Needed: A Cultural Revolution

Vol. 39 No. 4

By

Steve Hanlon is a former chair of the Individual Rights and Responsibilities Section, is currently the chair of the Indigent Defense Advisory Group of the Standing Committee on Legal Aid and Indigent Defendants, and was lead counsel for the Missouri Public Defender Commission in the Waters case.

On March 18, 2013, we marked—we dared not celebrate—the fiftieth anniversary of the U.S. Supreme Court’s decision in Gideon v. Wainwright. Reams of studies have confirmed what we have known for decades: With rare exceptions, our generation of lawyers, judges, governors, and legislators has produced a criminal justice system in our state courts that, to the extent (at least eighty percent in most jurisdictions) that it involves the utilization of public defenders, is almost invariably systemically unconstitutional and unprofessional due to grossly excessive public defender caseloads.

Despite the heroic, indeed Sisyphean efforts of individual public defenders, the harsh truth is that every day in thousands of courtrooms across this nation, public defenders “meet ’em and plead ’em,” spending precious few minutes with their clients, as their offices triage cases by shifting resources to higher-risk cases (e.g., homicides and sex offenses). And every day in thousands of courtrooms throughout this nation, prosecutors secure uncounseled waivers of counsel and uncounseled guilty pleas from criminal defendants with little education or understanding about the criminal justice system, especially the devastating collateral effects of those very guilty pleas.

Indeed, a compelling argument could be made that the principal function of all of the players in the criminal justice system with respect to the invariably poor and largely black and brown population appearing before them is to serve as a facilitator for the mass overincarceration of a nation that now incarcerates a greater proportion of its population than any other nation in the world.

This sad state of affairs is or should be well known to all of our courts, especially our state supreme courts, most of them charged under their state constitutions with a power of general superintendence or equivalent responsibility over the entire justice system in their states.

This is the legacy of our generation of judges, lawyers, governors, and legislators, like it or not. This happened on our watch. Our grandchildren will undoubtedly ask us how and why this happened.

How did we get here? It is worth recounting this sordid history.

• 1963: Gideon v. Wainwright establishes the right to counsel in criminal cases.

• 1972: Argersinger v. Hamlin extends this right to counsel to misdemeanors where a defendant could be imprisoned.

• 1973: Strickland v. Washington reaffirms the right to counsel but then undermines it with an elusive and highly deferential performance standard and, as Justice Marshall predicted in a memorable dissent, a nearly insurmountable prejudice standard.

• 1977: Justice Brennan warns in a Harvard Law Review article that federal courts are in the process of abdicating responsibility for enforcement of the Bill of Rights under the guise of various avoidance doctrines, and urges advocates to look to state constitutions for greater protections of individual rights, which, if upheld by state supreme courts, would be unreviewable by the U.S. Supreme Court.

• 1988: In Luckey v. Harris, the Eleventh Circuit, in an opinion written by the great Judge Robert S. Vance, recognizes a systemic claim for ineffective assistance of counsel and a right to prospective injunctive relief upon a traditional showing of irreparable harm resulting from unreasonable caseloads.

• 1992: Justice Brennan’s prediction comes true for systemic claims of ineffective assistance of counsel. Judge Vance has been assassinated. In Luckey v. Miller, a newly constituted Eleventh Circuit applies the abstention doctrine to avoid federal judicial review of systemic claims of ineffective assistance of counsel. The federal courts of this nation then abdicate their responsibility for enforcement of the Sixth Amendment to the U.S. Constitution in state courts.

• 1992 to 2009: The first generation of systemic indigent defense litigation occurs in many state courts. These are “land wars in Asia,” requiring massive evidentiary showings to a state court judiciary that lacks the power to appropriate the funds essential to deal with the problem of grossly excessive caseloads. Some of these cases produce relief, including some additional funding. But the remedy is not permanent and is continually and inevitably thereafter subjected to legislative fiscal fiats, which are not infrequently met with judicial acquiescence, thus ensuring continued systemic ineffective assistance of counsel.

The American Bar Association, and particularly its Standing Committee on Legal Aid and Indigent Defendants (SCLAID), has not been a passive observer of these developments. In 2002, the ABA adopted The Ten Principles of a Public Defense Delivery System and recommended that states use these principles to assess needs in public defense delivery systems. In 2006, the ABA Ethics Committee issued Formal Opinion 06-441, concluding that all lawyers, including public defenders, must move to withdraw and advise the court not to make any new appointments when, because of excessive caseloads, they are unable to furnish representation in compliance with their ethical duties. Finally, recognizing that ABA policy did not include an action plan to assist defender organizations in complying with their professional obligations, in 2009 the American Bar Association stood up and said, “No more,” and adopted the Eight Guidelines of Indigent Defense Related to Excessive Caseloads (the Eight Guidelines). (All of the above are available at http://www.indigentdefense.org.)

