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November 9, 2008

"Citing Workload, Public Lawyers Reject New Cases"

The title of this post is the title of this front-page article appearing in today's New York Times.  Here is how it begins:

Public defenders’ offices in at least seven states are refusing to take on new cases or have sued to limit them, citing overwhelming workloads that they say undermine the constitutional right to counsel for the poor.

Public defenders are notoriously overworked, and their turnover is high and their pay low. But now, in the most open revolt by public defenders in memory, many of the government-appointed lawyers say that state budget cuts and rising caseloads have pushed them to the breaking point.

In September, a Florida judge ruled that the public defenders’ office in Miami-Dade County could refuse to represent many of those arrested on lesser felony charges so its lawyers could provide a better defense for other clients.  Over the last three years, the average number of felony cases handled by each lawyer in a year has climbed to close to 500, from 367, officials said, and caseloads for lawyers assigned to misdemeanor cases have risen to 2,225, from 1,380.

“Right now a lot of public defenders are starting to stand up and say, ‘No more: We can’t ethically handle this many cases,’” said David J. Carroll, director of research for the National Legal Aid and Defender Association.

The reality of under-funded and over-worked public defenders has been a persistent problem in all eras and at all levels of government.  I am pleased that the New York Times is bringing renewed attention to this issue when the mantra of change is still fresh in the public consciousness.

Of course, defense attorneys are hardly the only public lawyers who are under-funded and over-worked.  Compared to their private practice peers, many state and federal prosecutors and many state and federal civil lawyers and many state and federal judges also generally have too much to do and often are insufficiently compensated for their public service. 

I am hopeful (though not especially optimistic) that a new federal executive branch headed by a bunch of lawyers with a long commitment to public service might have a positive impact on the practical challenges surrounding public service lawyering.  But the structural and political realities that produce the kinds of problems highlighted by the Times article are not easily altered.

November 9, 2008 at 09:57 AM | Permalink


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I think this is a tad alarmist. PDs offices are not underfunded EVERYWHERE. There are some places that are badly organized, have little political clout, AND are underfunded. But to make such a blanket statement doesn't really help the discussion.

Posted by: S.cotus | Nov 9, 2008 6:09:01 PM

I do not know the basis of knowledge of the commenter who suggests that either the Times or Prof. Berman "is a tad alarmist." I have had a front row view of indigent criminal defense in the State and Federal Courts in NYC for more than 20 years through my clinical teaching. I have tried to maintain some familiarity with the relevant studies and other literature. I have also heard much anecdotal evidence from colleagues and students.

I think it true that there exists some public defender offices that are not underfunded. But the existence of a very few programs that meet minimum standards is a very weak response to the observation that across America the vast majority of indigent defense is provided by lawyers under huge caseload or other economic pressures which force them, and other actors in the criminal justice system, to compromise deeply held values and professional norms.

I also question the observation about poor organization and little political clout. As Administrative Law scholars have taught us, organizational inefficiency is best understood as a policy choice by those who control the structure and funding of organizations. And maybe it is just my normative view speaking, but those of us who represent people accused of crimes only expect to go so far in building popular support for our mission. We, as a profession and as a society, give special protection to the most reviled because they are not popular.

I have a good friend who represents every misdemeanor defendant on the docket in an urban court in a city in upstate New York. That lawyer is representing more than 500 clients. Every time I go to court I watch minor cases get dismissed after four or five court appearances because no one has had the time to even evaluate, let alone begin to litigate those matters. I read case after case in which defense lawyers could not do the field investigation or legal research or client counseling that would have uncovered some case shaping and reasonably accessible fact.

Now I don't want to be alarmist but I do want to account for the evidence as I understand it. I think our criminal justice manages rough and substantial justice in many cases. There are also some public defenders providing strong representation. But the overall picture of indigent criminal defense in America as I see it is one of widespread and persistent underfunding which has caused significant injustice.

Posted by: Ian Weinstein | Nov 10, 2008 9:29:11 AM

Agreed. Much of the problem IS poor organization, AND employing people who lean towards the lazy end of the stick because they know it becomes more difficult to terminate them despite poor performance. I pray this new administration puts an end to job security for poor performers.

