AMERICAN BAR ASSOCIATION
CRIMINAL JUSTICE SECTION
COMMISSION ON IMMIGRATION
COMMISSION ON HOMELESSNESS AND POVERTY
REPORT TO THE HOUSE OF DELEGATES
1 RESOLVED, That the American Bar Association urges defender organizations, and
2 criminal defense lawyers to:
4 1) Establish and facilitate criminal defense lawyers’ linkages and collaborations with civil
5 practitioners, civil legal services organizations, social service program providers and other non
6 lawyer professionals who can serve, or assist in serving, clients in criminal cases with civil legal
7 and non-legal problems related to their criminal cases, including the hiring of such professionals
8 as experts, or where infrastructure allows, as staff;
10 2) Authorize and encourage criminal defense lawyers to provide re-entry and reintegration
11 services to clients in criminal cases including expungement, reestablishment of rights and
12 certificates of reliefs of civil disabilities; and
14 3) Create and implement training programs, tools and resources for criminal defense lawyers
15 and their staff regarding how best to serve clients with civil legal and non-legal problems related
16 to their criminal cases.
18 FURTHER RESOLVED, That the American Bar Association urges governments, foundations, and other
19 funders of legal services to support, with increased funding, defenders in their efforts to effectively
20 address clients’ inter-related criminal, civil and non-legal problems.
At the end of 2010, the U.S. prison population totaled over 1.6 million, with 703,798 new
admissions in 2010.1 In 2010, out of the individuals sent to prison, 227,311 of them were parole
violators returning to prison for either violating conditions of release or for new crimes.2 It is
estimated that out of the 750,000 incarcerated men and women that were released in 2011,
approximately 2/3 of them will likely be rearrested within three years.3 Effective programs can
reduce the number of repeat offenders by 100,000.4
Why are two out of every three persons rearrested within three years?5 If formerly
incarcerated persons cannot find work, shelter, or help, they are much more likely to be caught in
a recurring cycle of crime.6 Numerous social and economic disadvantages characterize the vast
majority of individuals who are released from prison, including poor educational attainment and
employment histories, poor physical and mental health, and alcohol and other drug misuse.7 A
2011 study published by the National Poverty Center noted considerable struggle by those
returning from prison to meet even minimal needs for shelter and food; sustained economic
security was rarely achieved absent either strong social support or access to long-term public
benefits.8 Even short periods of incarceration can lead to loss of housing and material
possessions, complicate applications for public benefits, and result in job loss.9 Couple this with
the climbing number of so-called “collateral” consequences attached to a mere arrest and it is
easy to see how the detrimental cycle of penalties has developed into a national crisis. Lack of
reintegration services and community substance abuse programs intensifies this crisis. It is well
known that a majority of people who are incarcerated have extensive substance use histories
and/or mental illness.10 A 2011 survey published by the National Institute of Justice concluded,
“[t]he number of probationers and parolees with mental or substance use disorders whose
treatment needs are not being met by community treatment and supportive services is significant.
As a result, they are placed at greater risk for parole or probation failure leading to re-
Paul Guerino, et. al., U.S. Dep’t of Justice, Prisoners in 2010, BJS Bulletin, at 1,6 (Dec.2011), available at:
Paul Guerino, et. al., U.S. Dep’t of Justice, Prisoners in 2010, BJS Bulletin, at 6 (Dec.2011), available at:
Joan Petersilia, Beyond the Prison Bubble, FED. PROB. 2, 2-3 (2011).
Christy A. Visher & Jeremy Travis, Life on the Outside: Returning Home after Incarceration, 91 The Prison
Journal, no. 3 102s, 104s (Sept. 2011) (providing the statistic that two out of three people are rearrested within three
McGregor Smyth, Bridging the Gap: A practical Guide to Civil-Defender Collaboration, 27 Clearinghouse Rev.,
May- June 2003, at 56, 56, available at http:
Christy A. Visher and Jeremy Travis, Life on the Outside: Returning Home after Incarceration, 91 The Prison
Journal no.3 102S, 107S (Sept. 2011).
David J. Harding et. al., Making Ends Meet After Prison: How Former Prisoners Use Employment, Social
Support,Public Benefits, and Crime to Meet their Basic Material Needs, at 1 (September 2011), available at
Id. at 45
Christy A. Visher and Jeremy Travis, Life on the Outside: Returning Home after Incarceration, 91 The Prison
Journal no.3 at 107S (Sept. 2011) (internal citations omitted).
Responding to the Padilla decision and the growing crisis that the above statistics bear
out, the ABA Criminal Justice Section, under the former leadership of Bruce Green and with the
support of present Chair, Janet Levine, commissioned the formation of the Task Force on
Comprehensive Criminal Representation. The ABA Task Force on Comprehensive Criminal
Representation (“Task Force”) focuses on a significant movement within the defense community
to improve services and change the nature of the defense function. The Task Force is exploring
and promoting comprehensive methods and models used by criminal defense practitioners and
their staff to address the range of clients' criminal, civil, and non-legal needs in a client-centered
manner, while maintaining effective and zealous representation of clients in their criminal
matters. To be as inclusive as possible, the Task Force developed the term “comprehensive
representation” to serve as an umbrella term that refers to all client-centered and interdisciplinary
models of defense that address the circumstances driving poor people into the criminal justice
system and the consequences of that involvement.