At its core, the Eight Guidelines proclaimed that a public defender organization faced with a caseload so excessive that its lawyers could not render effective assistance of counsel for each client it represents must, after taking appropriate steps to notify the judiciary of the constitutional and professional impediments inherent in the excessive caseloads they are experiencing, seek judicial relief from appointment to additional cases.

The first excessive caseloads case in a state supreme court to cite the Eight Guidelines with approval was decided on July 31, 2012. In Missouri Public Defender Commission v. Waters, 370 So. 3d 592 (Mo. Banc 2012), the Missouri Supreme Court, taking Abe Fortas up on his challenge to the U.S. Supreme Court almost fifty years earlier to “lay down a principle,” squarely held:

• A judge may not appoint counsel when he or she is aware that for whatever reason (including excessive caseloads) counsel is unable to provide effective representation.

• Effective representation, not just pro forma representation, is required by the Missouri and U.S. Constitutions.

• A conflict of interest is inevitably created when a public defender is compelled by his or her excessive caseload to choose between the rights of the various defendants he or she is representing.

The court then advised trial courts to manage their dockets by triaging cases so that the most serious offenses and other priority cases take precedence in appointment of the public defender and in scheduling for trial. The court noted that this remedy was not without certain costs, including potentially the release of some offenders because of their rights to speedy trial.

The Missouri public defender is now laying the groundwork for reliably determining and then demonstrating the existence of excessive caseloads, including instituting timekeeping by all its lawyers and staff and the development of appropriate metrics (as detailed later). This is the beginning of a new generation of indigent defense litigation, which will rely heavily on the admonition in the Report to the Eight Guidelines’ Recommendations that the evidence-based professional judgment of a public defender with respect to excessive caseloads is entitled to substantial deference by the courts. (See Comment to Guideline 7.)

There lies the problem: evidence based. For almost forty years now, public defenders have relied on the 1973 National Advisory Commission (NAC) Standards on caseload limits (e.g., no more than 150 felonies per attorney per year). These “standards” are concededly not evidence based, and thus do not account for changes in either technology or complexity.

While changes in technology since 1973 have clearly facilitated the lawyer’s task, changes in the complexity of criminal law since then—including entire new practice areas such as sexually violent offender commitment proceedings and persistent offender (“three strikes”) cases, increased complexity of juvenile defense work, and collateral consequences of convictions, including deportation—have dramatically impacted this practice in ways that demand far more time to ensure effective assistance of counsel. Nonetheless, while citing these dramatic post-1973 changes in the complexity of the task, in 2007 the American Council of Chief Defenders specifically found that the NAC Standards “have proven resilient over the past 34 years because they have been found to be consistent with manageable caseloads. . . .”

On the contrary, Norman Lefstein, former dean of Indiana University Robert H. McKinney School of Law and the reporter for the Eight Guidelines, concludes in his most recently published Executive Summary and Recommendations to Securing Reasonable Caseloads, available at http://www.indigentdefense.org, public defenders “should not rely upon” the 1973 NAC Standards precisely because they are admittedly not evidence based and do not reflect changes in technology and complexity.

Moreover, as Lefstein points out in Securing Reasonable Caseloads, supra, if public defenders will keep their time in tenths of an hour for the rest of their professional lives—admittedly a monumental culture change—there is available to them a methodology developed by the RAND Corporation, called a Delphi study. Securing Reasonable Caseloads contains a detailed description of this methodology (see id. at 142–46), which public defenders themselves—without the aid of expensive consultants—can implement to produce evidence-based analyses that will reliably demonstrate excessive caseloads for the courts and for the legislatures. As private law firms have known for decades, these information technology systems involve little more than Statistical Analysis 101 and Computer Science 101.

I can hear it now: “That’s not why I became a public defender!”

Let me respond with a story. I did not hear every great speech that former ABA President Chesterfield Smith gave, but the greatest one of his speeches that I did hear occurred early on a Saturday morning in Miami, Florida. Acting solely as a senior partner in Holland & Knight, Chesterfield caused a special meeting of the partners to be called. It was one of the few periods of time I saw him where he was not happy about the firm. It was January 1992, we had just come through another recession, the partners thought they were not making enough money, and they were mad as hell. Chesterfield began by telling them: “Your secretaries don’t like you. And there’s a good reason for that. You’re not very likeable people.”

Silence. He loved it.

“Your associates don’t like you either. And there’s a good reason for that. All those stupid memos you send them about billable hours! The billable hour is the stupidest idea I ever came up with! I thought it would help us be fairer to our clients. Never in my wildest imagination did I believe that we would one day use it to evaluate one another on the theory that one of them was equal to another.” Then he told them he knew how much every one of them was making and he thought they were all overpaid.

