. We have had newspaper reporters, nuns, bartenders, college professors, high school drop-outs and homemakers work in our office as Legal Assistants . . . . Our Public Defenders are pretty aggressive about bringing Outreach Coordinators and Legal Assistants to testify at sentencing about effective alternatives available for our clients. They create lists of programs, work to develop programs, and spend lots of time in meetings with community members. One of the most important links is outreach to religious communities who provide much support. We find mentors from local churches to work with our clients, which judges and court administrators find appealing.109

2. DEFENDERS PROBLEM SOLVE FOR CLIENTS AND COMMUNITIES THROUGH ANGER MANAGEMENT AND ANTI-VIOLENCE INITIATIVES

Innovative indigent defense service providers are thinking strategically about ways to improve public safety by reducing recidivism and community victimization. The Miami-Dade County, Florida Public Defender's Office, for example, has been running a successful anti-violence initiative ("AVI") with defendercommunity collaborations designed to help clients lead law-abiding lives.114 The initiative, which has become a model for other public defense operations, continually develops diversion programs, sentencing options, coalitions with other social service organizations, and expands access to effective treatment for clients.115 AVI improves public safety and reduces the number of victims in the community by expanding the problem-solving role of PDs.116 The Dade County program is based on a public health model that incorporates social services and treatment programs into client representation.117 Such an approach restores balance and improves the decision-making of an accused and sometimes extends to their families.118

It is important to emphasize that this focus on community safety is not done at the expense of clients' defense, but rather also considers long-term benefits to the alleged offender. Indeed, this defender representation model furthers restorative justice ends. A client who receives substantial help addressing the root of his or her problems is less likely to be a repeat offender or to commit a more serious offense; and most importantly, has a much better chance of restoring positive relationships within his or her community. Innovative defenders are not abandoning Gideon or their constitutional obligations to provide zealous representation; rather, they understand that grass-roots community support is vital in dealing with issues of justice as well as individualized defense.

3. OUTER BOUNDARIES OF HOLISTIC REPRESENTATION: HELPING OFFENDERS GET BACK TO WORK

4. CLINICS TEACH MULTI-DISCIPLINARY PRACTICE: THE LAWYER-SOCIAL WORKER TEAM APPROACH TO PROBLEM SOLVING

I consult with students on cases where adult or adolescent clients may exhibit symptoms of mental illness, substance abuse, school adjustment problems, family crises, or where there is need for other concrete services such as housing, food, or other concrete services. Students are often overwhelmed with the complexity of the problems their clients face, including psychological, medical, or situational difficulties, many of which impact on the legal case. Having social worker on staff - someone who is familiar with addressing such difficulties and who is available to assist students and clients alike in developing a strategy to cope with them - has been an essential element of our work here at Cjl. 141

In short, all of the holistic advocacy approaches described above rely on social service professionals working closely with lawyers to advocate on behalf of clients in every stage of the criminal justice process. It is very difficult to change the culture inside a traditional defender office,145 but these multi-disciplinary practices have deeply strengthened relationships between lawyers, social workers, and other social service actors. The internet has become a source of connections and support for this multi-disciplinary bridge-building and information-sharing.146 All of these personal links that expand the defense role and build consensus with new partners advance community justice. Problem-solving collaborations that spread into all areas of the criminal justice system impact perceptions of the defense function. This, in turn, encourages support for other collaborative experiments with unexpected allies or unlikely partners in criminal justice.

B. DEFENDER COLLABORATION WITH OTHER CRIMINAL JUSTICE STAKEHOLDERS

The next dimension of the conceptual model [see Figure 1] centers around the collaborative efforts of PDs and assigned counsel with other criminal justice stakeholders. Nontraditional coalitions have been formed to start programs or make legislative successes happen.

