Gideon Alert: DOJ data confirms existence of right to counsel workload crisis in the United States

BY David Carroll on Friday, September 17, 2010 at 10:56 AM

On September 16, 2010, the U.S. Department of Justice, Bureau of Justice Statistics (BJS) released additional results from its 2007 public defender survey in two separate reports.  These reports on state public defender programs and county-based public defender programs detail the existence of serious deficiencies in the way states and counties deliver Sixth Amendment right to counsel services, most notably in the excessive caseloads public defenders are forced to carry.

The state reports results from the survey of 957 public defender offices across 49 states and the District of Columbia (at the time, Maine had no public defender offices, and thus was not included).  BJS determined that 79% of reporting state public defender systems (15 of 19) exceeded nationally-recognized workload standards.  This should not be surprising, given the finding by BJS in State Public Defender Programs, 2007 that, from 1999 to 2007, caseloads at state public defender programs increased 20% while staffing increased by just 4%.

The situation is actually much worse.  BJS acknowledges that its methodology undercounts workload demands because the formula only counts new assignments per attorney per year, while national standards are based on every case worked in a given year (i.e., pending cases + new assignments).  Additionally, the survey divided the total number of new cases by the total number of attorneys in an office, including management & supervising attorneys without regard to whether they actually carried a full caseload.  It should also be mentioned that the new BJS studies detail information from 2007, a time at which most of the nation had yet to experience the recent financial difficulties. 

Rhode Island reportedly had the highest workload of any state-based public defender system, with a mixed felony/misdemeanor caseload of 391 per attorney (or, 42% above the mixed workload standard of 275 used in the BJS calculation).  BJS concludes, among other things, that state public defenders had only an estimated 67% of the staff they need to meet accepted workload guidelines.  Iowa, according to the BJS workload formula, has the greatest need, with only 31% of the attorney staff necessary to meet national caseload standards.

Exacerbating the workload crisis, state public defender offices had fewer investigators per attorney than required under national standards.  Prevailing standards call for one investigator for every three attorneys.  On average, there was only one investigator for every six attorneys in state-based public defender systems.  Arkansas reported only having one investigator for every 30 attorneys.

The median starting salary for entry-level attorneys was only $46,000.  Virginia had one of the lowest starting salaries ($37,000) and, maybe not surprisingly, one of the highest attrition rates in the country (24%).  Virginia also had the lowest average attorney length of service (3 years).  The connection between low salaries and high attrition was noted by BJS: “[n]early all states with an attrition below 10% reported assistant public defender salaries that were at or above the median observed in the 22 states.”

The situation in county-based programs is just as bad, as reported in County-based and Local Public Defender Offices, 2007.  Seventy-three percent of county-based public defender programs exceed national caseload standards – a number skewed slightly by the inclusion of the Public Defender Services of the District of Columbia in the county grouping (arguments can be made that D.C.’s right to counsel system operates more similarly to a statewide system).  Not surprisingly, only 15% of county or local public defender offices had formal caseload limits and only 36% have the authority to turn back cases due to case overload.  The more cases a local public defender program received, the more likely they were to exceed national standards.  Four out of every five offices receiving more than 2,500 new assignments per year exceeded the national standards for workload.  Only 27% of county-based public defender offices reported sufficient numbers of attorneys to meet national caseload standards, with nearly a quarter of all reporting offices saying they have less than half the number of attorneys required by the standards.  The lack of ability for county-based public defender programs to deal with case overload is due, in part, to a lack of independence.  Independent commissions, as required by national standards, exist in only 36% of the local and county-based systems.

Though the two new reports confirm what equal justice advocates have long known about excessive public defender workload, we note that the majority of indigent defense services in the country are provided by private attorneys under contract or receiving hourly wages.  The two new BJS reports address only indigent defense services provided by staffed public defender offices.  As noted previously in this column, the problems associated with flat fee contracts and/or ad-hoc, unregulated assigned counsel systems are just as bad if not worse.  BJS reports that future data collection efforts related to these other delivery system models are in development.

So what is to be done about the national public defender workload crisis?  One answer may come from the BJS survey itself.  As reported, 43% of state public defender caseloads and 56% of county-based public defender caseloads are made up of misdemeanor or local ordinance violations.  The need to make efficient use of limited taxpayer dollars means that the federal government should encourage state policymakers to reduce the need for public defense attorneys by removing non-violent, low level felonies and misdemeanors from the formal justice system through diversion, mediation and/or reclassification of crimes to infractions.  Unfortunately, this morning’s Pioneer Press is reporting that the Minnesota State Public Defenders attempt to get the state Judicial Council to consider reclassifying some misdemeanors to infractions was met with opposition from prosecutors and ultimately denied.