Office of the State Public Defender

Background

Overview of Office of the State Public Defender (OSPD). The OSPD was originally created in 1976 to represent indigent criminal defendants in appellate cases. Since 1990, however, the mandate of the office has been to focus on death penalty cases. The mission of the office was expanded in 2020 to include representation in trial court indigent defense cases—which is in addition to the representation provided by county public defenders and indigent defense counsel. Additionally, the state also expanded OSPD’s mission to include providing assistance and training to indigent defense attorneys as well as improving the quality of indigent defense representation.

Governor’s Proposal

Request for Ongoing Resources for Diversity, Equity, and Inclusion (DEI) Work. The Governor’s budget proposes $280,000 ongoing General Fund and two Associate Governmental Program Analyst (AGPA) positions for OSPD to engage in activities to improve DEI in the recruitment, hiring, and retention of staff. The requested positions are also expected to help OSPD leadership develop a DEI strategic plan, create strategies to achieve DEI-related goals, implement and maintain DEI polices and processes, and coordinate DEI training.

Assessment

Merits Consideration, but Different Methods Available to Achieve Desired Outcomes. We find that seeking to improve DEI policies and practices within OSPD in order to improve the diversity and retention of staff is a laudable goal that merits legislative consideration. Research indicates that a more diverse, equitable, and inclusive workplace can have various benefits—such as increased employee morale, longevity, and productivity. Additionally, as noted by OSPD, 76 percent of its attorneys are white, while 78 percent of its active death penalty clients are non-white. Research suggests attorney representation could be more effective if trust is built when clients and attorneys are of similar backgrounds (such as race) or through effective DEI training. The specific methods used to improve such policies and practices, however, can vary. For example, one option is to employ dedicated state employees for such work, while another is to employ external contractors to identify recommendations for implementation.

Issues for Legislative Consideration

We raise key questions for consideration to assist the Legislature in determining whether the Governor’s proposal is the most effective way to improve DEI at OSPD.

Should Resources Be Provided Before the California Department of Human Resources (CalHR) Develops a DEI Strategy for the State’s Civil Service? CalHR is generally responsible for managing state personnel policies, including issues related to recruitment, selection, and training. The 2022-23 budget package included 43 permanent positions and $7.5 million in 2022-23 and $6.8 million ongoing to implement various proposals aimed at finding ways to make the state a better employer. One such proposal was to improve statewide data on the workforce to then develop a statewide DEI strategic plan. To date, such a strategic plan has not yet been developed. Given that OSPD has under 100 employees, it might be beneficial to wait for CalHR to issue the statewide plan before OSPD proceeds with its department-specific efforts to ensure they are consistent with the statewide plan. On the other hand, there could be merit in allowing a department that has a unique mission or a high-priority and immediate DEI problem to move forward with its efforts prior to the release of the statewide report. In addition, we note that OSPD is not the only state department that is making efforts to make a department-specific DEI recruitment and retention strategy.
Should OSPD Efforts Be Coordinated With Other Statewide Efforts? OSPD states that the racial demographics of its attorneys are similar to the overall demographics of attorneys statewide. This suggests that the lack of diversity at OSPD could be related to there being an insufficient number of non-white attorneys statewide. To the extent this is the case, it could be important for OSPD to coordinate its efforts with those being undertaken to address this wider problem. In particular, statewide attorney DEI efforts are currently being pursued by the State Bar of California. For example, the State Bar has launched the DEI Leadership Seal Program to recognize employers that implement specified actions to further DEI within their workplaces. The Legislature could consider the extent to which the OSPD efforts are, or should be, coordinated with these other efforts.
Should OSPD First Develop a Clear Plan Before Resources Are Provided? OSPD currently does not have an existing DEI strategic or tactical plan in place. This is because OSPD indicates that developing the office’s DEI strategic or tactical plan, along with other activities, would be the responsibility of the requested positions. However, before resources are provided, it could be more appropriate for a plan to be developed. This is because a lack of such a plan can make it difficult to determine what goals or outcomes OSPD is seeking to meet, what specific steps are needed to accomplish them, and what level of resources are needed. It would also be difficult to determine whether it is consistent with existing state law—such as Proposition 209 (1996) which amended the California Constitution to prohibit discrimination or preferential treatment to any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting
Are Ongoing Resources Needed at This Time? To the extent the Legislature decides to provide OSPD with resources before a DEI strategic or tactical plan is in place, the Legislature could consider whether ongoing resources are justified at this time. On the one hand, it could be reasonable to provide limited-term resources to allow OSPD to begin its work and clearly identify its DEI plan and the steps it plans to take to accomplish them. The Legislature would then be able to review the plan to see if it is in line with legislative priorities and/or the statewide DEI plan. On the other hand, to the extent that the Legislature determines that OSPD recruitment, hiring, and training is such a pressing need that improving it should be pursued immediately, ongoing funding could be provided to specifically support those activities the Legislature believes is justified.
Would Consultants Be Better Positioned to Obtain Desired Outcomes? DEI expertise typically involves conceptual and technical expertise developed over time through research or study as well as experience. For example, DEI experts frequently have a historical and current understanding of race-related concepts, the impacts specific policies have had in particular policy areas (such as housing) over time, and behavioral theory used to overcome prevailing institutional and organizational DEI barriers. Researchers, academics, and others have spent years developing such expertise. It could be difficult for the state generally to recruit people with this background into less senior and lower-paying classifications—such as the AGPA position classification requested by OSPD. Moreover, it might not be cost-effective to use more senior, higher-paying classifications given that that the agency has under 100 employees. Instead, the Legislature could determine that providing resources to contract externally for such expertise may be more effective. For example, the Legislature could provide funding for OSPD to contract with an external consultant to develop its DEI strategic plan and/or evaluate and recommend actions to be taken specifically to improve the hiring and retention of staff—which would involve the input of OSPD staff. Ongoing staff resources, such as to execute the recommended actions, could then be requested at a future date.
What Classification(s) Are Most Appropriate for DEI-Related Work? If the Legislature determines that state employees should be used and that ongoing resources should be dedicated to OSPD, the Legislature will want to consider which classifications are most appropriate. As noted above, OSPD may have difficulty recruiting people with DEI expertise to AGPA positions. We note that CalHR received five Staff Services Manager (SSM) positions specifically to develop the statewide DEI plan. In a January 2023 progress report, CalHR reported challenges with filling these positions due to insufficient applications being received. As SSM position classifications have higher technical qualifications than AGPA positions, this raises questions regarding whether OSPD would have similar problems filling AGPA positions. If the positions are filled with individuals who lack such expertise, the quality or thoroughness of the resulting work could be impacted. Moreover, more senior classifications may be needed to inspire departmental culture or organization changes as well as to implement such changes, monitor whether the desired outcomes are being achieved, and further modify such changes as necessary. However, if the state’s goal is to implement clearly specified actions identified by departmental management or hired consultants, less senior position classifications could be needed as such tasks may be less complex or technical.
How Should Legislative Oversight Be Conducted? To the extent the Legislature provides resources to OSPD or other departments, the Legislature will want to consider how to conduct oversight of how the resources are used and what outcomes are achieved. Such oversight could include requiring regular reporting on key metrics or that surveys or evaluations be conducted to assess the impact of the DEI activities. This would provide the Legislature with the necessary information to determine whether state funds were used effectively as well as whether there are any unintended challenges or unanticipated outcomes. Such information could also inform legislative deliberations on potential proposals from other departments in the future and how DEI work should be coordinated across the state.