1. DEFENDER COLLABORATIONS: PUBLIC POLICY MAKING, LOBBYING, AND LAWMAKING ON JUSTICE ISSUES

Defender leaders are learning how to communicate more effectively with messages that can be heard in policy-making circles. Their goal is to be more effective at communicating their role both inside and outside the criminal justice system, and they are therefore learning effective communication skills.150 Developments in state and federal legislation, from mental health laws to three strikes laws, has had a negative effect upon their clients and their families, so defenders increasingly acknowledge that to be effective advocates for their clients and their communities they need to become proactive speakers in the political process. Engaging legislators and other criminal justice policy makers is a necessity because their decisions affect the communities defenders represent. Because defenders understand these communities and have special links to the problems facing individuals and families, the defender message can be powerful once they defenders to articulate their message and become part of the political process they once avoided.

2. JUDICIAL COLLABORATIONS: DEFENDERS IN PROBLEM-SOLVING COURTS

Today's model of problem-solving courts began with the creation of the Dade County Florida Drug Court and has now spread nationwide.165 The Portland Drug Court opened in August of 1991 as the third drug treatment court in the country, and it remains one of the most successful courts in operation.166 It began because judges, prosecutors, and defenders were fed up with the same people constantly rotating through the traditional court. James Hennings, Executive Director of the Metropolitan Public Defenders Office in Portland said, "I had one client that went through eight times in one year."167 In spite of this revolvingdoor justice, Hennings and other PDs were reluctant at first to participate in the creation of the Portland drug court.

I had to be dragged in kicking and screaming to participate in the drug court .... I can say the drug court is going really well for the past nine years, and it is the best thing I have ever done professionally. Six-hundred and fifty people a year enter our drug court and we know we have an impact on people's lives. About one-third graduate, one-third fail, and one-third disappear; but, even for those that fail and go to prison, we have seen a marked decrease in drug use and level of criminality.168

Another unique problem-solving court began when the San Diego Public Defender office took the lead in creating the nation's first Homeless Court. 73 The goal was to help resolve criminal justice problems that exacerbated other problems for the homeless.174 These defenders reach out to the homeless by going into shelters to conduct interviews and then represent the homeless in court proceedings that are held inside the shelters.175 In the homeless court, problems are rarely too small or insignificant for the court to address if a client cares about them. Defender, judge and prosecutor dispose of low-grade warrants that keep these men and women from progressing to jobs. 176 This successful program aids court administration and assists people who fear entering the courthouse.

The problem-solving courts that have been the most politically and institutionally acceptable have involved defenders in the design and operation, yet each new court places new demands on defense counsel. These specialized courts or problem-solving institutions demand that defenders broaden their counseling skills as well as develop their negotiation skills, especially when enlisting the help of other professional organizations in the community.

C. COMMUNITY OUTREACH, COMMUNITY SERVICE, COMMUNITY EDUCATION

An oft-overlooked source of power that helps defenders move into these other dimensions of the model is their connections to the community. PDs across the nation have had longstanding relationships with clients, their families, religious leaders and other community leaders. James Hingeley, the Public Defender for Albemarle County and the City of Charlottesville in Virginia states that his office stays connected to the community through the Citizens Advisory Committee. This Committee is unique in Virginia because there is government representation and other stakeholders who serve on the committee. 177

Recall Lenny Noisette's words: "For every member of the community who is a victim of crime, there is an accused person who has a family in the community."178 These longstanding connections to communities and intimate knowledge of the problems that plague them are valuable sources of information and creative possibilities. Defenders must relay information to stakeholders who are setting policies that affect communities. Indeed, it makes sense for judges, police, and prosecutors to invite them to the policy-making tables. Defenders have special assets to provide, which include their community connections to other voices perhaps not often heard, alternative perspectives on the justice system, and special lines of communication that are different from police or prosecutors' perspectives.179 The defender links within a community should be tapped in order to bolster the positive aspects of these new community justice and problemsolving efforts and to help eliminate the bad. In local coalition-building efforts, defenders have also found that faith-based communities and religious leaders carry considerable influence and are often willing to work on collaborative projects with police, prosecutors, and defenders to implement programs that help their communities.180

1. DEFENDERs ENGAGE IN PUBLIC EDUCATION

2. DEFENDERS ENGAGE IN COMMUNITY OUTREACH

The Neighborhood Defender Service of Harlem's ("NDS") lawyers and staff are highly respected for their ability to serve clients, families and the larger community. In appropriate circumstances they also collaborate with other criminal justice stakeholders to provide legal representation.191 In essence, they seek to preserve the community's social fabric that they feel is important to legal defense work. They value the link between individual offenders, their families and the larger community, an innovative attitude for indigent defense providers:

