Reducing public defender workloads across the nation

The American justice system guarantees a presumption of innocence and the right to legal counsel. For those that cannot afford an attorney, public defenders are available to provide a defense.

But a new report from Emily Hamer, a reporter for Lee Enterprises' Public Service Journalism team, reveals that public defenders across the country are overworked.

In the story "Public defenders work 3 times too many cases, milestone study and new data show," Hamer's research found public defenders across America regularly work triple the cases they can effectively handle, and some work upwards of 10 times too many cases, according to an analysis of Lee Enterprises data based on a milestone study of public defender workloads. 

Lee Enterprises’ Public Service Journalism team requested caseload data from all 50 states to conduct the first-ever national analysis of public defender workloads using the new National Public Defense Workload Standards. The analysis proves public defenders are severely overworked — a problem that threatens the constitutional right to effective counsel. 

In this episode of Behind the Headlines, Hamer discusses the story, consequences of ineffective counsel and potential solutions.

Read more

• Public defenders work 3 times too many cases, milestone study and new data show
• Broken defense: People’s right to counsel routinely violated across West

About this program

Host Terry Lipshetz is a senior producer for Lee Enterprises. Besides producing interviews for this Behind the Headlines program, he produces the daily Hot off the Wire news podcast, co-hosts Streamed & Screened movies and television program and is the producer of Across the Sky weather and climate podcast.

Lee Enterprises produces many national, regional and sports podcasts. Learn more here.

Episode transcript

Note: The following transcript was created by Adobe Premiere and may contain misspellings and other inaccuracies as it was generated automatically:

Welcome to another episode of Behind the Headlines, where we feature experts and journalists discussing a variety of topics. I'm Terry Lipshetz, a senior producer for Lee and your host. In this latest episode, Emily Hamer, a reporter for Lee Enterprises’ Public Service Journalism team, discusses her story “Public defenders work 3 times too many cases, milestone study and new data show.”

Emily, welcome to the program. Thanks so much for having me. Before we dive into this current story, this isn't something that's new to you. You've been working a little bit on public defender topics for a little while now. Can you talk a little bit about previous reporting you did for your series: “Broken Defense: People's right to counsel routinely violated across the West.”

In that series we really wanted to take a deep dive into what's happening into public defense systems across the U.S. and because I think we kind of everybody sort of assumes that public defenders are underfunded or they're not paid well and they're really overworked. But I think that people sense that's so commonly accepted. People don't really think it's a problem that we should actually try to fix.

So my series really sought out to examine that issue and look at how it's affecting real people's lives who are going through the criminal justice system. So we found people who lost jobs, lost homes while they were stuck in jail, while they're still presumed innocent, but they're waiting for an attorney to represent them. And there just wasn't one available.

That's happening in Oregon right now. There are also people who they plead guilty to misdemeanors before ever talking with a defense attorney at all because the the justice system is kind of set up to pressure them into pleading, pleading out their case and just getting it over and done with before they ever talk to that public defender, even though they have a constitutional right to that.

So we found about more than 100,000 misdemeanor cases each year where people go to jail without ever talking to a lawyer at all. And so we talked to a lot of people about how this broken system is affecting them and found that it's it's become really common, a really routine part of the criminal justice system for People's Sixth Amendment right to counsel, to be violated.

Don't want to go too far off track here, but what would the reasoning be to to plead out so quickly? Is prosecution just looking to turn over cases, especially lower level cases, a lot faster and kind of keep things moving along? Is that the reason for that then? Yeah, I mean, I do some of the people, some of the defendants who have been accused of crimes do see it as an advantage because they're able to just resolve their case and get it done with.

But some of those people might have wanted to fight their case. So in there was a court in Texas where I went to their initial appearance. Court and initial appearance is supposed to be where you go in front of the judge and you either have your bail set or your release to release from jail or given a signature bond to come back to court to to fight your case at another time.

Or you have to you were you were never in jail. So you are just kind of showing up to get things rolling on your case. So it's normally just kind of like a checkpoint hearing. But at this court, I went through in Texas, there were a ton of people who fled their cases on that very first day in court.