ABA Support of Comprehensive Representation
The ABA has a long history of enacting policy and Standards that reinforce the
importance of addressing the criminal, civil and non-legal issues affecting people charged with
crimes. The ABA Justice Kennedy Commission and Commission on Effective Criminal
Sanctions “held hearings throughout the country, published policy reports, and advocated for
systemic reform”12 to address problems such as the legal and practical obstacles to an
individual’s reentry. The recommendations of the Justice Kennedy Commission, adopted by the
House of Delegates as ABA policy in 2004, urged bar associations to establish programs to
encourage and train lawyers to assist prisoners in applying for relief from “collateral
sanctions.”13 In 2007, the Commissions published a compendium of their work entitled “Second
Chances in the Criminal Justice System.”14 The Report describes a series of resolutions that were
approved and adopted by the ABA House of Delegates in 2007, that address, among other things,
representation relating to so-called “collateral” consequences, community-based alternatives to
incarceration that avoid a conviction record, improvements in parole and probation supervision
that reduce revocations, and the employment of licensing of people with convictions.15 In
addition, the ABA Standards contain a number of provisions that explicitly instruct counsel to
familiarize themselves with and advise their clients on the potential consequences of a plea
ABA Commission on Effective Criminal Sanctions, Report, Second Chances in the Criminal Justice System:
Alternatives to Incarceration and Reentry Strategies, at 6 (Dec. 2007) [hereinafter Second Chances Report]
Available at http://www.pardonlaw.com/materials/rev_2ndchance(3).pdf.
Second Chances Report, at 40 (Dec. 2007).
Second Chances Report (Dec. 2007).
Second Chances Report, at 41 (Dec. 2007). In February 2007, the ABA passed resolution 103E which urged
federal, state and local government to assist defense counsel in advising clients on [so-called] collateral
consequences, encouraged prosecutors to inform themselves of [so-called] collateral consequences that may apply,
urged federal, state and local government to fund legal service providers, sufficient to provide appropriate assistance
in removing or neutralizing a consequence or penalty. Additionally, in August 2010, the ABA passed resolution
100C which urged federal, state and local government to provide funding to state and federal public defender offices
and legal aid programs specifically for the provision of advice about the immigration consequences of criminal
proceedings and urged federal, state and local bar associations to provide training on the immigration consequences
of criminal proceedings and available relief.
bargain.16 As of the writing of this Report, the ABA is presently revising the Standards on the
Defense Function to include many elements of comprehensive representation.
Moving Away From Just Looking At The Plea
While it is clear that the Courts, through litigation and the advocacy of the ABA and
others, have begun to recognize that so-called “collateral” consequences have life-long effects
that go far beyond the criminal sentence, this Report seeks to reinforce the movement that
comprehensive criminal representation requires far more than that. It seeks to build upon a
decade of advocacy in which criminal defense practitioners across this country have engaged in
methods of interdisciplinary, client-centered representation that proactively address the root
causes of a person's involvement in the criminal justice system. A client-centered commitment to
comprehensive defense representation recognizes that to be effective, defense counsel must
attempt to address both the causes and the consequences of criminal justice involvement. By
identifying the full range of a client’s legal and social services needs, defense counsel can build
better client relationships, identify concrete client goals, and achieve better criminal case results
and client life outcomes. After analyzing the real-life penalties and consequences related to
pending cases, advocates work with clients to make key strategy decisions in light of these goals
and to provide seamless access to services.
As good practitioners know well, the real calculus of criminal defense strategy entails
much more than a binary guilt/innocence equation and encompasses many more variables
including likely penalties and punishments, the collateral damage on family members, and
rehabilitative goals.17 Acknowledging the full set of penalties and consequences and a more
complete range of client goals and needs can shift this equation at every stage of representation.
As noted by many commentators, and now the Supreme Court in Padilla v. Kentucky, this
revised calculus opens a world of creative opportunities for advocates. The extreme and
counterproductive nature of so-called “collateral” consequences undermines stable housing,
employment, and family connections.18 These penalties and other reentry barriers, mutually
See, e.g., ABA Standards for Criminal Justice: Collateral Sanctions and Discretionary Disqualification of
Convicted Persons, Standard 19-2.3 (“The rules of procedure should require a court to ensure, before accepting a
plea of guilty, that the defendant has been informed of collateral sanctions made applicable to the offense or offenses
of conviction under the law of the state or territory where the prosecution is pending, and under federal law.”) and
ABA Standards for Criminal Justice: Defense Function, Standard 4-8.1(a) (“Defense counsel's preparation should
also include familiarization with the court's practices in exercising sentencing discretion, the practical consequences
of different sentences, and the normal pattern of sentences for the offense involved, including any guidelines
applicable at either the sentencing or parole stages.”) (emphasis added); see also Chin and Holmes at 713-23 for an
exhaustive list of professional standards circa 2002 requiring defense counsel to take account of collateral
consequences when advising clients.
See, e.g., N.Y. Pen. L. § 1.05(6) (including the goal of “the promotion of [the convicted person’s] successful and
productive reentry and reintegration into society,” along with the four traditional sentencing goals of deterrence,
rehabilitation, retribution and incapacitation).
