The perpetual crisis in indigent defense

Which states are are violating the Sixth Amendment by providing inadequate indigent defense? The better question may be, which states aren't?

Deputy public defender Anita Nabha with a client in San Francisco, Calif. (Photo By Liz Hafalia/The San Francisco Chronicle, via Getty Images)

The week that the COVID pandemic hit — that surreal week when the NBA canceled games, Tom Hanks tested positive, and we all got a jolt of the grim reality in front of us — I was in Detroit. I had already spent a few days shadowing attorneys at Neighborhood Defender Service (NDS), a nonprofit organization that had won a contract to provide indigent defense in the city.

NDS began in Harlem in 1990, but the Detroit office had only been operating for about a year. The group pioneered the relatively new and increasingly popular “holistic” model of public defense. Under the holistic model, the goal is more ambitious than a mere legal defense. Instead, clients get an entire team to push back against the myriad ways that a criminal charge can uproot lives.

That team might include a social worker putting in calls to find clients a bed at a mental health facility or a substance abuse center, an immigration specialist to assess how the criminal charges might affect their status, a family law specialist to prevent them from losing their kids while they await trial, or a tenant law specialist to work with a landlord to keep them in their home. More controversially, these attorneys also believe that to truly advocate for their clients, their fight can’t be limited to the courtroom. So they also advocate laws and policies that would create what they believe would be a fairer and more just system.

So on a cold, rainy afternoon in March 2020, I walked with NDS managing director Chantá Parker from her group’s office in an old and worn but still grand art deco building to the Wayne County Courthouse. It would turn out to be the last day before before everything shut down.

Parker and I were discussing how she got into this work when she received a text message. A longtime, well-loved public defender in Flint — and a man she considered a mentor — had just died of a heart attack. She was clearly shaken. She said her mentor had talked often of quitting, citing the strain of the job. But the very aspects of the work that made it so taxing — the way it chewed up his clients and spit him out — also made it impossible for him to walk away.

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“You go into this work understanding the psychological toll it can take on you,” she said. Her voice began to crack as she processed the news. “And we prepare for that, right? We prepare for that. But I don’t think we talk enough about what the job can do to you physically. I have guilt about that sometimes. About what we ask of our staff.”

In the weeks that followed, I’d see those demands firsthand. In the early days of COVID, I interviewed more than a dozen public defenders around the country. I sat in on group calls and Zoom sessions between the heads of indigent defense offices as they collaborated, discussed legal strategies and how to triage cases — and sometimes just vented. I’d later talk to attorneys who spent months trying to track down clients who’d just disappeared. Some had been suddenly and randomly moved to another facility without notification. Some had died. Some they’d never hear about again. Some of these attorneys expressed how difficult it could be to pivot from expressing furious indignation at how their clients had been treated on one call, to trying to soothe those clients’ increasingly desperate families on another. On its best days the criminal justice system was indifferent to their clients. Now, as a deadly virus ravaged the facilities where they were detained, it had abandoned them.

There’s been widespread praise of the bravery and sacrifice healthcare workers demonstrated throughout the pandemic — and rightly so. (There’s also been a lot of repugnant demonization of them. But that’s another topic). But we should also recognize the dedication of this country’s public defenders. Some worked unfathomable hours to find and fight for their clients as the offices that typically facilitated access shut down. As most of us went out of our way to avoid crowded, public spaces, I talked to public defenders who continued to show up for court so long as the courts were open, who demanded to be let into jails and prisons festering with COVID.

But while the pandemic was a once in a century anomaly and certainly created new problems, it in some ways only magnified problems that have persisted for decades. COVID punctuated the way the criminal legal system neglects and dehumanizes people. It exacerbated the lack of basic healthcare in jails and prisons. It underscored the dangerous overcrowding of those jails and prisons. And, perhaps most of all, it demonstrated the ever-present paradox of public defense — that one of the most essential public service positions we have — one that most embodies the core principles of a free society — is also one of the most neglected, most unappreciated, and most chronically underfunded. Criminal defense attorneys are already widely despised because forcing the government to prove its case can sometimes mean advocating for people who have committed hideous, unimaginable crimes. Public defenders face the added stigma of being widely perceived as incompetent, at times by their own clients. That reputation may have been justified in the days when the profession was dominated by court appointments, but in my experience it isn’t accurate today. But they are overworked, which can often result in similar consequences for their clients.

