The most vexing and persistent problem in public defense is the excessive caseloads that interfere with the ability of defense programs to implement effectively the Sixth Amendment right to counsel. When caseloads are excessive, indigent defendants are at serious risk of harm. The predicament is much like a cardiologist who must complete 10 surgeries every day. At first the cardiologist will try to take the necessary time with each patient, extending the day to try to perform at a top level despite incredible time constraints. But eventually she will have no choice but to cut corners. The care of certain patients will be sacrificed to create more time for others.
Numerous national reports have detailed the crisis in public defense, citing specifically the problems attendant to immense caseloads. (See, e.g., Gideon Undone: The Crisis in Indigent Defense Funding (ABA SCLAID 1982); Nat’l Right to Counsel Comm., Justice Denied: America’s Continuing Neglect of Our Constitutional Right to Counsel (Constitution Project 2009).) Public defenders have faced excessive caseloads for decades, and all over the country they are forced to cut corners.
This spring, a number of public defender programs took significant steps to reduce their caseloads. From walking out of their offices in protest to filing emergency court motions, public defenders are desperately trying to explain the ethical and constitutional implications of this overburdening and seek caseload reductions.
Oregon’s Public Defender Walk-Out
In Oregon, the Office of Public Defense Services (OPDS) contracts with public defense providers to represent individuals who cannot afford counsel in criminal cases. In January 2019, the Sixth Amendment Center released a report on the right to counsel in Oregon. The report suggested that the contracting methods used by the OPDS stress volume above quality and that OPDS cannot and does not provide appropriate oversight or quality control. Under this approach, many public defenders have excessive workloads. The report noted, “[a]ccording to OPDS records, one Metropolitan Public Defender Services attorney . . . handled 1,265 misdemeanors in 2017.” Assuming the attorney worked 40 hours per week for all 52 weeks of the year, the attorney had approximately 1.5 hours to devote to each case, including meetings with the client, reviewing discovery, conducting an investigation, researching legal issues, speaking to witnesses, negotiating pleas, discussing plea offers with the client, and accepting a plea or taking the case to trial.
Following the release of this report, a bill to reform the indigent defense system in Oregon was introduced in the Oregon Legislative Assembly. HB 3145 would create an independent Public Defense Services Commission, revise the contracting practices, establish mandated data collection, create full-time public defense offices, and require the Commission to adopt reasonable caseload standards and review those standards every four years.
On June 10, when the bill appeared stuck, a group of public defenders in Portland walked off their jobs to go to the legislature in support of reform. Charlie Peirson, an attorney with Multnomah Defenders Inc., told Oregon Public Broadcasting: “The state of public defense is in crisis; we are really hurting; our caseloads have grown since I’ve been doing this and the senior lawyers all say the same thing. We have gone from not knowing how much longer we can do this, to knowing we can’t do it much longer.”
Unfortunately, shortly after this, the Republicans in the Oregon legislature went into hiding to avoid a vote on a climate change bill. The public defense reform bill did not receive a vote before the regular session terminated on June 30.
Wyoming Public Defenders Stop Accepting Cases
In January, the Chief Public Defender for the State of Wyoming, Diane Lozano, testified before the legislature’s Joint Appropriations Committee that without additional attorneys, her offices would have to start refusing appointments. “The Public Defender’s Office is essentially in an ethical and constitutional crisis,” Lozano told the Committee, noting that her attorneys were already at 100 percent of the recently adopted caseload standards. The Wyoming legislature, following the governor’s recommendation, gave the Public Defender’s Office less than half the increase in funding requested.
At the same time, the Public Defender’s Office began to experience a turnover crisis in some counties. Attorneys departed their positions, and the vacancy announcements attracted few qualified applicants.
In May, the Public Defender informed the courts in two of the state’s busiest counties (Campbell and Natrona Counties) that the public defenders could no longer accept misdemeanor cases due to excessive caseloads. In one of the counties, the Chief Defender reported that the lawyers had an average of 168 percent of the maximum workload allowed by the office’s standards, which are based on the 1973 National Advisory Commission standards.
In response, a judge in Campbell County held the Chief Public Defender in contempt and began charging her $1,500 per day. The State Public Defender’s Office filed a petition with the Wyoming Supreme Court requesting a review of the contempt order.
Hampden County, Massachusetts, Lacks Sufficient Lawyers
In Hampden County, Massachusetts, public defense counsel is provided by appointment through the Committee for Public Counsel Services (CPCS). Earlier this year, CPCS found itself without qualified attorneys to assign. Faced with unrepresented defendants, Springfield District Court Judge John Payne issued an order requiring CPCS to provide lawyers every day to accept appointment of cases. In response, CPCS filed an emergency petition with the Supreme Judicial Court to ask that Judge Payne’s order be vacated. The petition explained that CPCS attorneys all currently exceed their caseload limits and supervision requirements and that CPCS cannot comply with the order without violating both ethical rules and constitutional norms. The documents filed with the court assert, “[e]very attorney in the Springfield office has more cases than they can competently handle.”
Baton Rouge, Louisiana, Defender Files Caseload Restriction Petition
Mike Mitchell, the Chief Public Defender in East Baton Rouge Parish, Louisiana, recently filed a petition with a judge in the 19th Judicial District asking that the public defenders in the court section be permitted to withdraw from some of their cases and decline future appointments. A ruling is expected this fall.
Missouri Public Defender Continues to Seek Caseload Reductions
In January 2018, the Missouri State Public Defender (MSPD) in St. Louis filed a Motion Requesting Conference to Discuss Caseload Issues. The MSPD contended that the caseloads for all public defenders in the District 21 trial office were excessive. After holding a conference and gathering evidence, the presiding judge in St. Louis County issued an order in March 2018, finding that the attorneys had an excessive caseload and were at risk of violating their ethical rules. The order required the MSPD office to “establish a protocol . . . by which they shall determine what the maximum caseload capacity is, for each of their individual attorneys for a date certain.” The order also tasked the court with developing alternative plans for accused individuals placed on a waiting list for counsel.
This spring, the head of the MSPD office in Kansas City raised excessive caseload concerns. At a hearing held in May, the head of the office reported that there are now nearly 1,000 clients eligible for public defense services who are on a “postponement list.”
At the same time, Dalton v. Barrett, a statewide class-action lawsuit brought by the ACLU, alleged that defendants across the state are denied adequate public defense services. A settlement has been proposed in this suit that would establish caseload limits on public defenders throughout Missouri, but it is opposed by the state’s attorney general. The federal judge overseeing the case will have to approve the settlement. If it is not approved, the case is expected to go to trial in the fall of 2019.
Public defenders across the country are taking critical steps to avoid or address excessive caseloads. A survey of this activity demonstrates that two items are critical to these efforts: (1) data collection, which allows the program to demonstrate how many cases each attorney has, and (2) a standard to which the current data can be compared. At the heart of the efforts in Missouri and Louisiana are ABA SCLAID’s jurisdiction-specific workload studies. In other jurisdictions, the efforts rely on standards adopted by state statute or commission. In jurisdictions where any state-specific standard is lacking, public defenders are relying on the 1973 National Advisory Commission standards. The increase in public defender programs collecting internal data, as well as increased efforts to set caseload standards based on reliable data, have empowered public defense programs to seek caseload reductions or increases in resources to avoid excessive caseloads. The next year will tell us a great deal more about how best to make these efforts successful.