See, e.g., Regina Austin, “The Shame of it All”: Stigma and the Political Disenfranchisement of Formerly
convicted and Incarcerated Persons, 36 COLUM. HUM. RTS. L. REV. 173, 176 (2004); Nora V. Demleitner,
Preventing Internal Exile: The Need for Restrictions on Collateral Sentencing Consequences, 11 STAN. L. &
POL’Y REV. 153, 160 (1999) (arguing that “collateral” consequences achieve no rehabilitative or deterrent goals,
instead labeling the person with a criminal record an “ ‘outcast,’ and frequently mak[ing] it impossible for her ever
to regain full societal membership”); Michael Pinard, An Integrated Perspective on the Collateral Consequences of
Criminal Convictions and Reentry Issues Faced by Formerly Incarcerated Individuals, 86 B.U. L. REV. 623, 633
dependent and intertwined, together impose “often impenetrable barriers for individuals leaving
correctional facilities”19 and only serve to increase recidivism. Draconian consequences
disproportionate to the index offenses may even undermine the legitimacy of the criminal justice
system in the eyes of affected communities.20 A shared understanding of proportionality and
rehabilitative goals (combined with fierce and zealous advocacy) can form a productive common
ground for negotiation at every stage in individual cases, from bail to pleas to sentencing.
Task Force Methodology
The first phase in the Task Force's information gathering process was an online survey of
defender organizations, solo practitioners and members of assigned counsel programs that sought
to capture the client issues addressed beyond the criminal case, the staffing framework that
provides these services and the funding resources that support this work. The results
demonstrated that while many practitioners were addressing immigration issues post-Padilla,
other consequences, such as housing, employment, education, family benefits were not widely
addressed, and very few practitioners addressed re-entry and reintegration. The second phase of
the Task Force's work was comprised of gathering anecdotal information from defense
practitioners, clinicians and academics. To achieve this, the Task Force partnered with the
NACDL and the NLADA in a two day conference hosted at Cardozo Law School entitled,
Padilla and the Future of the Defense Function in June 2011 and participated in the 2011
Community Oriented Defense Network/American Council of Chief Defender Conference in
August 2011. Both conferences provided valuable information regarding the resources needed to
allow for the broadening of the defense function to include so-called “collateral” consequences.
Attendees for both conferences uniformly cited a lack of funding and resources as the chief
barriers to providing comprehensive representation. While this was a clear theme for all
conference participants regardless of location, staff size and funding source, solo practitioners
and attorneys working with assigned counsel programs claimed that they, unlike those that
worked for institutional providers and defense organizations, often had no resources whatsoever
to deal with any so-called “collateral” consequences, including most startling, immigration.
Based on the above, the Criminal Justice Section is proposing policy recommendations to
the House of Delegates that urges funding of prosecution and defense agencies so that they may
facilitate a comprehensive approach to representation and prosecution. In addition, The
Comprehensive Defense Task Force has proposed policy recommendations to the Criminal
(2006) (describing so-called “collateral” consequences and reentry as interwoven and integrated components along
the criminal justice continuum).
Pinard, supra note 14, at 666. See also Deborah N. Archer & Kele S. Williams, Making America “The Land of
Second Chances”: Restoring Socioeconomic Rights for Ex-Offenders, 30 N.Y.U. REV. L. & SOC. CHANGE
527(2006); Anthony C. Thompson, Navigating the Hidden Obstacles to Ex-Offender Reentry, 45 B.C. L. REV. 255,
273 (2004) (“These social exclusions not only further complicate ex-offenders’ participation in the life of their
communities, but they also quite effectively relegate ex-offenders to the margins of legitimate society, stigmatizing
them and further highlighting their separation from law-abiding members of society.”).
See, e.g., Jeffrey Fagan & Tracey L. Meares, Punishment, Deterrence and Social Control: The Paradox of
Punishment in Minority Communities, 6 OHIO ST. J. CRIM. L. 173, 181 (2008); Jenny Roberts, Ignorance is
Effectively Bliss: Collateral Consequences, Silence, and Misinformation in the Guilty-Plea Process, 95 IOWA L.
REV. 119, 192 (2009) (“Public confidence is particularly vulnerable at a time when the collateral consequences of
criminal convictions are harsher, more numerous, and (due to technological advances allowing easy access to
criminal records and increased focus among employers, immigration authorities, landlords, and others on even
minor convictions) more likely to affect convicted individuals.”).
Justice Council with a set of cornerstone principles (discussed infra) that seek to broaden the
defense function to include holistic and comprehensive strategies (The Prosecution Function
Committee of the Criminal Justice Section will also be proposing policy recommendations to
Council with a parallel initiative for prosecution).
Six Cornerstones of Comprehensive Representation
1. Training and Education. The first step in moving toward a comprehensive model of
criminal defense must be the creation of training and education programs for defense
counsel and non-legal staff on the relevant federal, state and local consequences and
penalties that could affect clients. Training and education programs should focus on
building a client-centered defense practice where the legal and non-legal issues
(including social services needs) facing clients are treated equally and addressed in
tandem. Priority should be placed on the creation of continued education programs that
provide the above for solo practitioners and assigned counsel members so that they can
incorporate comprehensive methods into their practice.21 ABA standards and guidelines
recognize the training of defense attorneys is crucial to the delivery of effective services
to the clients served by defender organizations.22
“Prosecutors and all criminal justice professionals who exercise
discretion in the justice system – including judges, prosecutors,
defense counsel, probation and parole offices, and correctional
officials - should participate in training that will give them greater
understanding of what elements should be considered in the
exercise of their discretion. Such training should be credited
towards continuing education program requirements.”23
2. Client Interview and Initial Assessment. The second step in moving toward a
comprehensive model of criminal defense is the utilization of the first client interview to
assess the criminal and non-criminal issues affecting the client. Defense counsel should
interview the client not only to assess the criminal issues that the client faces, but to
identify potential so-called “collateral” consequences that may flow from the client’s
contact with the justice system and social services needs that may have contributed to that
contact. Such an inquiry at the first client meeting is critical for timely investigation,
advice, and consideration of the relevant consequences and other needs such as addiction
or mental illness. Counsel can avoid or mitigate many penalties or sanctions, and meet
other important client needs, only by early advocacy during plea negotiations.24 As
indicated by the Pleas of Guilty Standards, counsel must be active rather than passive,
taking the initiative rather than waiting for questions from the client, “who will frequently
have little appreciation of the full range of consequences that may follow from a . . . plea”
While not a direct topic for this report, training for judges and prosecutors must also be provided so that all those
involved in the criminal justice system have access to information regarding the full range of consequences to allow
for better plea negotiations and mitigation discussions.