Chesterfield’s early career optimism about the potential that the billable hour had to contribute positively to our profession turned out to be one of the few times in his long career that he got it wrong. The billable hour had disastrous cultural consequences for what we then called a “profession,” but produced great gains in profit per partner for what we now call an “industry.”

But there are genuine benefits from timekeeping for a professional services organization like a public defender unrelated to the billable hour. Timekeeping produces the kind of database that is essential for budgeting and case management. For at least the last thirty years, we have known that what gets measured gets valued. Public defenders cannot take themselves out of this metrics discussion if they hope to establish a need for additional funding in both the legislatures and the courts.

Public defenders can (and should) share all of Chesterfield’s reservations about the culture produced by the billable hour, but they can (and should, indeed must) join the twenty-first century and develop metrics that can justify their need for adequate funding by producing reliable data that can establish that their caseloads are excessive. That’s a huge culture change, but it’s a change that has the potential to give life, meaning, and metrics to Strickland’s elusive performance standard.

The good news is that the metrics are not rocket science. In his Executive Summary and Recommendations, Lefstein has succinctly outlined the steps required to perform a Delphi study. (Delphi was a city in ancient Greece and the site of the Delphic oracle, the most important oracle in the classical Greek world; people consulted the Delphic oracle on everything from important matters of public policy to personal affairs.) Trust me, despite its daunting title, this methodology is not that complicated. At the risk of oversimplification, simply stated, the steps in this process are the following:

• Determine the number of work hours per year that defense lawyers have available.

• Determine the amount of time defense lawyers spend on each of the key tasks fundamental to protecting the constitutional rights of their clients in different kinds of cases (“case weights”); that is, what you are now doing.

• Conduct a web-based “sufficiency of time survey” to determine whether defense lawyers have sufficient time to devote to those key tasks; that is, what you are not doing.

• Gather the data and present them to a small number of your most experienced public defenders and several criminal defense lawyers from private practice (the Delphi group).

• Now that you know what you are doing and what you are not doing, the Delphi group can make quality case-weight adjustments to the preliminary case weights, providing a written rationale for any increase in attorney time; that is, what you should be doing.

• Provide senior management review of the recommended quality-adjusted workload standards. Again, any case-weight adjustments must have a written rationale.

The Delphi methodology was developed as a technique to be used when a problem does not lend itself to precise measurement and can benefit from collective judgments. The critical Delphi (professional) judgment here—what you should be doing—is that of experienced public defenders and private practitioners (the Delphi group) who are in a better position than anyone else in the nation to make that judgment. That’s the sophisticated part of the exercise, not the methodology.

Public defenders should read Lefstein’s fuller explanations of the Delphi method (see Securing Reasonable Caseloads, supra, at 142–46) and develop their own data systems implementing such a study. The results of the Delphi study should then form the basis for a protocol and a rule or a policy providing for case refusal when caseload maximums are reached. The ability to conduct such an analysis should now be an essential part of the intellectual capital of any public defender organization functioning in the second decade of the twenty-first century. Once in place, the study provides the evidentiary predicate for a motion to withdraw or refuse additional cases on the basis of conflict.

The Eight Guidelines provide the jurisdictional predicate for case refusal or withdrawal. It is now time for motion practice, and you are ready for the hearing when you file the motion. This is not a “land war in Asia.” Over time, adjustments will be made to the data and the study, probably annually, based on contemporaneous time records and the professional judgment of an experienced public defender organization. That evidenced-based judgment, the Eight Guidelines tell us, is entitled to substantial deference from the courts.

What would happen if public defenders had reasonable caseloads so that they could effectively perform the role of counsel in an adversary system of criminal justice? A recent study by the RAND Corporation sheds some light on this question.

One in five indigent murder defendants in Philadelphia is randomly assigned representation by public defenders while the remainder receive court-appointed private attorneys. The homicide unit of the Philadelphia public defender has relatively manageable caseloads and institutional expertise; the appointed solo private attorneys do not have nearly the same time (due to shockingly low capped fees) to devote to these cases. (For more detail, see http://www.rand.org.) RAND used this random assignment system to measure how defense counsel affect murder case outcomes. (For more detail, see id.)

The results of the study were stunning. Compared to appointed counsel, public defenders in Philadelphia reduce their clients’ murder conviction rate by nineteen percent and lower the probability that their clients receive a life sentence by sixty-two percent. Public defenders reduce overall expected time served by twenty-four percent. The RAND researchers concluded that if the 2,459 defendants in the sample represented by appointed counsel had instead been represented by public defenders, they would expect the time served by those 2,459 defendants to decrease by 6,400 years, which would reduce prison costs for these crimes by over $200 million.

Thus, the cultural revolution proposed here might be a first step toward not only significantly improving the performance of defense counsel, but also substantially reducing the costs of confinement for the world’s most overincarcerated nation.

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