Once funding has been secured, government agencies must engage a provider partner or collaborative of providers—typically a nonprofit organization or a public defender’s office—to carry out the representation.In some locations, nonprofits (rather than governmental public defenders’ offices) are largely responsible for providing public defense. For example, this is true in New York City. Although neither entity is necessarily better equipped to operate these programs than the other, the suitability of a partner will largely depend on the organization’s experience and strengths, as well as the landscape of legal providers in the jurisdiction.Because the long-term goal of these programs is to create an infrastructure for public defense through institutional providers, private attorneys and small firms with limited capacity are not typical primary partners, though they can be engaged in more robust programs, for example by representing people when the primary provider has a conflict of interest.

A strong provider is crucial to the program’s success

Each jurisdiction has specific needs and requirements, but the following core principles should guide the provider selection process:

  • Ideally, the provider should have a demonstrated track record of providing high-quality removal defense. This type of experience, preferably with detained immigrants, is one of the most important criteria. Ideally, providers will have experience navigating the intersection of immigration and criminal law, as some people end up in detention because of prior contact with the criminal legal system.See Randy Capps, Muzaffar Chishti, Julia Gelatt, et al., Revving Up the Deportation Machinery: Enforcement and Pushback under Trump (Washington, DC: Migration Policy Institute, 2018), 38-46, https://perma.cc/X8K5-G3CL. In some jurisdictions—such as in New York City, where the Bronx Defenders, Brooklyn Defender Services, and later the Legal Aid Society were selected to implement NYIFUP—public defenders’ offices have been selected because of their experience in this area and their practice of providing zealous representation for all, regardless of people’s background or past criminal convictions. In other jurisdictions, immigration legal service providers may be better suited to implement a program because of their expertise in removal defense. In many other places, there may not be an organization with experience in removal defense; additional supports will be needed to start and sustain a program. See "Building defense from scratch" for examples of how programs have successfully managed this.
  • The provider should be deeply committed to the principle that everyone deserves a zealous defense.“As advocate, a lawyer zealously asserts the client’s position under the rules of the adversary system.” American Bar Association, “Model Rules of Professional Conduct: Preamble & Scope,” https://perma.cc/N7KA-SNUW. Universal representation programs present an opportunity to implement the values that most attorneys cherish. But as described in “The universal representation culture shift,” providers that previously operated under a triage model may find they need to shift the culture of their practice. Applicants should articulate commitments to representation for all, holding the government to its burden, and creatively considering all defenses and avenues for relief for every client. Providers new to universal representation should also demonstrate a plan for integrating a merits-blind selection model into their operations
  • The provider should have strong roots in immigrant communities and/or be connected with community-based organizations that work closely with immigrants. Building or maintaining trust with immigrant communities is critical to this work. Some providers are situated within CBOs, while others will need to be in continuous communication with CBOs throughout the program so that they can collaborate on education about new services and facilitate referrals. Changes in enforcement, detention, and court policies may necessitate adjusting how the program is run; CBOs should have accurate up-to-date information about the program to ensure community trust and accountability.
  • The number and type of providers selected should be commensurate with the level of investment and be reassessed as the program grows. When a program starts with a small initial investment, it usually makes sense to concentrate those resources with one provider or a small number of providers, to help ensure that each one is able to hire and support a full practice team and maximize the benefits of doing so.See Vera Institute of Justice, Los Angeles Justice Fund: Year 2 Evaluation (New York: Vera Institute of Justice, 2020), 40-41, https://perma.cc/ZC4W-8M9G. Funding too many organizations at the outset with a limited pool of money creates inefficiencies and can decrease the program’s overall impact. Ideally, providers should be equipped to represent people in the wide range of claims that arise under a universal representation model, thus enabling them to begin representation immediately after meeting a prospective client. Program administrators may also involve providers that specialize in working with specific populations, such as survivors of gender-based violence or people who identify as LGBTQIA+. These organizations could receive referrals from the program’s primary providers when specialized expertise would benefit clients. As the investment in the program grows over the years, jurisdictions should reassess the number and types of providers funded and how to increase their capacity to execute the program more robustly.
  • The goal is to provide zealous, person-centered representation. Legal teams must have enough resources to provide zealous representation throughout the life of a case, and the number of people served should never be prioritized over the quality of service. Unreasonably high proposed metrics will not only negatively affect outcomes and the delivery of due process but can also undermine the program’s future scalability by setting an unsustainable precedent for costs. Providers will likely have a sense of how many clients they can reasonably and ethically represent over the course of a year with the staffing the funding level supports, and lessons can be learned from other programs. As is discussed in “Paying for representation: Costs and payment models,” funders and providers should approach metrics with a spirit of flexibility and a commitment to open communication throughout the implementation period. This is necessary to account for all of the factors beyond a provider’s control that may influence the number of clients ultimately served.

Local funding rules determine a program’s process and timeline

Although some jurisdictions require a competitive RFP process for contracts or grants above a certain amount, others permit the government to contract directly with an external provider or public defender without a competitive application process. Whenever possible, processes should be streamlined to ensure that programs can begin making an impact as soon as they can. But an RFP process can help promote government transparency, serve as a stepping-stone for establishing a contract or grant between the funder and the provider, and present an opportunity to clarify priorities and expectations. The content of an RFP for a universal representation program is relatively consistent and should include these components:

  • a description of the competencies required to carry out a universal representation program;
  • a plan for staffing the program;
  • a general plan for a merits-blind intake system and selection of clients and how to provide them continuous, independent, and zealous representation;
  • quantifiable markers to assess whether the program is meeting the desired goals; and
  • a budget sheet and budget narrative that aligns with the staffing and program plan.

Like the advisory committees described previously, a provider selection committee can involve a range of relevant stakeholders who serve in a voting or advisory capacity, including government representatives, local experts (such as law school clinical faculty), and representatives from CBOs, as well as people directly impacted by the immigration system. This helps ensure that the program and its design reflect the community’s desires and the fund’s goals—and that the selected provider has roots in the immigrant community or a record of collaboration with local organizations. As mentioned previously, for example, the Long Beach Justice Fund Oversight Committee reserved several seats for community members and representatives of the local advocacy group who will also serve on the provider selection committee.

The number of providers in the jurisdiction and their desire and capacity to expand their work to include this model will dictate the response to the RFP. Because ICE detains people in remote locations, providers are often located far from the people they would represent, creating barriers to expansion. Urban areas may have many providers with expertise in removal defense, while there may be fewer experienced providers in smaller cities and rural or remote areas—or none at all. But successful programs have grown even in areas that previously had no removal defense capability. In some places, experienced providers from neighboring cities can expand their reach to serve new jurisdictions, opening satellite offices or building local capacity for removal defense. In other places, organizations will need to build a removal defense program from scratch to help realize the long-term goal of nationwide universal representation.

Building defense from scratch

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