Similarly, those juvenile defender offices that serve their clients zealously during the case proceedings and beyond traditional conceptions of providing counsel recognize the importance of linking their work to families and community. The Juvenile Justice Project of Louisiana ("JJPL") confirms national studies that indicate that the most effective delinquency prevention programs are community-based. JJPL leaders recognize the strengths of the children, their families and their potential:

We have met with families and community leaders who are infinitely better suited to care for their children than is the state, Our project seeks to establish a new paradigm for the representation of juveniles accused of crime, one that works with the child's family and community for direction and guidance on how that child is represented .... By establishing clear lines of communication with communities, advocates can help communities organize on behalf of their children. The network of groups such as churches and neighborhood organizations, as well as individuals and institutions, [is what defenders build] upon to provide support and services for the children and their families. 193

V DEFENDER INSTITUTIONS ORGANIZED AROUND ZEALOUS ADVOCACY, PROBLEM-SOLVING, AND COMMUNITY JUSTICE

To complete the picture of community-oriented, problem-solving defenders, this section describes three public defense organizations. Each institutionalizes the dimensions presented in the conceptual model: zealous advocacy of a client's agenda, holistic or whole-client advocacy, defender collaboration with other criminal justice stakeholders, and community service and coalition-building activities. The Neighborhood Defender Service of Harlem, the Bronx Defenders, and the Public Defenders Service of Washington, D.C. ("PDS") are each innovative organizations designed to operate effectively in each of these dimensions. Their mission statements adopt a broad conception of the defense function. Physically, these offices are not located in the courthouses but in the communities they serve. At the core of their institutional mission these defender institutions provide effective courtroom representation. As problem-solvers, these defense lawyers expand the institutional boundaries and move away from the "business as usual" mentality by emphasizing interdisciplinary representation and community outreach. Their uniqueness derives from lawyer and staff teamwork that places a priority on client counseling, social work, local education programs, and helping offenders find employment opportunities. They are indeed problem-solvers for individuals, families, and the local community.

A. NEIGHBORHOOD DEFENDER SERVICE OF HARLEM

B. THE BRONX DEFENDERS

The over-arching philosophy of the office is that those charged with crimes "primarily define their experience of going through the criminal justice system by the relationship with defense lawyers. Emotional stability and self-image are impacted greatly by the way their public defender treats them."215 This means that the defenders are working to help restore dignity inside a community where it has been lost. The Bronx Defenders make every effort to treat clients, families, and concerned friends from the surrounding community with dignity throughout the criminal process and beyond. Although the numbers change at times there is an average of twenty-four staff lawyers and seven client advocates (around four full-time social workers and three M.S.W. interns) who are sensitized to the importance of helping in many aspects of a client's life and of communicating with their families.

C. PUBLIC DEFENDER SERVICE OF WASHINGTON, D.C.

D. CONSEQUENCES OF EXPANDING BOUNDARIES IN THE DEFENDER MODEL

Institutionalizing this work is important, but defenders must think carefully about the political risks, the serious lack of data collected to measure the success of these efforts, and the ethical boundaries of engaging in this innovative work that extends the notion of advocacy. Expanding the notion of zealous advocacy to include training lawyers in problem solving skills, holistic advocacy through multidisciplinary practices, and community outreach requires hiring different types of lawyers with different skill-sets.

1. HIRING CONSIDERATIONS

Defender managers, therefore, are now thinking about hiring a balanced group of defense lawyers with different skill sets.224 In organizing defender institutions, leaders must think about the actual practice of defense work, since the overwhelming number of cases are negotiated 225 and there is a meteoric rise in the number of problem-solving courts demanding specialized expertise (e.g., drugs, domestic violence, mental health, prisoner re-entry, juveniles). To respond to the changing legal practice that does not result in trials a large majority of the time, PD offices need to hire lawyers who have different skills for different judicial and non-judicial settings. Similar to hospital staffs, PD offices now need an array of specialists to make the whole institution effective and dynamic. If defense lawyers are forced into working in the community when they feel most comfortable in an adversarial trial setting, the results will be harmful to the clients and communities involved. Community relations could sour quickly with the wrong defender engaged in community service. Defenders themselves will quit if their jobs turn out to be very different than what they had anticipated. To reduce the risks associated with expanding the boundaries, defender managers must also look beyond their own office hiring policies and case processing needs to political environment as well.