ABA, ABA Ten Principles of a Public Defense Delivery System, at 1,9.
ABA Commission on Effective Criminal Sanctions, Report, Second Chances in the Criminal Justice System:
Alternatives to Incarceration and Reentry Strategies, at 8 (Dec. 2007).
ABA STANDARDS FOR CRIMINAL JUSTICE: PLEAS OF GUILTY STANDARD § 14-3.2 cmt. at 126-27 (3d
or other strategic decisions in a criminal case.25 Client interviews should explore “what
[so-called] collateral consequences are likely to be important to a client given the client’s
particular personal circumstances and the charges the client faces.”26
3. Investigation. In addition to the criminal issues, defense counsel should investigate the
civil and social services issues that were brought up in the client interview. Investigating
all serious and likely consequences of possible criminal dispositions and the client’s
social services needs is critical because they influence the client’s priorities, defense
counsel advice, plea negotiations, decisions regarding whether a client will decide to go
to trial and sentencing. A proper inquiry and investigation lays the critical foundation for
defense strategies, plea negotiation and the “duty to advise [counsel’s] client fully on
whether a particular plea to a charge appears to be desirable.” An investigation of the
consequences for a client may include consultation with either in-house civil counsel or
other civil counsel with whom defense counsel has a relationship and referral
arrangement. Under no circumstances should defense counsel recommend acceptance of
a plea unless appropriate investigation and study of all serious and likely consequences of
the contemplated criminal plea has been completed.
4. Advise and Refer the Client where Appropriate. Defense counsel should
advise a client of all serious and likely consequences, in context, at each step of the
criminal process. Defense counsel should advise the client about the criminal matter
within the context of the full range of consequences that could flow from the possible
dispositions of the case.27 Defense counsel should also advise the client that there are
many different consequences that will flow from the client’s contact with the criminal
justice system and identify those consequences for the client. The client must have
sufficient time to consider properly these factors before making a decision to take a plea.
Defense counsel should not recommend a plea to the client without discussing the serious
and likely consequences of that plea with the client. Counsel should also work with social
services staff to meet clients’ social services needs, recognizing that program and
treatment solutions (when chosen by the client) benefit the client and improve outcomes
in the criminal case.
5. Plea Negotiations with the Prosecutor and Post Trial Sentencing. In
accordance with client goals and needs, defense counsel should seek dispositions and
sentences that avoid or minimize all penalties and consequences, criminal and civil.
Defense counsel should include consideration of all penalties and consequences in
negotiations with the prosecutor at every step of the criminal process, including decisions
on bail or bond, charging, regarding particular criminal dispositions and sentences, and in
communications with the Court regarding the appropriate sentence or conditions to be
imposed, mindful that these consequences often adversely affect family members (if
identified as a client priority) and serve as counterproductive barriers to clients’
See generally, McGregor Smyth, Holistic Is Not a Bad Word: A Criminal Defense Attorney's Guide to Using
Invisible Punishments As An Advocacy Strategy, 36 Univ. of Toledo L.R. 479 (Spring 2005).
successful and productive reentry into society.28 social workers, and civil legal experts to
achieve certain plea or sentencing goals.
6. Proactively Preparing for Reentry. People who serve substantial terms of
imprisonment and who will be released back into society often are unprepared for their
release. If people cannot successfully reenter their communities, the chances increase that
they will recidivate.29 Defense counsel should provide appropriate advice and assistance
to the client after sentencing that will help the client prove
rehabilitation or mitigate the seriousness of applicable consequences. Where available,
counsel should seek sealing or expungement for the client. In jurisdictions that provide
for a mechanism for people to get legal proof of rehabilitation, i.e. certificates of
rehabilitation, defense counsel should help the client obtain such proof. Additionally,
counsel should be aware of the consequences that attach to incarceration and provide
advocacy or information to clients about how to mitigate such consequences. For
example, people often accumulate insurmountable debt in the form of child support
arrears while incarcerated. Once released, the debt is a huge impediment to successful
reentry, thereby jeopardizing the client’s chances of ever being able to pay child support
obligations. In jurisdictions where it is appropriate, counsel should assist with or provide
information on how to get child support obligations lessened or suspended during
Cornerstones in Action
For many years now, there have been leading public defense and private law firm
projects that have been utilizing and implementing the strategies and cornerstones that the Task
Force promotes. The following projects are examples of such.
