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January 22, 2024 Public Defense

New ABA-Led Initiatives Highlight Need for Public Defense Reform

Mark Pickett

At this point, the crisis facing public defenders across the United States can hardly be denied. In recent years, public defense offices have faced extraordinarily high turnover rates due to low salaries and unmanageable caseloads. James Barron, An Exodus from the City’s Public Defense Offices, N.Y. Today (June 9, 2022); Matt Perez, Low Pay a Deterrent to Would-Be Public Defenders, Law360 (Oct. 17, 2021). Quantifying the extent of the crisis, let alone developing a plan to ensure public defense counsel are well-equipped to provide high-quality representation to their clients, has been more complicated. Two recent developments led by the American Bar Association, however, shed significant light on these issues: the National Public Defense Workload Study and the Revised Ten Principles of a Public Defense Delivery System.

The National Public Defense Workload Study (Workload Study), published in September 2023, is the result of a collaboration between the ABA Standing Committee on Legal Aid and Indigent Defense (SCLAID), the RAND Corporation, the National Center for State Courts, Arnold Ventures, and indigent defense expert Stephen F. Hanlon. Nicholas M. Pace et al., RAND Corp., National Public Defense Workload Study (Sept. 2023). The study is the first of its kind to seriously attempt to develop national workload standards using empirical methods. Researchers conducted a comprehensive review of the data and analysis contained in 17 state-level public defense workload studies conducted between 2005 and 2022. A panel of 33 expert criminal defense attorneys from around the country then used this information to reach a consensus on the average time necessary to provide effective representation that complies with modern ethical rules and practice standards in a variety of adult criminal cases. (Because of the unique nature of death penalty practice, capital cases were not considered.) The expert panel employed the Delphi Method, an analytic process in which multiple rounds of questionnaires are submitted to each panelist. Between each round of questions, experts are shown the anonymous aggregate results of the prior round, allowing them to adjust their future responses accordingly. The process is repeated until a consensus is reached.

The Workload Study’s methodology stands in sharp contrast to those developed by the National Advisory Commission on Criminal Justice Standards and Goals in 1973. Often referred to as the NAC Standards, this federally mandated commission’s caseload limits have been widely cited in the past decades, but the methodology it employed, if any, is unclear. According to Workload Study co-author Stephen F. Hanlon, the NAC Standards were decided off the cuff by a group of defense lawyers at bar jotting numbers on the back of a cocktail napkin. Robert Cohen, Attorney Seeks National Fix for Broken Public Defender System, St. Louis Post-Dispatch (Aug. 6, 2023). The release of the Workload Study should finally put to rest standards that were not only half a century out of date but based on little more than a rough guess.

The results of the 166-page Workload Study are dense, but the upshot is that, nationally, public defense providers need to at least triple their indigent defense counsel to provide a defense for their clients that is simply constitutionally adequate and in compliance with current ethical standards. While many public defense administrators are already well aware that their offices are severely understaffed, this study provides overwhelming empirical evidence that can be used to advocate for resources before policymakers who may not be as aware of the crisis. The study also provides a roadmap for states to conduct their own workload studies. While the public defense crisis affects the entire country, individual public defense systems could benefit from targeted studies that reveal shortcomings specific to their jurisdiction.

The release of the Workload Study came on the heels of the ABA’s adoption of the Revised Ten Principles of a Public Defense Delivery System. ABA Ten Principles of a Public Defense Delivery System (Aug. 2023). The Revised Principles were adopted as ABA policy by the House of Delegates at the ABA’s August 2023 Annual Meeting. The revision updates the original Ten Principles, which were adopted in 2002, for the needs of modern public defense systems.

The original Principles arose as the ABA developed detailed indigent defense policies in the decades following the Supreme Court’s decision in Gideon v. Wainwright, 372 U.S. 335 (1963), guaranteeing the right to appointed counsel to most adult criminal defendants. The Ten Principles provide a document that lays out the fundamental criteria for an effective public defense delivery system in a single policy. Since their inception, they have been designed to serve as a way “to provide experts and non-experts alike with a quick and easy way to assess a public defense delivery system and communicate its needs to policy makers.” ABA Ten Principles of a Public Defense Delivery System (Feb. 2002). They provide succinct standards on public defense independence, training, workloads, compensation, and support services. Policymakers have repeatedly looked to the Principles for guidance. In 2010, Attorney General Eric Holder called the Principles “the building blocks of a well-functioning public defender system.”

In the two decades since the adoption of the Principles, however, significant changes have occurred in criminal defense practice. New case law, the emergence of voluminous digital discovery, and changes in the use of forensic evidence, for instance, have all changed the demands placed on the average public defense provider. Moreover, new information and data, such as those found in the Workload Study and related state studies, have shed more light on the needs of public defense offices. Given these changes, ABA SCLAID formed the Ten Principles Revision Committee in 2018, comprised of a diverse group of public defense leaders, academics, and experts. Although the committee’s work was delayed by the COVID-19 pandemic, its members worked diligently to reach a consensus on the Revised Principles, drawing on empirical evidence, emerging best practices, and their own experiences representing clients. The committee also consulted with leading national public defense advocacy organizations the National Legal Aid and Defender Association, the National Association of Criminal Defense Lawyers, the National Association for Public Defense, and the Sixth Amendment Center to ensure that as many perspectives as possible were considered in the final draft. The result is a succinct policy document that retains the core commitments of the original Principles, while updating them for the modern age.

Key changes in the Revised Principles include a new principle on data collection and transparency and new language on the importance of nonlawyer professionals, such as investigators, social workers, and experts, to the provision of high-quality, holistic defense. The policy was also updated to reflect a deeper understanding of the need for systematic evaluation of defense lawyers, as well as the need for specialized training and cultural competency. Principle 3, which relates to workloads, was substantially revised to reflect the results of the Workload Study. The Revised Principles no longer cite to the old NAC Standards.

Both the National Public Defense Workload Study and the Revised Ten Principles of a Public Defense Delivery System provide powerful tools for public defense administrators and advocates to push policymakers for the resources they need to provide an adequate defense. The ABA’s nonpartisan voice ensures that these documents represent not an activist’s pipe dream, but the empirically supported view of experts on the minimum requirements of effective defense. As jurisdictions look to extricate themselves from the public defense crisis, these tools should be central to their strategy.

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Mark Pickett

Chief Counsel on Indigent Defense

Mark Pickett is the ABA’s Chief Counsel on Indigent Defense. He previously represented indigent clients facing the death penalty in state post-conviction and federal habeas corpus proceedings in North Carolina.