And there's no defense attorney or public defender at all in the courtroom to help them understand the consequences of pleading guilty to that misdemeanor. There was one guy who went before the judge and he had he was in jail for like a marijuana charge. And the judge asked him if he wanted to plead guilty to the charge. And the guy said, no, he didn't.

But then the prosecutor came back over and was like, well, no, what we talked about is if you plead guilty, you get out of jail today. And then the guy kind of flipped the switch and said that he does plead guilty now. So they're just talking with the prosecutor by themselves without any kind of counsel and without any understanding of the collateral consequences of pleading guilty to even just a minor crime.

Maybe they could have had a defense against that. But they never talked with a public defender to to find that out. It's interesting. So now moving on to the current story that you're working on. You know, first, I think most people listening to this probably have a basic understanding. But can you explain what exactly as a public defender, what is the role and how do they play a part in the justice system?

Yeah, So a public defender is an attorney who is appointed to your case when you can't afford to hire your own private attorney yourself. So they are provided to people, to people who are poor or they call them indigent in the criminal justice system when when they can't afford an attorney, you're provided an attorney to fight for your case at the state's expense.

And your constitutional right to an attorney is is not just to any public defender to just like sit by and watch your case, but to an effective public defender who actually fights for you. We're all entitled to an effective legal counsel, basically. Yes. So now what is this current story that you're working on in and what kind of data did it reveal?

This movement of people, lawyers and researchers who are trying to fix public defense systems? And they came up with these new metrics that are not allow anybody really to measure public defender workloads to find out how many cases is too many cases for a public defender to handle. So they want to make sure that public defenders are taking on because when a public defender takes on way too many cases, they can't be effective for every single one of those clients, every every person that they're representing, some cases get thrown to the wayside.

These new national public defense workload standards that have have come out are a way to kind of get public defender caseloads on the map and find out when there are way too many cases that a public defender is handling. So I took the those figures that kind of the big the big number there is that attorneys should never handle more than 59 low level felonies in a year.

And there there are 11 other figures like that. But that's kind of the the biggest one, I think, to wrap your head around. So I requested data caseload data from all 50 states in order to get an understanding of of where public defenders are at in terms of their caseloads. And I got data back from about 36 states, and it represents about 9000 public defenders and in 30 states.

And their average caseload were nearly three times the maximum that they were supposed to have under the new standards. And that's even under a conservative analysis. So basically, public defender workloads are really, really high, unreasonably high. And they have been for a really long time. But this these new standards and this new data is kind of the first nationwide analysis that really shows just how overworked they are.

So when you say upwards of three times as much, I mean, the standards are now saying no more than 59 low level felonies. So if they're going three times, you're looking at attorneys that are pushing, you know, closing in on 200 a year, then in some places it's even higher. Like in St Clair County in Missouri, the St Louis Post-Dispatch did a story where public defenders there had more than 350 felonies.

And in 2022, which is like six times too many cases, and that's that's assuming all of the felonies are are low level felonies. If they're mid-level felonies, you should only work 36 of them in a year. And that's assuming that you're working 2080 hours, which is 40 hours every week of the year without taking any vacations or sick time.

And you're spending and or doing administrative tasks like responding to e-mails where it's all piecework. So it really is a conservative analysis that show that shows that public defenders have tripled the cases they should. Yeah. And if it's based on 20, 80 hours, too, that's in a sense, a little bit unfair because we presumably all want to have a little time off.

I'm not sure we're all operating at peak levels when we're never getting a day off. So, yeah, for sure. My series I talked with one public defender in a rural California county and he said that he worked, I think it was something like every day, including weekends for the past three years, and he was taking a step down from one of his public defender positions because he he wanted a little bit of a break.

He got out of one of his contracts, but he's like, yeah, I can't work every single day anymore. So yeah. And there and I found in in Texas and Idaho and Maryland there were a handful of attorneys who had ten times too many cases according to the standards. Well, and one judicial circuit in Florida where attorneys had nine times too many cases.

There are some public defenders who are handling just a crazy number of cases, and they can't provide a rigorous defense to every single one of those clients. So it results in a system where some clients are getting this great defense. But then that's at the expense of these other cases that are just getting pushed through the system. You speak about like low level felonies and mid-level.