The Bronx Defenders
Founded in 1997, The Bronx Defenders implemented a model of holistic defense to fight
both the causes and consequences of involvement in the criminal justice system. Located in the
heart of the South Bronx, the poorest Congressional District in the country, its clients have a host
of legal and social support needs. The office is committed to providing its clients with seamless
access to services to meet those needs. The Bronx Defenders’ unique, interdisciplinary teams of
criminal, civil, and family defense lawyers, social workers, parent advocates, investigators, and
community organizers work with clients and their families to identify and overcome the
challenges they face. The holistic commitment begins with a six-week, cross-practice and
interdisciplinary training for each new team of lawyers, who are trained along side of their fellow
team members from all practices. Whether addressing the root causes of their involvement in the
criminal justice system such as addiction, mental illness, and joblessness, or the long-term
consequences of their criminal case, The Bronx Defenders’ goal is not just to succeed in court
but to make a long-term difference in its clients’ lives. The office also fights for justice in the
communities it serves through legislative and administrative advocacy, impact litigation,
It should be noted that a number of States do not require the presence of a prosecutor at arraignments for
misdemeanors, thus making plea negotiations and the discussion of consequences related to the pleas impossible.
ABA Commission on Effective Criminal Sanctions, Report, Second Chances in the Criminal Justice System:
Alternatives to Incarceration and Reentry Strategies, at 61 (Dec. 2007).
technical assistance for other advocates (through the Center for Holistic Defense and Reentry
Net), and coalition work with partner organizations in the Bronx and throughout New York
State. From their own experience, The Bronx Defenders have found that mitigating
consequences like evictions or loss of a job, which are root causes of crime, can help their clients
avoid falling back into the cycle of crime and successfully reenter society as productive
Beginning in 2011, The Bronx Defenders will offer its holistic services to at least 29,000
low-income families in the Bronx, annually. The Bronx Defenders will represent people charged
with crimes in 28,000 criminal cases and will represent 1,000 parents accused of abuse or neglect
in Family Court. Its civil attorneys and paralegals work through the integrated teams with other
advocates in the office to provide comprehensive, integrated representation to clients and their
families and to find real solutions to the obstacles they face. They work to preserve clients’ hard-
earned jobs, maintain stable housing and public benefits, correct rap sheet errors, keep clients in
the country with their families and educate stake holders. This integrated service model provides
the opportunity to intervene early when a client’s ability to meet her basic needs is jeopardized,
addressing problems before they become crises. By tracking outcomes in every case, The Bronx
Defenders has demonstrated that the holistic defense model results in better results for clients
(both within the criminal case and in life outcomes) and reduced long-term costs for government.
The Community Oriented Defender Network
The Community Oriented Defender Network at the Brennan Center for Justice (New
York University School of Law) is “a coalition of more than 100 public defender offices and
related service providers...[that is] united in our belief that representation of people charged with
crimes is more effective when it is “holistic” and when defenders have a deep engagement with
clients and their communities.”31To that end, the COD Network members “seek to expand their
individual skill sets, to collaborate with community members, community-based organizations,
schools, health care providers, and a broad range of other institutional players to assist clients to
achieve the best outcomes possible.”
The D.C. Public Defender Service
The DC Public Defender Service (PDS) incorporates many aspects of comprehensive
representation into their practice. PDS is composed of seven legal divisions providing legal
representation to clients from the point of arrest to successful reintegration into the community.
Specifically, the Community Defender Division, among other things, “works with community
organizations to develop reentry programs that address the special needs of children... [And] the
legal and social services needs of newly released individuals, assisting them in making a
successful transition back into the community.”32 Under the PDS model, the role of the public
defender does not end at sentencing. The Community Reentry Program at PDS strives to
eliminate or minimize the so-called “collateral” consequences of a criminal record and address
the underlying issues that contributed to a client’s contact with the criminal justice system in
McGregor Smyth, Holistic is Not a Bad Word: A Criminal Defense Attorney’s Guide to Using Invisible
Punishments as an Advocacy Strategy, 36 U. Tol. L. Rev. 479, 487 (2005).
http://www.brennancenter.org/content/section/category/community_oriented_defender_network/, last viewed
Sept. 28, 2011.
http://www.pdsdc.org/PDS/CommunityDefenderDivision.aspx, last viewed Sept. 28, 2011.
order to stop the revolving door cycle of arrest and re-incarceration. While this approach is a
fairly new and controversial concept within public defender agencies, it is not new to PDS.
Social workers have been a part of the PDS defense model for over thirty years and the agency
has provided legal assistance post-conviction through a prisoner rights program dating back to
the 1980s, which worked on prison condition issues, and representing clients at parole revocation
hearings. April Frazier, eloquently explained:
“Justice properly understood is systemic aiming at the underlying
causes of social problems, not their symptoms. Treating symptoms
alone is not effective, it is like putting a band aid on a gun shot
wound. We must be committed to addressing the social issues,
such as the lack of education, substance abuse, mental health
issues, and the everlasting stain of criminal records in order to end
the vicious revolving door cycle of the criminal justice system. I
am proud to be using my legal career to creatively solve the social
problems of indigent communities and to serve as the Community
Reentry Coordinator for the Public Defender Service for DC.”
