In early 2022, the American Bar Association Standing Committee on Legal Aid and Indigent Defense (ABA SCLAID), together with consulting firm Moss Adams LLP, released two reports on public defender workloads—one on Oregon, the other on New Mexico. The reports reflect over two years of study of the jurisdictions’ current caseloads and staffing, as well as a Delphi study in each state, which is used to arrive at standards reflecting the average amount of time an attorney should spend to meet the constitutional threshold of effective assistance of counsel, i.e., provide reasonably effective assistance of counsel pursuant to professional norms.
In each jurisdiction, ABA SCLAID concluded that the public defense provider has only about one-third of the attorneys needed to adequately represent their clients in trial courts. The studies reflect the ongoing crisis in public defense, a crisis in which attorneys are routinely pushed to take on far more cases than they can reasonably represent. This requires public defenders either to triage, focusing on a select group of clients at the expense of the others, or to spend less time than they should on every client’s case. Without proper public defense representation, justice systems falter, risks of error increase, and public trust in the system suffers.
Both New Mexico and Oregon are now grappling with findings of the ABA SCLAID workload studies, considering what steps they must take to improve representation for their clients. But these issues are not limited to jurisdictions in which they have been quantified. Across the country, public defense providers are wrestling with how to address their overwhelming caseloads, and in most places the problem has become substantially worse during the COVID-19 pandemic.
In Oregon, the Office of Public Defense Services (OPDS) is responsible for establishing and maintaining the public defense system. OPDS provides counsel to individuals in adult criminal, juvenile delinquency, juvenile dependency, and civil commitment proceedings at the trial level, as well as in direct appeals from these cases. To do this, OPDS contracts with providers of different types—public defender offices, law firms, consortia, nonprofit organizations, and individual attorneys. Oregon is the only state that provides trial-level counsel primarily through a contracting system. As of November 2021, OPDS contracts reflected 592 attorney FTEs providing public defense services in adult criminal or juvenile cases.
To determine caseload standards for Oregon, the study employed the Delphi method—an iterative survey process designed to develop consensus of expert opinion. In this case, the experts were criminal defense practitioners in Oregon who were asked detailed questions regarding the times required to complete different attorney tasks in different types of adult criminal and juvenile cases. Throughout the Delphi process, the attorney participants were asked to refer to the ABA Criminal Justice standards, the Oregon Rules of Professional Responsibility, and state standards to define reasonably effective assistance of counsel. The Delphi process took roughly 18 months to complete, including identifying jurisdiction-specific case types and case tasks, assembling expert panels, distributing the online surveys, compiling results, and holding the in-person final round. Through this process, caseload standards, in the form of average hours per case type, were identified for Oregon. The below table shows the Oregon caseload standards for adult criminal cases:
Applying these standards to the historical average annual caseload in Oregon by case type, the study identifies the number of attorney hours Oregon needs to provide reasonably effective assistance to clients. Then, that number is divided by the number of hours an attorney has during a year to devote to casework to determine the number of attorney FTEs needed. Notably, in ABA SCLAID caseload studies, absent clear data on time needed for administrative or supervisory tasks, travel time, or other non-casework, each attorney FTE is assumed to spend 2,080 hours on casework, which equate to 8 hours per day, 5 days per week, 52 weeks per year. In this way, the estimate of FTEs needed is extremely conservative.
Based on the Delphi study, OPDS is deficient 1,296 attorney FTEs for its adult criminal and juvenile caseloads.
In New Mexico, public defense is overseen by an independent commission, the New Mexico Public Defender Commission, and administered by the Law Offices of the State Public Defender of the State of New Mexico (LOPD). LOPD maintains public defender offices in 13 counties. It also administers a contact program, which provides primary public defense services in counties without a public defender office and secondary public defense services in those jurisdictions with a public defender office.
The New Mexico public defense workload study followed the same methodology as the Oregon study, analyzing historical caseloads and staffing to determine current available attorney FTE in the system and the number of cases per year, by case type, in which those attorneys needed to provide representation. As of March 2021, LOPD had 295 FTE attorneys available to represent individuals in the trial courts (adult criminal and juvenile). This included 183 FTE public defenders and 112 FTE contract attorneys. The Delphi study in New Mexico produced the following caseload standards for trial cases in adult criminal courts:
Based on historical caseloads by case type, the study concluded that New Mexico needed an additional 602 attorney FTEs to provide reasonably effective assistance of counsel pursuant to professional norms.
