“I have great respect for public defenders. But what if the public defender has 100 cases? What if the public defender is only a public defender in name? You’ve heard [people] talk about my record as a criminal defense attorney. Let me tell you something: if I had 100 cases, I’d have to plead ’em guilty.”
—Gerry Spence, The Plight of the Public Defender, Address to the Trial Lawyers College, Dubois, Wyoming (2014).
That figure—100 cases—is troubling. Yet few public defense attorneys have only 100 cases. In Rhode Island, the average is more than 1,700 cases per year; in upstate New York, one attorney represented over 2,200 clients; and in Illinois, a public defender handled 4,000 cases during the course of a year. Litigators understand heavy workloads. But what investigation, research, or client communication could you do with 100 cases, much less 4,000? Would you ever try a case, let alone be prepared to do so?
Today, 97 percent of federal criminal defendants and about 95 percent of state criminal defendants plead guilty. This is not to say that excessive workloads alone have caused the high rate of guilty pleas. Other factors, such as changes in sentencing laws, have contributed. Nor do we vilify guilty pleas—they are a necessary option for many defendants and a vital tool for attorneys with sufficient time and resources. Rather, a practical examination of this issue shows that excessive workloads have helped create a dangerous meet-and-plead system of public defense.
The U.S. Supreme Court recognized a Sixth Amendment right to counsel—albeit in limited circumstances—in two mid-20th-century cases. In Powell v. Alabama, the Supreme Court held that criminal defendants have a right to counsel in capital cases and declared that “[t]he right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel.” 287 U.S. 45, 68–69 (1932). Six years later, the Court recognized the right to counsel in federal cases. Johnson v. Zerbst, 304 U.S. 458 (1938). But in Betts v. Brady, 316 U.S. 455 (1942), the Court declined to extend that right to the states.
Then, in 1961, 50-year-old drifter Clarence Earl Gideon was arrested for taking beer and jukebox money from a pool hall. He was denied counsel and cobbled together a pro se defense. Gideon was convicted of breaking and entering and was sentenced to five years’ imprisonment. He filed a five-page, handwritten petition for writ of certiorari, which the Supreme Court granted. Ultimately, the Supreme Court held that the Sixth Amendment, applicable via the Fourteenth Amendment, required states to appoint counsel to indigent felony defendants. Gideon v. Wainwright, 372 U.S. 335 (1963).
Writing for a unanimous Court, Justice Hugo Black stated that it is an “obvious truth” that “in our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him.” Id. at 344. He declared that “lawyers in criminal courts are necessities, not luxuries.” Id. The Court reversed Gideon’s conviction and remanded the cause. On retrial, with the assistance of counsel, Gideon was acquitted.
The Supreme Court subsequently recognized the right to appointed counsel in juvenile delinquency proceedings, see In re Gault, 387 U.S. 1 (1967); in proceedings for misdemeanors resulting in imprisonment, see Argersinger v. Hamlin, 407 U.S. 25 (1972); in first appeals as a matter of right, see Douglas v. California, 372 U.S. 353 (1963), and Halbert v. Michigan, 545 U.S. 605 (2005); and in proceedings resulting in a suspended sentence that could lead to imprisonment, see Alabama v. Shelton, 535 U.S. 654 (2002).
The Effects of Gideon
The number of defense attorneys and defender offices quickly multiplied in Gideon’s wake. Three delivery models emerged: (1) full-time public defender offices underwritten by the state or county; (2) court-administered plans involving appointment of private counsel to an individual defendant for a flat fee or reduced hourly rate with a cap; and (3) contract delivery systems, in which lawyers bid to provide counsel on an annual basis to all indigent defendants in a given jurisdiction for a total amount set in advance, with such contracts typically awarded to the low bidder. See, e.g., N.Y. County Law art. 18-B (1965) (discussing all three models). The first model, generally considered the best and most effective, is chronically underfunded and understaffed; the second is relatively expensive and unsustainable, both in terms of meeting the demand and the availability of qualified lawyers willing to participate; the third is rife with conflicts of interest and less than zealous representation.