The Knox County Public Defenders Community Law Office
The Knox County Public Defender’s Community Law Office (CLO) is a single county
judicial district public defender office in a statewide system.33 CLO utilizes a client centered
comprehensive representation model that includes criminal defense representation, supplemented
by social services. The CLO approach emphasizes comprehensive representation through
provision of services and linkage with community agencies, the effect of which, will prevent
criminal activity, reduce recidivism, and enable individuals to move toward maximum self-
sufficiency where they contribute, in a meaningful way to their communities. The CLO
comprehensive representation model addresses the client’s criminal issues as well as social
issues, i.e., a living situation, ability to earn income and mental health. For example, the CLO
assembled a collaborative defense team, including a social worker, investigator and two
attorneys to work on a case involving Billy, a 28 year-old male estranged from his wife and two
children, diagnosed with bi-polar disorder and a seizure condition. The CLO comprehensive
approach to representation, provided Billy with a collaborative supportive relationship,
addressing his criminal charges, need for independent stable housing, treatment for his bipolar
disorder and employment.
The Legal Aid Society in New York City
The Legal Aid Society is the oldest and largest not-for-profit legal services organization
in the United States, dedicated since 1876 to providing quality legal representation in 300,000
legal matters annually for low-income New Yorkers in their Criminal, Civil and Juvenile
Practices. The hallmark of the Legal Aid Society’s comprehensive approach to criminal defense
is the training program conducted with every new class of attorneys hired. The training
curriculum involves a combination of lecture, large and small group workshop and shadowing in
criminal, civil and family court that takes place in two phases. The first phase of the training
begins with a
url=research%2F11%2Farticle&mode=11&type=article, last viewed Sept. 28, 2011.
five to six week training conducted centrally, at the Manhattan headquarters, for the entire new
attorney class, regardless of the borough assignments. The training faculty is an interdisciplinary
team of criminal, civil, family, parole and criminal/immigration attorneys from each of the
Society’s practice areas. During the first several days of training, the focus is placed on using the
first interview with a client at arraignments as the place to gather critical information on both the
criminal matter and the client’s civil and non-legal issues. A key feature of this portion of the
program is a panel discussion where former clients discuss their past representation and how they
felt the communication was with their attorneys. Throughout the training, lawyers and
social workers from our Adolescent Intervention Program, MICA Unit, Trafficking Victims
Legal Defense and Advocacy Project (“TVLDAP”) and Immigration Unit spend significant time
teaching new hires how to identify clients who may be in need of enhanced services and how
best to divert these clients from jail to the community. Our paralegal and reintegration staff
housed at The New York Department of Corrections facility at Rikers Island also present on
ways to lessen the effects of incarceration on our clients while teaching attorneys how to plan for
community reintegration and team with social workers to mitigate the effects of the event.
The second phase of the training occurs when the new hire attorneys are sent to their
assignments in the five boroughs in which Legal Aid Society is the primary public defender.
While in the borough, new hires shadow experienced attorneys for several weeks while slowly
taking on clients of their own. Supervisors conference cases with new attorneys after each
arraignment shift to insure that the attorney is taking the necessary steps to investigate the
criminal case while mitigating any effects of the arrest on other areas in the client’s life such as
housing, employment and education. In the Spring and Summer the hiring class is brought back
together again for a central training three day suppression hearing simulation and a full week
Trial Advocacy Program (TAP) where each candidate conducts a full day jury trial.
Washington Defender Association Immigration Project (WDAIP)
In Washington, the duty to provide competent immigration advice in accord with national
standards was fulfilled long before the Supreme Court recognized the obligation in Padilla v.
Kentucky.34 The WDAIP was created to recognize both the critical nature of immigration
consequences to noncitizen defendants and the need for defenders to have meaningful resources
to help them address this complex and dynamic area of law. Specifically, WDA’s Immigration
Project provides individual case assistance, as well as training and resource materials to attorneys
in order to ensure that they have the necessary resources to effectively and efficiently incorporate
the immigration needs of their noncitizen clients into the scope of their representation.35 The
Project offers free immigration consultations to public and private criminal defense counsel who
seek assistance. In addition to the over 12,000 individual case consultations, WDAIP has
provided over 100 trainings, reaching more than 5,000 participants on the immigration
consequences of crimes.36
Washington state’s practice is in accord with the standards that have been established by the American Bar
Association (ABA) and the National Legal Aid and Defender Association (NLADA). These associations specifically
incorporated the duty to investigate and advise a noncitizen defendant regarding immigration consequences as an
established norm of professional conduct. See ABA Standards for Criminal Justice, Pleas of Guilty, Standard 14.3-
2(f) at 9 (3rd ed. 1999); NLADA Guidelines 2.2(b)(2)(A) (initial interview), 6.2(a) (plea bargaining), and 8.2(b)
For a detailed overview of the resources provided by WDA’s Immigration Project see
Statistics on file with Amicus Curiae, Washington Defender Association.
Immigration Project staff are available every day to take attorney requests for assistance
on negotiating cases and advising noncitizen clients in criminal cases. Individual case assistance
consultations usually take less than thirty minutes of time. Lawyers are provided with analysis
and options within hours of making a request, unless a more urgent response is required. Any
attorney may obtain, at any time, current information about the immigration consequences of
specific Washington criminal offenses on WDA’s website.37 Online resources also include
strategies for effectively negotiating cases to mitigate these consequences. WDAIP staff also
regularly provides training on a wide variety of immigration-related topics.
These trainings occur both in live seminars and over the computer, which means they are
available to attorneys wherever they practice in the state. The Project prioritizes trainings that
focus on providing attorneys with the tools to identify specific immigration consequences of
particular offenses and strategies to effectively address these consequences when negotiating
plea agreements or advising a client to go to trial.38 WDA’s Immigration Project serves a more
fundamental purpose, in that its purpose is to
assist attorneys in ensuring that their noncitizen clients make informed decisions about their
criminal proceedings. Consequently, even where a defender is unable to negotiate a plea that
avoids inevitable deportation, a noncitizen defendant can factor the potentially severe
immigration consequences into his decision to accept a plea to a deportable offense or risk trial.