Perhaps we should give out student visas to those people Lou Dobbs loves so much. We can sequester them to prevent assimilation and let them do the jobs some professionals don't want to do. Once they assimilate and learn that they TOO can take things slow because they have job security, we can fire them and start the cycle all over again.

Posted by: | Nov 10, 2008 9:32:54 AM

You people are doing falling for the same trick.

First of all, what Public Defenders are lazy? You know, I can say a lot of bad things about public defenders – “lazy” is not one of them. Besides the fact that some, not all, are “true believers,” (this is an insult) here are some bad things: 1) cultish; 2) elitist; 3) arrogant; 4) ignorant of the law outside their jurisdiction; 5) chewy; and 6) sometimes anti-intellectual (as in not being professorial). But, they are not lazy.

There are a few conceptual problems we need to deal with.

Lawyers are notoriously critical of other lawyers. Often in an immature way. Hardly a day goes by that I don’t hear a lawyer saying that some other lawyer is completely incompetent. Who is to say who is right? (In fact, calling the other guy know-nothing is a fairly common litigating technique.) Your comments about indigent defense in New York not being any good are weight as coming from someone with a “clinical” practice. Would you say that to individual lawyers doing a trial? Or are you just second-guessing people? So, I think that you need to remedy your credibility problem with a more rigorous analysis.

On a side note, do I get to say that the Bush administration solicitors general were incompetent and stupid because they lost almost all their big cases before the Supreme Court. Should I run around saying, “If I were counsel, I would have gotten all the justices to hold that the president can do whatever he wants because I would have done a better job because I am a better lawyer?”

Ascertaining objective standards of defense performance is difficult because it must be viewed in light of the practice in a given jurisdiction. In some jurisdictions, almost everything “gets dropped.” This might mean the Pds are good. Or the prosecutors are lazy. Or something else. In some jurisdictions the prosecutors take on a very therapeutic and policy-oriented approach to their work, which actually encourages people not have trials. In other jurisdictions, a policy of never offering reasonable plea agreements results in more trials, which, because there was not a proper vetting of cases results in more acquittals. Who gets the credit for this? (Certainly not the jurors. They don’t know s//t.)

Oh, and what about jurisdictions with really good cops that know legally collect good evidence and simply don’t bother with cases with thin evidence? How do you account for these cases?

In my experience, the most screwed people in the criminal justice system are those making between $40,000 and $150,000 per year. They are generally not indigent enough to receive a public defender, but because they are poor they have no way of knowing who is the most legally sophisticated attorney in the city.

You don’t provide specifics about what a proper amount of funding and a proper caseload might be. Sure, it sounds bad that a first-year PD has a caseload of say, 1000 cases (about 4-5 per day). But seeing that most of these might be disposed of, isn’t that bad. And, as a card-carrying member of the ACLU, and a reputation as being “soft on crime” (or whatever people said on here) I will continue to stand behind that.

Posted by: S.cotus | Nov 10, 2008 10:30:12 AM

i agree with everything S.cotus says, with one (admittedly unscientific) caveat. i was a trial public defender for 6 years at a well-funded, well-trained, well-staffed program. although i agree that raw caseload numbers don't tell the whole story, for the reasons in S.cotus' comment (plus, what kind of cases are they - juvies, prob violations, serious felonies, or what?), i do think there is a real and absolute threshold beyond which any lawyer risks (or begins) malpractice to some degree.

for me, it was always 50-60+ cases. but i am clearly a totally incompetent lawyer. and, i lack bluebooking skills.

Posted by: pubdefender | Nov 10, 2008 10:39:53 AM

Wow. An actual public defender! I am glad that you agree with me about your kind being chewy.

In order to determine what constitutes “malpractice” we need to figure out what constitutes “practice.” This is difficult, because it needs to be ascertained on a case by case basis. If this were “rich peoples’ law” a legal malpractice claim would require ascertaining of the “case within a case” issue.

Perhaps you are referring to the Sixth Amendment floor for adequate representation. This poses more of a political question. At some level, all poor people are entitled to some amount of “representation” and that representation is not dependant on what kind of verdict or sentence they would receive. However, I think you are really asking for a political determination about how much time should be spend reviewing all cases in order to comport with the Sixth.