Providing an attorney who fails to investigate, research the law, file motions, or communicate with clients does little good. Courts and criminal law organizations therefore turned their attention to the quality of indigent defense.
In the decade after Gideon, the Supreme Court emphasized that “the right to counsel is the right to the effective assistance of counsel.” McMann v. Richardson, 397 U.S. 759, 771, n.14 (1970). To determine when counsel is ineffective, the Supreme Court embraced a retrospective two-prong test. Strickland v. Washington, 466 U.S. 668 (1984). Under the “performance” prong, the defendant must show that “counsel’s representation fell below an objective standard of reasonableness” based on “prevailing professional norms.” Id. at 688. Under the “prejudice” prong, the defendant must show that there is “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694. In addition, the reviewing court “must be highly deferential” to defense counsel. Id. at 689. Given its retrospective application and the burden of proving prejudice, few criminal defendants succeed on Strickland claims. There is a limited exception to the requirement that defendants must prove prejudice, where there is an “actual breakdown of the adversarial process.” See United States v. Cronic, 466 U.S. 648 (1984). Yet, successful Cronic claims are rarer still.
The “prevailing professional norms” discussed by the Supreme Court in Strickland have been developed by a number of professional organizations. The ABA, the National Legal Aid and Defender Association (NLADA), and the National Association for Public Defense (NAPD) have promulgated standards to guide lawyers and judges, and have issued a number of ethics opinions concerning professional responsibilities.
The ABA launched its Criminal Justice Standards Project the year after Gideon. The standards produced by the project have been highly influential and are regularly cited by courts nationwide. See, e.g., Strickland, 466 U.S. at 688 (“Prevailing norms of practice as reflected in American Bar Association standards and the like, e.g., ABA Standards for Criminal Justice . . . , are guides to determining what is reasonable, but they are only guides.”). The ABA’s Defense Function Standards have evolved over several decades and require the performance of a considerable amount of work on behalf of a client an attorney undertakes to represent. The attorney must:
- investigate the facts (Standard 4-4.1);
- research the law (Standard 4-4.6);
- communicate with clients (Standards 4-3.1, 4-3.3, 4-3.9, 4-5.1);
- negotiate with prosecutors (Standards 4-6.1, 4-6.2, 4-6.3);
- file appropriate motions (Standards 4-5.2, 4-7.11, 4-8.1); and
- prepare for court (Standard 4-4.6).
ABA Standards for Criminal Justice: Prosecution and Def. Function (4th ed., 2015) [hereinafter ABA Def. Function].
An attorney must complete each of these tasks regardless of workload or the defendant’s desire to plead guilty. See ABA Def. Function Standards 4-4.1, 4-6.1(b).
As the scope of the right to counsel has expanded, so, too, have defender workloads. Data can be hard to come by in America’s patchwork of public defense systems. Yet there is ample evidence that we have an excessive workload problem. There is, in the words of Norman Lefstein, dean emeritus of the Indiana University Robert H. McKinney School of Law, “abundant evidence that those who furnish public defense services across the country have far too many cases,” and this problem has “existed for decades.” Norman Lefstein, Securing Reasonable Caseloads: Ethics and Law in Public Defense 12 (ABA 2011).
In Kentucky in 2007, public defenders each handled over 400 cases, a mix of felonies and misdemeanors. Nat’l Ass’n of Criminal Def. Lawyers, Minor Crimes, Massive Waste: The Terrible Toll of America’s Broken Misdemeanor Courts 21 (2009) [hereinafter NACDL]. Rhode Island public defenders averaged 1,756 cases—again, a mix of felonies and misdemeanors—in 2009. Lefstein, supra, at 18.
Workloads tend to be even worse among attorneys who handle misdemeanors. In Chicago, Atlanta, and Miami, the average defender handles over 2,000 misdemeanors annually. NACDL, supra, at 9, 21. That’s more than one case every hour. Similar numbers can be seen across the United States. In Dallas, attorneys handle more than 1,200 cases per year; in Arizona, 1,000; in New Orleans, a staggering 19,000 cases.