Georgia Justice Project (GJP)
Since it was founded 1986, Georgia Justice Project (GJP) has been devoted to breaking
this cycle of poverty and crime. Based in the historic Martin Luther King, Jr., neighborhood of
Atlanta, GJP provides quality, free legal representation in criminal cases, coupled with social
services to help clients make positive changes in their lives. In addition, GJP’s Coming Home
program helps expunge, correct, or overcome the negative impact of arrest (and conviction)
records - records that can keep people from getting housing, jobs, and food stamps – all
significant aids in breaking the cycle of crime. And GJP proactively advocates for legislative
and policy changes to help former prisoners reenter society.
Founded by a former corporate litigator, GJP is a private 501 (c)(3) organization that
does not accept government funding. GJP’s takes a holistic and long-term approach to indigent
representation with goal distinct goals in mind: to ensure justice for the indigent criminally
accused and to help those clients lead lives as crime free citizens. GJP attorneys provide high-
quality legal defense at no charge. Our goal is to ensure the criminal justice system functions
properly and that our clients are afforded due process.
As the legal case begins, GJP assigns each client to a member of our social work staff, who
offers a range of counseling, job training, and referral services. Our goal is to ensure that our
clients’ life circumstances change so living crime-free lives is not only possible but actively
supported. If GJP’s clients have to serve time in prison, GJP does not abandon them. Rather, we
communicate regularly and visit several times a year. We also help arrange for client’s families
to visit so support networks are maintained. In an effort to create community and maintain
See the WDA website at www.defensenet.org/immigrationproject.
For example, a noncitizen defendant’s plea to assault in the fourth degree pursuant to RCW 9A.36.041 can render
her subject to automatic deportation as an “aggravated felon” under 8 U.S.C. 1101(a)(43)(F) where the sentence
imposed, regardless of time suspended, is 365 days. See 8 U.S.C. 1101(a)(43)(F), 1227(a)(2)(A)(iii) and 1228(b).
See also U.S. v. Gonzalez-Tamariz, 310 F.3d 1168 (9th Cir. 2002). Obtaining a one day difference in the sentence
imposed (364 days versus 365 days) avoids this consequence. See State v. Quintero-Morelos, 133 Wn.App. 591, 137
P.3d 114 (2006).
relationships with former clients, GJP hosts two annual events – a back-to-school festival in the
summer and a Christmas party in December. Every former client is invited.
For people coming out of jail or prison, the opportunity for employment is essential to a
successful re-entry. GJP staff guide clients in their job search efforts, connecting them with leads
and following up with both clients and employers. In addition, GJP builds relationships with
employers for further job development.
Youth Represent was started in 2005 because it was clear that young people in the
criminal justice system were falling through the cracks, and needed one attorney on whom they
could rely to provide representation for the myriad consequences that follow an arrest. Youth
Represent works to ensure that youth from under-served and over-policed neighborhoods have
access to the fundamental cornerstones of stability – including housing, employment, and
education – both during and after involvement with the justice system. Youth Represents is
privately funded through the generosity of individual donors and philanthropic foundations.
Youth Represent successfully represented an 18 year-old whose entire family was arrested
because her mother was selling drugs from the family’s apartment to support her own drug
addiction. Letitia was referred to Youth Represent after it was discovered that she was never
assigned an attorney after arraignment, where her entire family was represented by an assigned
attorney who could not continue representation due to the conflict of interests. She was
completely unaware that she was facing jail and eviction. Utilizing our unique model of
wraparound legal services, in which each young client is assigned to one attorney for all legal
matters, Alison Wilkey, our Senior Staff Attorney, represented Letitia in criminal court, in
housing court, and at the New York City Housing Authority. After months of advocacy,
investigation, and research, the indictment against Letitia was dismissed and her public housing
Funding is essential for Comprehensive Defense. This resolution urges governments,
foundations and other funders of prosecution and defense offices and legal services to provide
financial support to programs that enable the exploring and promoting of comprehensive
methods and models used by criminal defense practitioners and their staff. Funding to encourage
holistic and comprehensive strategies is necessary. With proper funding to explore, promote,
and train on comprehensive lawyering; defense practitioners are able to address the range of
clients' criminal, civil, and non-legal needs in a client-centered manner, while maintaining
effective and zealous representation of clients in their criminal matters.
Nurturing the idea of comprehensive representation requires proper funding for defense
attorneys and their support staff and agencies. Proper funding for comprehensive representation
will enable new approaches and strategies, often in collaboration with new partners outside of
the criminal justice sphere, without diminishing the appropriate emphasis on the traditional tools
for representation. Based on the above, the Criminal Justice Section is proposing policy
recommendations to the Criminal Justice Council that urges funding of defense agencies so that
they may facilitate a comprehensive approach to representation.
Janet Levine, Chair
Criminal Justice Section
GENERAL INFORMATION FORM
Submitting Entity: American Bar Association Criminal Justice Section
Submitted By: Janet Levine, Chair
1. Summary of Resolution(s).
The resolution urges defender organizations and criminal defense lawyers to
address clients’ inter-related criminal, civil and non-legal problems by:
collaborating with civil practitioners, legal services organizations, and social service
program providers; providing re-entry and reintegration services; and facilitating
training of criminal defense lawyers and their staff on addressing clients’ civil legal
and non-legal problems related to the criminal case. The resolution also urges
funding for these purposes.