2. THE NEED FOR DATA COLLECTION AND MEASURING OUTCOMES

first to identify agreed-upon yardsticks for what it means to provide effective assistance of counsel. Second, we need to test these new ideas against these yardsticks . . . . The biggest problem is the lack of data and our ability to provide a litmus test or measurements to show that all these defender activities are working, and therefore should be supported.227

Indeed, there is very little data, and there is no consensus on whether all the dimensions described in the model actually help individual clients pursue their own agenda. Traditional yardsticks of success include not-guilty verdicts, the imposition of the least restrictions on client's liberty, and perhaps diversion rates and fewer convictions. In reconceptualizing the defense function broadly, can success be measured in terms of reduced recidivism rates, the length of time a client stays dry, the length of time a client keeps a job, family stability, a license restored, or a safer community? Do these factors reflect successful representation by public defense lawyers, and if so, can they be measured? These are questions that need to be addressed if this model is to build momentum.

As a starting point, problem-solving defenders in communities must document their successes and open their doors to social science researchers or others who will assist in measuring outcomes of this innovative problem solving and community-oriented work.228 Building political support is critical to defenders' efforts to institutionalize their innovative community service and problemsolving enterprises. This requires continued collaborations with resourceful judges, police, and prosecutors who also engage in similar community-oriented, problem-solving criminal justice innovations. Only then will this expanded vision of the right to counsel thrive.

3. ETHICAL CONUNDRUMS

if you are clear on your vision, your mission, your values, then you weigh everything you do when you're in these coalitions. You can keep yourself from co-opting and you have to be very clear and straight with all members of the coalition of where you are at all times."229

The model of innovative community-based initiatives and problem-solving efforts to help individual clients should not be interpreted as undermining the most essential functions of defenders, which are to fully protect an accused's interests and to hold the government accountable in that process.

CONCLUSION

Defenders have traditionally bolstered social reform efforts in communities from inside and outside criminal justice institutions. Today, there are many public defender offices, and some assigned counsel, who are doing this effectively. They operate in three general dimensions. First, through zealous whole-client representation. Second, as equal and energetic participants in the criminal justice system. Third, through more active community engagement. Recognizing these different dimensions of the public defense function opens up the possibility for defenders to engage criminal justice stakeholders and consensus-build in different parts of the community. With a clearer conceptual map one can begin to assess the real value of community justice initiatives and problem-solving defender activities.

If, however, only a few pockets of people in the system are helped by this model then will be important to find out whether collectively these activities are draining energy from the core function of the public defense lawyer, which is to provide effective assistance of counsel in the criminal courts. This highlights the need to identify the actual impact on individuals and communities of these expanded public defense operations. Empirical studies should be supported by all stakeholders and community leaders for "[w]hat is at stake is only the readiness of the community to live up to the logic of its own institutions."231

Carr CLARKE*

* Lecturer and Research Associate with John F. Kennedy School of Government's Program in Criminal Justice Policy and Management. S.J.D. Harvard Law School, L.L.M. Georgetown University Law Center, J.D. Catholic University School of Law. The Author is currently the Project Manager of the Executive Session on Public Defense ("ESPD") and Assistant to the Director, Graduate Program at Harvard Law School. The Author would like to extend her appreciation for reading and commenting on earlier drafts to: Jim Neuhard, Cliff Keenan, Peter Friedman, Adele Bernhard, Lawrence Friedman, Roger Conner, Dori Spivak, Maximo Langer, Robin Steinberg, Lenny Noisette, David Freedman, Robbie Frandsen and Charles Ogletree. Special thanks to Nancy Gist for her ongoing support.

Copyright Georgetown University Law Center Winter 2001
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