Grossly excessive misdemeanor workloads often stem from public defense triage. Cash-strapped defender offices with far too many cases naturally devote greater time and resources to more serious felonies: homicides, sexual assaults, violent offenses. See, e.g., RubinBrown, The Missouri Project: A Study of the Missouri Public Defender System and Attorney Workload Standards 24 (2014) (on average, Missouri defenders devoted 84.5 hours to homicide cases and 2.3 hours to misdemeanors). Consequently, misdemeanors and low-level felonies often receive short shrift.
While misdemeanors result in shorter sentences, the stakes are still quite high. Misdemeanors account for 70 to 80 percent of criminal cases. Thus, more clients are affected by excessive misdemeanor workloads. In addition, the consequences of misdemeanor conviction—jail time, probation, fines and fees, denial of employment, denial of professional licenses, student loan ineligibility, loss of housing or food stamps, and deportation—are significant.
Unsurprisingly, excessive workloads diminish the quality of legal representation. Initially, they incentivize guilty pleas. When an attorney has only a few hours or minutes to devote to a case, basic defense tasks—investigating the facts, researching the law, communicating with the client, filing motions—are quickly jettisoned. Without these, trial is, for all intents and purposes, impossible, not to say inadvisable, for the client and unethical for the lawyer.
Indeed, without these, an ethical and constitutional plea bargain is impossible. Still, attorneys engage in meet-and-plead dispositions in courtrooms across the country. Lawyers who once scoured the facts and law for viable defenses now look for reasons to quickly plead. In New York City in 2000, for example, almost 70 percent of misdemeanants pleaded at first appearance. NACDL, supra, at 8.
For the overburdened attorney, the immediate upside of “meet-and-plead” includes speedy resolution of cases and a concomitant, if short-lived, reduction in workload. The case file is closed, client contact and communication are no longer necessary, and the time and effort involved in a lengthy trial are averted. Pleas also offer greater insulation from appellate review and stave off ineffectiveness claims because defendants who plead guilty waive certain constitutional rights and routinely assert their satisfaction with the advice of counsel as part of the plea colloquy. In addition, in some jurisdictions, defendants must move to withdraw their pleas—often a high burden—before they are allowed to appeal.
However, the disadvantages are far greater for the attorney and the client. Whatever short-term relief may be gained by attorneys participating in this sort of assembly-line justice, they become disillusioned and suffer burn out. It runs counter to the ideals they learned in law school and the aspirations with which they began the practice of law. Their reputations and licenses are put at risk. It is a difficult personal and professional burden to carry. Most importantly, clients are being systematically stripped of their constitutional and ethical rights to the effective assistance of counsel.
As to the last point, the story of defense attorney Robert Surrency of Greene County, Georgia, described by Amy Bach in her book Ordinary Injustice: How America Holds Court (Picador 2009), is illustrative. For 17 years, Surrency held an indigent defense contract with the county. He had a high workload that included many serious felonies. Surrency routinely met with clients only in courthouse hallways, communicating plea offers and encouraging acceptance. In four years, with 1,493 cases, he went to trial only 14 times, a 99 percent plea rate. Surrency became the archetypal meet-and-plead indigent defense attorney—heavy workloads, no investigation or research, minimal client contact, all careening toward the inevitable guilty plea.
While Surrency’s tale is all too common, his conduct is a far cry from the ABA standards, which require full investigation and research prior to recommending a guilty plea. See ABA Def. Function Standard 4-6.1(b) (“In every criminal matter, defense counsel . . . should not recommend to a client acceptance of a disposition offer unless and until appropriate investigation and study of the matter has been completed.”); ABA Standards for Criminal Justice: Pleas of Guilty Standard 14-3.2(b) (3d ed. 1993) (including nearly identical language).