2. Approval by Submitting Entity. The proposed resolution was approved by the
Criminal Justice Section Council at its April 14, 2012 Spring Council meeting.
3. Has this or a similar resolution been submitted to the House or Board previously?
Neither this resolution nor a similar one has been submitted to the House or Board
previously; however, the ABA Criminal Justice Standards and a number of House-
approved resolutions are relevant to this one. See #4, below.
4. What existing Association policies are relevant to this Resolution and how would
they be affected by its adoption?
Resolutions encouraging defense counsel to address clients’ concerns beyond the
immediate criminal case include those that: urge governments to authorize and
fund public defender services, legal aid services, and/or other legal service
providers to provide offenders with appropriate assistance in removing or
neutralizing the collateral consequences of a criminal record (2007MY, #103E);
urge funding and training of pubic defenders to provide their clients advice on the
immigration consequences of criminal proceedings and available relief (AM2010,
#100C); urge initiatives to train criminal defense counsel to assist their clients in
avoiding undue consequences of arrest and conviction on their custodial and
parental rights (MY2010, #102F); adopt “Standards of Practice for Lawyers
Representing Victims of Domestic Violence, Sexual Assault and Stalking in Civil
Protection Order Cases “ (2007AM, #109); and urge programs to encourage and
train lawyers to assist victims of domestic violence with applying for pardon,
restoration of legal rights and privileges, relief from other collateral sanctions, and
reduction of sentence (2007MY, #102A). The ABA has also recognized the value
of re-entry programs (e.g., AM04, #1212D and in the Treatment of Prisoner
Standards). The proposed resolution would supplement but not change any of
5. What urgency exists which requires action at this meeting of the House?
Hundreds of thousands of people suffer life-altering and often devastating
consequences resulting from and arrest and/or criminal convictions. Often these
consequence are barriers to housing and employment causing a person to often
continue to engage in illegal activity. National attention is being given to stemming
this vicious cycle. At a recent ABA SCLAID/NACDL conference Attorney General
Holder spoke about the need to address this issue.
6. Status of Legislation. (If applicable). None.
7. Brief explanation regarding plans for implementation of the policy, if adopted by the
House of Delegates.
The Task Force on Comprehensive Representation will continue to meet to create a
training program. Additionally The ABA Criminal Justice Section has been working
on the creation of a web-based resource that will assist defense attorneys and other
criminal justice stakeholders of identifying consequences and penalties.
8. Cost to the Association. (Both direct and indirect costs) --- No cost to the
Association is anticipated.
9. Disclosure of Interest. (If applicable) None.
10. Referrals. Concurrently with the submission of this report to the ABA Policy
Administration Office for calendaring on the Annual 2012 House of Delegates
agenda, the resolution and background report have been sent to the chairs and staff
directors of the following ABA entities:
Lawyer Referral and Information Services
Legal Aid and Indigent Defendants
Committee on Ethics and Professional Responsibility
Special Committees and Commissions
Death Penalty Representation Project
Commission on Domestic and Sexual Violence
Commission on Hispanic Legal Rights and Responsibilities
Commission on Homelessness and Poverty
Commission on Immigration
Commission on Law and Aging
Commission on Mental and Physical Disability Law
Coalition on Racial and Ethnic Justice
Commission on Sexual Orientation and Gender Identity
Sections and Divisions
General Practice, Solo and Small Firm Division
Individual Rights and Responsibilities
Young Lawyers Division
Section of Taxation
Section of International Law
Section of Business Law
11. Contact Name and Address Information. (Prior to the meeting).
111 Livingston Street, 7th Floor
Brooklyn, NY 11201
12. Contact Name and Address Information. (Who will present the report to the
Stephen A. Saltzburg, Section Delegate
George Washington University Law School
2000 H Street NW
Washington DC 20052-0026
PH: 202/994-7089; 202 /489-7464 (cell)
William N. Shepherd, Section Delegate
Holland & Knight LLP
222 Lakeview Ave
West Palm Beach, FL 33401-6148
PH: 561/650-8338; 561/723-9669 (cell)
1. Summary of the Resolution
The resolution urges defender organizations and criminal defense lawyers to
address clients’ inter-related criminal, civil and non-legal problems by:
collaborating with civil practitioners, legal services organizations, and social
service program providers; providing re-entry and reintegration services; and
facilitating training of criminal defense lawyers and their staff on addressing
clients’ civil legal and non-legal problems related to the criminal case. The
resolution also urges funding for these purposes.
2. Summary of the Issue that the Resolution Addresses
Clients represented by criminal defense attorneys often have underlying
problems that relate directly or indirectly to their criminal behavior and, without
attention, are likely to result in future criminal conduct. Examples include lack of
(or insufficient) housing, education, and employment; mental or physical health
issues; drug addiction; and family-related issues. Connecting their clients with
civil and non-legal resources that can help them deal with such issues is
expected to reduce the likelihood of the clients’ future involvement with the
criminal justice system.
3. Please Explain How the Proposed Policy Position will address the issue
The proposed policy would encourage defense attorneys to look beyond their
traditional role of representing clients in criminal cases to assisting them in
dealing with issues that are conducive to future criminal conduct.
4. Summary of Minority Views