Earlier this month, the RAND Corporation published an extensive study of public defender caseloads. The purpose of the study was to come up with new recommendations for the maximum number of cases public defenders can take on per year while still providing an adequate defense.

The recommendations have been a long time coming. The guidelines currently adopted by courts and routinely cited in the media were published by the American Bar Association in 1973 — 50 years ago.

Under those old guidelines, a public defender should take no more than 400 misdemeanor cases per year, no more than 150 felonies, and handle no more than 25 appeals. The upper limit was 200 for juvenile and mental health cases.

As a journalist, I’ve found those guidelines helpful over the years — but only in that they’ve given me a baseline from which to calculate the magnitude by which a given state or locality has been flagrantly violating them. There just aren’t jurisdictions in the country that meet them, or even bother to try.

Things have changed quite a bit since 1973. At the very least, thanks to DNA testing, we now know that the standard defense many people got prior to the mid-1990s was insufficient to prevent a significant number of wrongful convictions. We know that there are collateral effects to an arrest or conviction, such as the loss of a job, housing, or custody of children, particularly if a defendant was incarcerated prior to trial. We know that police aren’t always truthful on the witness stand, and that forensic expert witnesses sometimes overstate their expertise. We know the role mental illness can play in criminality, and that a mental health or psychiatric evaluation ought to be a factor when charging, when sentencing, or when assessing the validity of a confession.

Today, criminal cases often include surveillance video, body cam or dash cam footage, cell phone data, computer records, or other data. If it isn’t part of the state’s case for a conviction, it could be part of a defense’s case for acquittal. Ideally, a public defender would have the resources to tackle all of this. Unfortunately, while this approach is increasingly common, it’s still pretty rare.

All of which is to say that even those 1973 figures that almost no one followed were still way too high. There’s just no way a public defender today could handle that many cases and provide an adequate defense, especially without access to investigators, mental health professionals, and office staff.

The new RAND study is an attempt to bring those old recommendations up to date. It was based on data from 17 studies of public defender caseloads between 2005 and 2022. A panel of 33 experts nominated by major criminal defense organizations then applied that data to make the new recommendations.

Instead of the five categories of cases recommended by the ABA, the RAND study breaks out 11 categories of cases. This makes sense. A case that could result in life without parole is considerably more demanding than a low level felony.

These new recommendations aren’t just more up to date, they’re more relevant and specific. They also paint a pretty bleak picture. They show that not only is a constitutionally adequate defense rare in the U.S., it’s all quite a bit worse than we thought.

Here are the new guidelines:

Note how dramatically lower they are than the old ABA recommendations. The RAND study’s maximum recommended caseload for the least serious class of crimes is about the same as the ABA’s old maximum for felonies.

Here’s an excerpt from the executive summary:

Excessive caseloads are pervasive in public defense, even when judged against the 1973 standards. In December 2022, the public defender office in St. Clair County, Illinois, reported caseloads of 350 felony cases per attorney per year.194 In Luzerne County, Pennsylvania, public defenders are “juggling more than 300 felonies annually, or double the recommended standards of 150 per year.” In validating the concerns raised over the past several decades that the NAC standards are outdated, the results of this study (as well as those of prior state-level weighted caseload research efforts) strongly suggest that these caseloads—along with those of countless other public defense providers across the county—are more excessive than previously thought.

Excessive caseloads are proscribed by legal ethics rules because they inevitably cause harm. Overloaded attorneys simply cannot give appropriate time and attention to each client. They cannot investigate fully or in a timely manner. They cannot file the motions they should. Cases are delayed, and evidence and witnesses are lost. Almost no cases go to trial. They must triage, choosing which cases on which to focus, while allowing others to be resolved without appropriate diligence. Such difficult decisions not only negatively affect public defense clients and their families, they also negatively affect victims by contributing to delay and uncertainty in the process. Furthermore, systems burdened by triage risk unreliability, denying all people who rely on them efficient, equal, and accurate justice.

I’ve done quite a bit of reporting on overworked public defenders over my career, and since reading the RAND study, I started thinking the regularity with which we’ve seen media investigations, advocacy reports, or academic studies about a city or state public defender system on the verge of collapse. I can think of about a dozen right off the top of my head. The ACLU alone has filed Sixth Amendment lawsuits in at least 15 states in recent years, and groups like the Southern Center for Human Rights and NAACP have filed their own lawsuits in others.