The problem is well defined: Excessive workloads helped create a system of meet-and-plead public defense. Increasingly, we know the solution, and there is reason for hope. Impact litigation is slowly changing the face of public defense. Specifically, using policies, standards, and workload studies, public defense attorneys have refused additional cases and, when faced with resistance, have successfully litigated excessive workload issues, often with the help of pro bono counsel from private firms. The highest courts in Missouri, Florida, and New York, and a federal district court in Washington have each issued groundbreaking decisions supporting the right of public defenders to refuse to take on additional cases in the face of excessive workloads and forcing courts, prosecutors, and public defenders to work together to secure reasonable workloads for public defenders. As these illustrate, such important changes have come not from public defense attorneys alone, but from collaborations with judges and the private bar.
Excessive workloads are not a recent phenomenon. Neither are the attempts of the organized bar to address excessive workloads with policies and standards. In 1973, just 10 years after Gideon, the National Advisory Commission on Criminal Justice Standards and Goals (NAC) attempted to limit public defense caseloads, suggesting the following annual attorney caseload caps:
The “NAC Standards” (often mistakenly called the “ABA standards”) are frequently cited and have been adopted in several jurisdictions across the nation. Although the NAC Standards are now dated and their value somewhat limited by the anecdotal evidence on which they were based, they served their purpose at the time and have improved the workload situation in many defender programs over the years. But more current, jurisdiction-specific, and data-driven workload studies are now needed and preferable to continued reliance on the NAC Standards, given the dramatically increased complexity of criminal law and practice today. Advances by law enforcement in technology and forensics; the wide array of collateral consequences to arrest and conviction that must be taken into account; the proliferation of mandatory minimum sentences, specialized courts, and politically driven, redundant legislation in response to the crime du jour—all these factors and more demand new thinking about what kinds of workloads are truly realistic.
The ABA, NLADA, and NAPD have also addressed excessive workloads, though unlike the NAC, they have not set caseload limits. The ABA Model Rules of Professional Conduct and several ethics opinions interpreting those rules are perhaps the most prominent standards governing excessive workloads. See, e.g., ABA Comm. on Ethics & Prof’l Responsibility, Formal Op. 96-399, at 14 (1996) (“A lawyer’s obligation to provide competent and diligent representation under Model Rules 1.1 and 1.3 imposes a duty to monitor workload, a duty that requires declining new clients if taking them on would create a ‘concomitant greater overload of work.’”); ABA Comm. on Ethics & Prof’l Responsibility, Formal Op. 06-441 (2006). The latest edition of the ABA Defense Function Standards, approved February 2015, also discusses excessive workloads at considerable length and includes standards for institutions:
(a) Defense counsel should not carry a workload that, by reason of its excessive size or complexity, interferes with providing quality representation, endangers a client’s interest in independent, thorough, or speedy representation, or has a significant potential to lead to the breach of professional obligations. A defense counsel whose workload prevents competent representation should not accept additional matters until the workload is reduced, and should work to ensure competent representation in counsel’s existing matters. Defense counsel within a supervisory structure should notify supervisors when counsel’s workload is approaching or exceeds professionally appropriate levels.
(b) Defense organizations and offices should regularly review the workload of individual attorneys, as well as the workload of the entire office, and adjust workloads (including intake) when necessary and as permitted by law to ensure the effective and ethical conduct of the defense function.
(c) Publicly-funded defense entities should inform governmental officials of the workload of their offices, and request funding and personnel that are adequate to meet the defense caseload. Defense counsel should consider seeking such funding from all appropriate sources. If workload exceeds the appropriate professional capacity of a publicly-funded defense office or other defense counsel, that office or counsel should also alert the court(s) in its jurisdiction and seek judicial relief.
ABA Defense Function Standard 4 1.8; see also ABA Standards for Criminal Justice: Providing Defense Services Standard 5-5.3(a) (3d ed. 1992) (“Neither defender organizations, assigned counsel nor contractors for services should accept workloads that, by reason of their excessive size, interfere with the rendering of quality representation or lead to the breach of professional obligations.”).