Can you just give some examples of what qualifies? I mean, I'm assuming obviously like a murder isn't going to be something that would fall under a lower, lower level felony. So can you just kind of give a sense of some of the crimes that would fall under each kind of grouping? Yeah, there's actually a separate Corey for murder cases and those you should only handle eight of those in a year and you should spend a around 250 hours on each of them.

So there's, there's 11 different case type categories under the standards where there's a different sort of calculation for for each of them. But the low level felonies would include things like DUI is resulting in death, less serious property crimes and some drug felonies and theft, larceny, burglary. Those are some of the cases that might be considered low level felonies depending on the state that you're in.

And it's usually it's a sentence of up to two years. This is what the standards say, mid-level, mid-level felony is, can include serious property crimes, more serious drug crimes, less serious violent crimes, arson breaking and entering, drug distribution, battery, and a possible sentence of 3 to 15 years. And these are all kind of variable. I there are some a most states only have just felonies generally, but there are some sites were able to break it down a little bit more and with their felony classes I, I sorted those into the categories that are the 11 different categories that there are under the standards and there are misdemeanors and and DUI is in there, too.

It's not just felonies that are there any particular states right now in which the case loads for public defenders are particularly alarming? I think when you look at the average cases, it's across the board. It it's pretty bad. There's not very many states that like stick out as is being a lot worse than the others. I will say that Tennessee is one of the states that had some of the worst case loads.

They had kind of the highest figures under this analysis. I think they had nearly six times too many cases. Yeah, it was about 5.6 times too many cases in Tennessee. The fact that the average cases is three times too much is a really bad place to start. And so, yeah, there are a few states that seem to be doing okay.

Like Vermont was one of the states where their case loads appear to be within the standards, but the data is kind of incomplete and and nasty. So depending on how you measure it or how you categorize things, Vermont might be above the standards as well. Their data just isn't great. So it's kind of a mess everywhere. And if you dig into it, I'm sure you're going to find patchwork defense problems in in your state.

So in your story, you kind of reference, obviously these new standards. What were the old standards? Can you explain a little bit about, you know, what were the guidelines or standards previously and why were they kind of updated? Now, the old standards are 50 years old and they are based on much of anything at all. There's a longtime civil rights attorney that I've been talking to, Steven Hanlon, and he is kind of a leading this public did national public defense reform effort.

He said that the old standards, they're called the next standards were developed, which is a generous term on a cocktail napkin by a couple of defense attorneys 50 years ago. So they there wasn't really any data, there was no methodology. And they're just kind of ballpark numbers that the defense community has been relying on for the last half a century.

So they really needed to be updated and they finally are. Yeah, it's probably a good idea to actually base guidelines off of some level of metrics. Yeah. Measuring things in your story. You do reference Oregon multiple times and I guess it serves, you know, a little bit of the basis of the story. Can you talk a little bit about what's going on in that state and what's of concern there in Oregon?

They're really having a big public defense crisis right now, and they have a shortage of public defenders. And because and they have public defenders who are starting to stand up and say we we can't accept any more cases. We're not going to be able to provide effective representation to these people if you make us keep accepting more cases.

And because of that, there are a bunch of people, there are hundreds of people each day who aren't getting attorneys on their cases, and some of them are in jail. I talked with one guy in Oregon who he spent six months without an attorney after he was arrested and charged with a crime. Three of those months he was in jail and he couldn't he had to figure out on his own how to argue for a lower bail and filed motions for himself.

So that he could get out of jail in order to fight for his case. And during that time that he was in jail without an attorney, he lost his job and he lost his apartment. And so, a, it's a really huge problem in Oregon right now. And there are people who are going without attorneys while they're trying to navigate a really confusing criminal justice system.

There was another woman who I talked with who her public defender was so overwhelmed that her public defender showed up in court one day and was like, sure, sign these papers before this court hearing. And so the woman signed them and she didn't realize she was signing her plea agreement to plead guilty to a crime that she wanted to fight against.

And she said she would have accepted some of the charges, but she didn't want to plead guilty to what she ended up pleading guilty to because her public defender was just in such a rush. So Oregon is in a really bad spot right now, and they have put a ton of funding toward the problem and they're trying to rework their public defense system there.