Put another way, New Mexico currently has only 33 percent of the attorney FTE needed to provide reasonably effective representation. Or, a Chief Public Defender Bennet Baur stated in a blog post for the National Association for Public Defense, “each legal team member is straining under logistic and emotional weight three times what they can sustainably and ethically hold.”
New Mexico and Oregon are not outliers. Indeed, by reputation, they are far from the worst public defense systems in the country. They are governed by independent commissions, organized on a state level, and care enough to study their caseloads. It is not surprising then that grossly excessive public defense caseloads exist elsewhere and likely most places. Indeed, ABA SCLAID has conducted public defense workload studies in seven states since 2014. In each jurisdiction in which the historical caseload and staffing could be gathered with sufficient accuracy to conduct a deficiency analysis, the public defense system was severely deficient. The worst was Louisiana, which had, at the time of the study in 2017, only 21 percent of the attorneys need to handle the projected caseload.
The impact on clients is dire. As a public defender in Deschutes County, Oregon, described to the Weekly Source, “What we’re doing is just triage. When you’re successfully defending one person, the vast majority of your other clients are not getting attention; they’re not getting calls back; you’re not doing investigation; everything stops[.]”
And the situation is worsening because of the COVID-19 pandemic. ABA SCLAID workload studies do not account for backlogs. Instead, they assume that the annual new case rate mirrors the annual disposition rate; in other words, a case is closed for every new case opened. In most jurisdictions, however, COVID has stalled criminal trials and slowed other dispositions, resulting in a massive accumulation of open cases. For each of these open cases, a public defender must, at a minimum, regularly communicate with each client, continually seek to review and address ongoing detention and/or release conditions, prepare for and attend status hearings, and seek to keep track of witnesses and other critical evidence. Doubling or tripling the number of open cases, as has happened during the COVID pandemic in many jurisdictions, has an enormous impact on workload, one that cannot be measured or addressed by studying or limiting the number of new cases acquired in a year.
Crushing caseloads also create a self-perpetuating cycle. The caseloads cause attorneys to leave, which causes a further increase in the caseloads of remaining attorneys. The public defender in Gainesville, Florida, put it bluntly during a recent legislative session during which both public defenders and state attorneys were seeking salary increases: “We are in crisis. It is critical. . . . The system is about to implode if we cannot hire new lawyers and keep the lawyers that we have.”
The COVID backlog may be the straw that finally breaks the camel’s back. We are seeing this in Minnesota, where public defenders voted to strike; in Arkansas and New Hampshire, where public defenders are seeking emergency funding; and in Missouri and Wisconsin, where they have resorted to wait lists for counsel.
Jurisdictions in which public defenders face overwhelming caseloads must take immediate steps to reduce those caseloads to avoid not only harm to clients, but to the entire justice system. As ABA President Reginald Turner said upon the release of these studies, “ABA policy and well-established legal principles support public defenders in assertively seeking relief from excessive workloads. Courts, in turn, should provide relief when excessive caseloads threaten to lead to representation lacking in quality or to the breach of professional obligations. To do otherwise not only harms individual defendants but our entire justice system.”
In Oregon and New Mexico, efforts to improve the situation are underway. In New Mexico, the public defender has found the report “motivational.” He stated that LOPD plans to return to the legislature with the report as support for an increased budget request. In Oregon, the response was even more immediate. Mere days after the release of the Oregon report, one of the largest public defense providers announced that it could no longer accept misdemeanor or felony cases from one of the large suburban Portland counties due to unsustainable workloads. The Oregon Legislature quickly agreed to allocate $12 million in emergency funding to OPDS. A legislative working group was then formed to research and propose a long-term solution to the public defense crisis in Oregon. Extensive reform is needed, but, Oregon and New Mexico, at least, have made a start.
NOTE: The New Mexico Project and Oregon Project reports are available on the ABA SCLAID website.