In conjunction with the RAND study, reporters with the media conglomerate Lee Enterprises also requested caseload data from public defenders all 50 states. Here’s what they found:

The data show more than 9,000 public defenders in 33 states have average caseloads three times the maximum annual cases outlined in the standards, according to a conservative analysis that underestimated workloads. In another five states and one county, the 50 public defenders with the highest workloads each had four times the maximum cases on average, according to a similar analysis. The remaining 11 states did not have data that could be compared to the standards.

This got me thinking about not just the pervasiveness of the problem today, but about those studies and reports that have regularly popped up throughout my career. It isn’t just a COVID thing. It isn’t just a down economy thing. It isn’t a blue or red state thing. We have consistently, systemically, and thoroughly failed to provide adequate indigent defense for decades, even after bright, red, flashing warnings that failing to do so can have devastating consequences.

So over the past week, after reading the RAND study, I started going through the states alphabetically, doing searches for each state with phrases like “public defender caseload” or “indigent defense problems.” I searched through my emails and notes, and spoke with some people in the public defender world. I did all of this with a pretty broad question in mind: How bad is it?

However bad you think it may be, it’s worse. For most states, you needn’t go back 20, 15, or 10 years to find evidence of a broken system. For most, you can find stories from the last two or three. For most states, you can find stories about a public defense crisis within the last few years and also stories about a crisis five years ago. And 10 years ago. And 20.

So over the next few months, I’m going to go through each state. I’ll look at how public defense is funded, how it’s administered, and summarize investigations, studies, and surveys from that state. I’ll put up five posts after this one, each looking at 10 states.

Because this post will serve as a sort of introduction to the series, I’ll end it with some context that will be useful for the posts that follow:

There are three general models of public defense. The first is a dedicated public defender office, preferably one in each county or judicial district. Generally speaking, this is the model most consider to be the most effective, though there’s a lot of variance in funding, staffing, experience, and philosophy.

The second model is a court-appointed system, in which judges appoint private attorneys to represent indigent defendants on a case by case basis. This was the method used by most of the country up until about the 1990s. It was plagued with problems, from corruption (judges giving cases to cronies and campaign donors) to incompetence (attorneys who took such cases tended those who needed them — the profession’s scofflaws, ne’er-do-wells, and ethically challenged).

The final model is a flat fee contract, in which private attorneys or firms put in bids to take on all or a percentage of a county or district’s indigent cases. This tends to be the cheapest model for state and local governments, but it’s loaded with perverse incentives. Historically, local governments have simply opted for the cheapest bid, regardless of the quality of representation. For attorneys and firms who make bids, there’s an incentive to bid low, but then maximize their fees by taking as many cases as possible. That isn’t a formula for high-quality representation.

There is an exception though. It’s the model that opened this post. Nonprofit groups like the Bronx Defenders, Brooklyn Defender Services, and Neighborhood Defender Services in Harlem and Detroit have figured out how to provide high-quality, holistic public defense on the contractual model. I’ve spoken to a lot of criminal defense attorneys in recent years, and visited a lot of offices. One striking thing about the holistic model is the eagerness and enthusiasm with which these attorneys tackle their work. There’s a vigor — even an optimism — that you don’t often see in more traditional indigent defense offices. I should also note here that though nonprofits like NDS pioneered this model, a number of more traditional public defense offices have since adopted it as well.

As for funding, the research suggests its best when it comes from the state, where budgets are more reliable. States should also have a public defense board or agency to provide oversight and training — preferably one that is independent of the state executive.

Finally, there’s the issue of conflicts. A public defender can’t represent someone if doing so would conflict with the interests of someone else they’re representing. The most obvious example here would be a co-defendant, but it could also be a witness or even a victim. You’d be surprised how many cases get conflicted out. It can be a significant percentage of indigent defendants.

A few states have separate, dedicated public defender offices just to handle cases that conflict out of the regular office. But in others, even states with relatively decent systems, the conflict cases are handled the old way — through appointments or contracts with private attorneys. And even in states with good systems, conflict cases tend to get far less oversight and transparency.

These are all generalizations, of course. As we’ll see, some states check off all these boxes on paper but still provide a paltry indigent defense. And some states manage to provide (comparatively) decent defense despite a less than ideal organizational structure.

In a few days, I’ll put up a review of the first 10 state systems — Alabama, Alaska, Arkansas, California, Colorado, Connecticut, Delaware, Florida, and Georgia.

If you work in public defense in any of those states and have information you think I should include, please feel free to drop me an email.

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