So it it functions a little bit better. But they Oregon's unique because it doesn't have any statewide public defender agency. So there's no there's no public defenders in the state who are like government employees and people generally say that it works better to have staff public defenders in an office as the form of public defense, because then you can have support staff, you can have social workers, you can has immigration experts who can talk about the potential immigration consequences, whether or not it a charge could get someone deported.

So there's all these resources that you can have in public defender offices and Oregon largely doesn't have that. There are few public defender nonprofits who have that sort of structure, but most of the state is in public. Defense is provided through contract. It's got it. Yeah, that actually seems interesting. The concept of having a larger state agency, because in a sense it would act as a law firm because if, you know, if you can afford to hire an attorney who comes from a law firm, they do have support staff and they do have other people that can conduct research.

So it's almost like, you know, if you don't have that, then you're stuck with a single person who's making for you whatever time that person can make available to you. And and again, it gets to the point that you may not be receiving effective counsel. Yeah. A lot of people on a public defense experts recommend having more public defender office, since that's one thing that Texas is trying to do, is their statewide indigent Defense Commission is trying to build more public defense offices throughout the state.

Besides, you know, obviously these guidelines, but the guidelines don't necessarily solve the problem. They just establish a guideline. So what what needs to happen to actually solve the problem? Is it a case of we need more funding for public defenders? Is do we need to change any laws that, you know, are there are there are too many people getting charged with crimes that maybe you shouldn't be getting charged with to begin with or, you know, certain felonies maybe really would be better said, is misdemeanors.

Has any of that come up in your reporting? Yeah, it's it's kind of all of the above with with what you said. And so the the data suggests that local public defender's offices and local governments should triple or sometimes quadruple the funding for public defense, which I assume is probably not going to happen. But so there's the guy I mentioned earlier, Steve Hanlon.

Hey, he's working with a group called the Quality Defense Alliance. They're trying to improve public defense and through advocacy in sometimes through litigation. So Hanlon has come up in some states with five year plans to improve public defense, and that's through both funding increases, but also through the decriminalization of some nonviolent charges. A good example of one of these plans was in New Mexico, and they had a one of these studies concluded that New Mexico needed about 900 attorneys, and they only had about 300 attorneys.

So that's a gap of about 600 attorneys that they need. But if you and provide more funding and then you also decriminalize some crimes, it closes that gap by quite a bit. According to this new Mexico five year plan, the state needs to about double the funding that it currently has for public defense, and that would increase the number of public defenders in the state to about 600.

And then decriminalizing some minor crimes that are victimless. So they're not like violent crimes or anything like that that would reduce the caseload and reduce the pressure on attorneys and reduce the attorney need to 720 instead of 900. So it's not completely closing the gap. And speaking of huge improvement, before the gap was 300 to 900. After this five year plan, it would be 600 to 7 700.

So that's a big difference that the local governments could make. The quality defense alliances also going to be advocating for federal public defense grants to help out local governments make these changes. So they are advocating for federal funding that that could provide a lot of help because this is a federal mandate in the Constitution to provide a public defender's effective public defenders to everyone who needs one who can't afford one.

And has there been any success with getting more funding either at the state or national level anywhere? Where is this? You know, is that's just kind of tied up in legislatures and Congress? Not so far. It it has been kind of stuck. I think the hope is that once these standards come out, that that'll really help push things along and demonstrate the need for this funding.

And on that, Emily, I appreciate you taking time to talk about this. It's a fascinating and important topic. Thanks so much for chatting with me about it. We hope you enjoyed this latest episode of Behind the Headlines. You can find us on every podcast platform and we'd love it if you could take a moment to subscribe and leave of review.

Finally, if you appreciate what we're doing with this program, we encourage you to invest in local journalism by supporting the newspaper in your community. I'm Terry Lipschitz. Thinking you so much for listening to behind the headlines from Lee Enterprises.

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Behind the Headlines features interviews with reporters and editors from newspapers owned by Lee Enterprises, including its Public Service Journalism team. Lee Enterprises is a leading provider of local news and information, and a major platform for advertising, with daily newspapers, rapidly-growing digital products, marketing services, innovative technology and nearly 350 weekly and specialty publications serving 77 markets in 26 states.