January 22, 2020
In the Bronx, Does Holistic Criminal Defense Make a Difference?
By James M. Anderson, Maya Buenaventura, and Paul Heaton
Since its inception in 1997, the Bronx Defenders has provided what it calls “holistic defense” to community residents – an approach that, in the organization’s words, seeks to “identify the causes of our clients’ criminal justice involvement and to protect them from the enmeshed penalties associated with their cases.” In 2019, the Harvard Law Review published an analysis of this work by researchers from RAND Corporation, excerpted here with that publication's permission.
Debates over mass incarceration emphasize policing, bail, and sentencing reform, but give little attention to indigent defense. This omission seems surprising, given that interactions with government-provided counsel critically shape the experience of the vast majority of criminal defendants. This neglect in part reflects our lack of evidence-based knowledge regarding indigent defense, making it difficult to identify effective reforms.
One approach that continues to gain support is holistic defense, in which public defenders work in interdisciplinary teams to address both the immediate case and the underlying life circumstances — such as drug addiction, mental illness, or family or housing instability — that contribute to client contact with the criminal justice system. Holistic defense contrasts with the traditional public defense model that emphasizes criminal representation and courtroom advocacy.
Proponents contend holistic defense improves case outcomes and reduces recidivism by better addressing clients’ underlying needs, while critics argue that diverting resources and attention from criminal advocacy weakens results….
In the Bronx, a holistic defense provider (the Bronx Defenders) and a traditional defender (the Legal Aid Society) operate side-by-side within the same court system, with case assignment determined quasi-randomly based on court shift timing. Using administrative data covering over half a million cases and a quasi-experimental research design, we estimate the causal effect of holistic defense on case outcomes and future offending.
Holistic defense does not affect conviction rates, but it reduces the likelihood of a custodial sentence by 16 percent and expected sentence length by 24 percent. Over the 10-year study period, holistic defense in the Bronx resulted in nearly 1.1 million fewer days of custodial punishment. …
While holistic defense does not dramatically reduce recidivism, as some proponents have claimed, strengthening indigent defense apparently offers considerable potential to reduce incarceration without harming public safety….
According to its proponents, the key insight of holistic defense is that to be truly effective advocates for their clients, defenders must adopt a broader understanding of the scope of their work with their clients. Defenders must address both the enmeshed, or collateral, legal consequences of criminal justice involvement (such as loss of employment, public housing, custody of one’s children, and immigration status), as well as underlying non-legal issues that often play a role in driving clients into the criminal justice system in the first place.
To this end, holistic defender offices are staffed not only by criminal defense lawyers and related support staff (investigators and paralegals) but also by civil, family, and immigration lawyers as well as social workers and non-lawyer advocates, all working collectively and on an equal footing with criminal defense lawyers. This holistic model contrasts with the traditional public defense model, which focuses almost exclusively on criminal representation….
Both the Bronx Defenders and Legal Aid describe their representation as “holistic,” and interviews suggest some degree of convergence in their goals and staffing models in recent years…. Criminal defense attorneys at both organizations make referrals to civil attorneys when noncriminal issues such as risk of deportation or potential loss of public housing arise; however, the Bronx Defenders continuously assesses referral structure and referral success and models, trains, and evaluates interdisciplinary communication between advocates.
The Defenders also organizes its office in interdisciplinary teams with leaders who, along with practice-area supervisors, monitor whether team members are communicating effectively and are identifying needs beyond their independent practice area. Thus, the Defenders appears to embrace practices likely to facilitate the flow of information across different members of the defense team.…
A practical consequence of the Bronx Defenders’ team structure is that criminal defense attorneys at the Bronx Defenders have consistent access to civil attorneys, even if civil attorneys on their team have an independent caseload. Criminal defense attorneys at the Bronx Defenders reported that advocates in other practice areas are almost always receptive to referrals, even when their independent caseload is already inundated…. Because of physical proximity, advocates can talk about outcomes across all domains and communicate urgent tasks that need to be completed in each advocate’s practice area. In addition, attorneys at the Bronx Defenders noted that because team leaders and practice-area supervisors are tasked with monitoring effectiveness and ease of referrals, and because the organization in general focuses on making referrals as seamless as possible, teams can quickly respond to any barriers to referrals….
The second notable difference between the Bronx Defenders and Legal Aid is that the Bronx Defenders uses social workers more frequently. These social workers conduct psychosocial assessments, recommend treatment for clients experiencing substance abuse disorders or mental health problems, and collect mitigating information to contextualize the behavior that led to criminal justice involvement. Attorneys at the Bronx Defenders and Legal Aid note that connecting clients with appropriate treatment sometimes allows them to reach creative plea deals and dispositions. For example, an assistant district attorney may accept a defendant’s spending 12 weeks in anger management in place of jail or probation, or if a defendant does well in a treatment program, the judge might consider a non-incarceration disposition….
The greater proportion and use of social workers at the Bronx Defenders suggest that, as compared to Legal Aid, the Bronx Defenders might be able to more easily connect clients with treatment for underlying issues, and that the organization has more manpower to collect and communicate mitigating information, which may contribute to less punitive sentencing.