To show you the difficult with counting cases, you folks should probably spend some time in an actual courtroom. It is fairly common for a PD to dispose of 50 cases in a morning just because the government opts not to move forward or a witness doesn’t show. What is more important isn’t numbers but whether issues are throughly litigated. And, even there, in many instances that doesn’t tell the whole story.

Posted by: S.cotus | Nov 10, 2008 10:52:29 AM

to my great dismay, i find myself (partially) disagreeing with you, S.Cotus.

first, i don't know what jurisdiction(s) you've practiced in, but as a former state public defender and now federal public defender, the only cases that went away without trial or plea were domestics with missing victims (and then usually only post-Crawford and if there were no non-victim witnesses to the alleged crime). here, i am speaking of district court cases (i.e., misdemeanors). felonies never went away like this...but maybe that is because i am a PD and, thus, an inadequate lawyer (plus, my clients are poor).

second, while i agree that 'extent of issue litigation' is a better measure of the heft of a caseload than raw number of cases, the two can't readily be divorced. having too many cases often precludes effective issue identification, much less litigation. i certainly can remember (thankfully brief) periods where i was carrying 80-110 cases and could barely keep up with all of my court dates, jail visits, client office meetings, phone calls, etc., much less take the time to turn a creative (or even thoughtful) eye to the possible issues in a case.

plus, unless you are a highly paid private lawyer with secret knowledge, there are some (perhaps quite a few) cases that just don't present a lot of 'issues' -- they are straight up fact and credibility trials, or pleas, where there are no fancy schmancy motions, etc. but you still have to meet with those clients, see them in jail, go to multiple court dates for them, take their calls, prepare for their trials, and so on.

unless of course you are a PD, in which case the better practice is clearly to plead them out at the first opportunity.

Posted by: pubdefender | Nov 11, 2008 9:32:09 AM

PubDefender, Again, this varies by jurisdiction. There are some jurisdictions with very high arrest rates, but very little desire on the part of prosecutors to take the cases to trial. It’s almost embarrassing to hear some guy in the private bar say “In XXX, everything gets dropped.” There may be many reasons for this, and it isn’t good, but it clouds the statistics. (Likewise, in some jurisdictions at various points, speedy trial motions were often granted, because the state couldn’t get its act together.)

I agree that there will be some distortion in identifying issues when caseloads are high. But it is really impossible to prove that. But, on the other hand, a high caseload for PDs generally means a high caseload on the other side. This will alter the plea bargain calculus.

I also agree that the “type” of case matters most. If all that is going on is swearing contests maybe caseloads can be higher. This, again, comes down to whatever is being prosecuted.

Finally, I should note that any semi-large PD agency will have a good handle on plea bargain strategy. Often this involves waiting until the last moment for a plea. This usually varies by crime. To oversimplify: Sex assaults defendants usually do better with delay. Cases which require expert analysis (or even just accounting) do better with acceleration.

Posted by: S.cotus | Nov 11, 2008 1:57:35 PM

I'm a student at Iowa State University and I'm researching the public defense system. Right now I'm trying to compare public defenders to private attorneys (salary, number of cases they work on at a time, sentencing of defendents, crime severity, number of wins) but I can't seem to get a number on how many cases each work on in one year, or one month. My last source said that public defenders work on 30-40 a month but that seems far too low. Does anyone have answers to the average number of cases each works on in whatever period of time? I would greatly appreciate an updated and realistic answer!

Posted by: Abi | Dec 3, 2008 2:58:06 PM

I'm a student at Iowa State University and I'm researching the public defense system. Right now I'm trying to compare public defenders to private attorneys (salary, number of cases they work on at a time, sentencing of defendents, crime severity, number of wins) but I can't seem to get a number on how many cases each work on in one year, or one month. My last source said that public defenders work on 30-40 a month but that seems far too low. Does anyone have answers to the average number of cases each works on in whatever period of time? I would greatly appreciate an updated and realistic answer!

Posted by: Abi | Dec 3, 2008 2:58:15 PM

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