Excessive workloads have had such a deleterious effect on public defense that the ABA promulgated an entire set of standards on this topic alone. ABA, Eight Guidelines of Public Defense Related to Excessive Workloads (2009). The guidelines build on earlier ABA standards, listing ways for public defense providers to avoid or end excessive workloads. These include reassignment of cases to private lawyers, urging prosecutors to forgo criminal charges when possible, seeking emergency resources, notifying courts that the provider is unavailable for appointment, filing motions to stop assignments or withdraw from cases, and resisting or appealing judicial directions that interfere with the attorneys’ professional and ethical duties. Id., Guidelines 5–8.
In 2007, the American Council of Chief Defenders, an NLADA affiliate, released its Statement on Caseloads and Workloads (Aug. 24, 2007). The statement embraced the NAC Standards as a caseload ceiling but recognized that many jurisdictions would require lower caseload limits. Similarly, this year, the NAPD released its Statement on the Necessity of Meaningful Workload Standards for Public Defense Delivery Systems (Mar. 19, 2015). The statement advocates that public defense providers “develop, adopt, and institutionalize meaningful workload standards.” The statement also emphasizes that the NAC Standards are “absolute maximums” and should be supplemented with workload studies and ongoing timekeeping.
Policies and standards are not the only tools in the impact litigator’s arsenal. Workload studies have provided much-needed data regarding excessive public defense workloads. While this data may be used for funding requests, when that fails, workload studies serve as an excellent basis for litigation. Recently, the ABA, in partnership with the accounting firm RubinBrown, re-imagined workload studies. See RubinBrown, supra, at 24. Under the Missouri Project model, two events are used to assess workloads and propose new rules: a time study and a Delphi process. In the time study, assistant public defenders commit to tracking their time in fractions of an hour for the remainder of their careers. Using six months of data, the ABA and an accounting firm create an accurate picture of public defender workloads. Then, using a Delphi process, a method developed by the RAND Corporation, they leverage expert knowledge to develop state-specific workload standards. The gap between the time study (what is) and the workload standards (what should be) demonstrates the need for additional funding. The Missouri Project is currently being replicated in several other states.
In recent years, impact litigation has led to remarkably favorable decisions in Washington, Missouri, Florida, and New York. In 2011, the American Civil Liberties Union of Washington, assisted by Perkins Coie and others, filed a class action suit in federal court alleging that the cities of Mount Vernon and Burlington, Washington, systematically deprived defendants of the effective assistance of counsel. Specifically, they asserted that the attorneys had excessive caseloads—nearly 1,000 misdemeanors per attorney per year—that prevented them from delivering quality representation. In 2013, following a two-week trial, the court found that “[a]dversarial testing of the government’s case was so infrequent that it was virtually a non-factor in the functioning of the Cities’ criminal justice system” and that this was “the natural, foreseeable, and expected result of the caseloads the attorneys handled.” Wilbur v. City of Mount Vernon, 989 F. Supp. 2d 1122, 1124 (W.D. Wash. 2013). The court found the cities liable under 42 U.S.C. § 1983 and ordered them to employ a supervisor to ensure compliance with constitutional standards and to collect detailed data on the practices of the public defense providers. Id. at 1134–35.
In 2008, Missouri approved an administrative “caseload protocol” that allowed the Missouri public defender to decline appointments once it reached a maximum allowable caseload. In 2010, the public defender reached that ceiling and declared the office unavailable to accept further appointments. Nevertheless, the trial court continued to appoint the office to cases. The Missouri Supreme Court issued a preliminary writ prohibiting further action and appointed a special master to determine whether the caseload protocol had been followed. State v. Waters, 370 S.W.3d 592, 600–01 (Mo. 2012). The special master determined that the parties followed the protocol, but they still failed to reach an agreement. Id. at 602. The trial court judge petitioned the Missouri Supreme Court for a modification of the court’s preliminary writ, but relying on the ABA Eight Guidelines, the Missouri Supreme Court held that the judge had exceeded his authority by assigning the public defender in violation of the protocol. Waters, 370 S.W.3d at 612. The court further held that, in the future, judges, prosecutors, and defenders should work together to avoid the need for the public defender to declare unavailability. Id.
In 2008, when the attorneys in his office were saddled with an average of 500 cases, the public defender for Florida’s Eleventh Judicial Circuit filed motions to withdraw from 21 noncapital felony cases. The defender argued that he had a conflict of interest where excessive caseloads prevented the office from executing its legal and ethical obligations. The trial court granted the motions, and the prosecutor appealed. The intermediate appellate court overturned the trial court’s decision, and the Florida Supreme Court granted review.
The Florida Supreme Court was “struck by the breadth and depth of the evidence of how the excessive caseload has impacted the Public Defender’s representation of indigent defendants.” Public Defender v. State of Florida, 115 So. 3d 261, 273 (Fla. 2013). The court noted that “meet and greet pleas” had become routine and refused to address the issue on a case-by-case basis, comparing that approach to placing a Band-Aid on an open wound. Id. at 274, 278. Ultimately, the court ruled in the public defender’s favor and remanded for further proceedings. Id. at 279.
In 2007, the New York Civil Liberties Union and Schulte Roth & Zabel filed a complaint against the State of New York, focusing on five of its 62 counties. In part, the complaint alleged that the state was systematically depriving defendants of their right to counsel by failing to adequately fund overburdened defender offices. New York challenged the suit, arguing that the plaintiffs did not state ineffective assistance of counsel claims under Strickland v. Washington, 466 U.S. 668 (1984). But the New York Court of Appeals held that the complaint stated a claim not under Strickland but under Gideon for “constructive denial of the right to counsel by reason of insufficient compliance with the constitutional mandate of Gideon.” Hurrell-Harring v. State of New York, 15 N.Y.3d 8, 23 (2010). The court remanded the case for further proceedings.
The Court of Appeals’ holding was noteworthy but perhaps not as remarkable as what happened next. On September 25, 2014, the U.S. Department of Justice filed a statement of interest, demonstrating its support for public defense in a state court proceeding for the first time. The 14-page statement highlighted the half-century struggle to meet Gideon’s call, including the recent history of impact litigation. And on October 21, 2014, the parties settled. New York must now assume the responsibility of providing counsel to indigent defendants, establish workload limits, create and implement eligibility standards, hire more lawyers and staff, and pay for additional supervision and training.
Excessive defender workloads cannot be solved by defense attorneys alone. As these cases illustrate, the problem of excessive workloads is systemic. For years, tough-on-crime policies, mandatory minimum sentences, collateral consequences, and broken-windows policing pushed workloads ever higher, yet funding for public defense often diminished or plateaued. Many offices are now at the breaking point. For instance, as of this writing, overburdened, underfunded public defender offices across Louisiana are implementing service restrictions.
It is incumbent on judges and prosecutors to help resolve this systemic issue. Courts should never force individuals or programs to handle so many cases that it results in ineffective assistance of counsel or the violation of professional responsibilities. Prosecutors are also ethically obligated to seek justice. See, e.g., Model Rules of Prof’l Conduct R. 3.8 cmt. 1 (2013). That duty necessarily includes working with defense systems to ensure that, at the very least, criminal defendants stand a chance at receiving reasonably effective assistance of counsel compliant with prevailing professional norms. To that end, prosecutors should discourage meet-and-plead practices, refrain from challenging unavailability declarations, and work with defense providers to advocate for better funding for all criminal justice stakeholders.
The Missouri, Florida, Washington, and New York cases have shown two things: Public defense can be improved, and public defenders can’t do it alone. Policies and standards, workload studies, and impact litigation—the tools for improving public defense—rely on bar associations, the judiciary, prosecutors, and law firms. As members of the bar, we have a duty to ensure that public defense attorneys can meet their ethical obligations and that defendants’ constitutional rights are protected. The successes described above can be replicated, but it will take a sustained, collaborative effort.