The National Public Defense Workload Study, which looked at the 50-year-old guidelines that are used to estimate the maximum number of cases that defense attorneys should handle, found that the commonly used standards are out of date and inapplicable today, in part because cases now tend to involve complex forensic data or technology that wasn't present before.
Despite ethics rules requiring defense lawyers to limit their workloads to a level that allows them to provide the level of legal representation guaranteed by the U.S. Constitution's Sixth Amendment, defense attorneys are being asked to juggle too much work against their will, a phenomenon that eventually causes harm to their clients, the study found.
"Public defense attorneys with excessive caseloads cannot give appropriate time and attention to each client," Malia Brink, a co-author of the report and leading criminal justice reform advocate and attorney, said. "A justice system burdened by that form of triage denies all people who rely on it — victims, witnesses, defendants, and their families and communities — equal justice."
In the study, a team of attorneys and researchers from RAND Corporation, the National Center for State Courts, the American Bar Association and the Law Office of Lawyer Hanlon, proposed a new set of standards to determine manageable workloads for public defenders.
The study's authors say the updated caseload standards reflect technological changes sweeping through the criminal defense practice — things such as social media, cell phones, surveillance cameras, and body cameras — that didn't exist decades ago. It also highlights how much more time attorneys need to devote the necessary attention to their clients' cases.
Under the currently used guidelines, created by the National Advisory Commission in 1973 and known as the NAC standards, public defense attorneys devote an average of 13.9 hours to each felony case and 5.2 hours to each misdemeanor case.
That standard means that each year, on average, an attorney is expected to handle 150 felonies, or 400 misdemeanors. The typical number of yearly cases involving mental illness is 200, and the same is for juvenile cases. An attorney is expected to work on 25 appeals per year.
The new guidelines contained in the study, on the other hand, more than doubles the average number of hours to be spent on felonies, recommending that they be 35. And it more than quadruples the hours for misdemeanors to 22.3. If used as a reference in determining caseloads, the new figures would make the work of attorneys significantly more manageable, according to the study.
"This is a watershed moment for both the nation's indigent defense system and America's entire criminal legal system — but only if these standards are comprehensively implemented over a five-year period," Stephen F. Hanlon, one of the report's authors, said in a statement.
Hanlon, who sees the issue of excessive caseloads as a "pervasive problem" across the country and has directed seven state-level public defense workload studies in the past, told Law360 he aims to use a nonprofit organization he recently formed, the Quality Defense Alliance, to implement the new caseload guidelines through advocacy and, if necessary, through litigation.
The organization has already brought a lawsuit in Oregon. In that case, the state supreme court vacated a lower court ruling that forced an already overworked public defender to represent a defendant. The case is still ongoing and the Oregon Supreme Court will hear oral arguments on Sept. 19.
"That's really the first test of this new way, this new way of giving the courts and the legislatures reliable data and analytics about where the public defenders have to draw the line and say, 'I can't do this anymore, and you can't order me to do this,'" Hanlon said, adding that more litigation is to come.
The study's methodic assessment of public defenders throughout the U.S. painted an even more concerning picture, according to the researchers involved in it. For example, in 2022, public defenders in rural St. Clair County, Missouri, reported a caseload of 350 felony cases per lawyer. In Luzerne County, Pennsylvania, each attorney handled more than 300 felonies per year.
The study's authors said those figures are more than double the number of cases recommended under the old guidelines, which they say are already taxing for attorneys.
"Public defenders and other providers of indigent defense grapple with an overwhelming caseload that exceeds the reasonable capacity for effective representation, but the available data about the magnitude of this issue has been inadequate and outdated," ABA President Mary Smith said in a statement accompanying the release of the study.
The study took a comprehensive look at other workload studies that have been done since the NAC standards were created and focusing in particular on the period spanning from 2005 to 2022, using what is known as Delphi process, which involves analyzing a complex issue relying on a diverse cohort of experts who reach a consensus.
The panel involved in the study included attorneys who work at public defender offices, national and local legal aid organizations, but also private law firms. The researchers also created a national focus group to learn about what has changed in public defense practice across the board.
"This is about modern public defense practice — things like digital evidence, body cameras, forensics, increased understanding of mental health and substance abuse and how that interacts with criminality," Brink, who led the American Bar Association Standing Committee on Legal Aid and Indigent Defense's participation in the project, said in a call with Law360. "Attorneys, to do their job effectively, need more time than the 1973 standards estimated that they need."
One aspect of the NAC standards researchers find problematic is that it lumped together different types of felony cases into a single felony category. That way, an attorney representing a defendant accused of murder is expected to work the same amount of time as one assisting a client charged with breaking into a car to steal property.
Cases involving harsh penalties in particular require that attorneys have enough time to adequately investigate the accusations police and prosecutors make in them. But very often, attorneys only have a few hours to go through a case and cannot match the time and resources prosecutors have, Brink said.
She compared the dynamic of public defenders and their clients to those involving doctors and patients in high-stake emergencies.
"You go into a situation where you say, 'I'm feeling like a heart fluttering,' and my cardiologist has 14 hours to figure out what's going on, treat me and get me out of there," she said. "That's what it is when you're talking about a homicide case."
In each criminal case, defense attorneys have to go through the prosecutor's evidence and conduct an independent evaluation to make sure that police either didn't run afoul of the law or miss potentially exculpatory elements. They also have to meet with witnesses, talk to everyone who could be relevant to mitigation and sentencing, and evaluate the right outcome for their client before they recommend a plea. Such multipronged work takes more time than public defense attorneys usually have, Brink said.
The newly proposed standards, on the other hand, identify six subcategories of felonies from low-level ones up to those involving the possible penalty of life without parole, and assign different hours of needed work for each one.
"We have seen over and over again that our justice system makes mistakes. Preventing those mistakes from ever happening requires a devotion of time," Brink said. "If we really believe in equal justice, then that person who relies on public defenders is entitled to that same ability to test the prosecutor's evidence as someone who is wealthy."
--Editing by Alyssa Miller.
For a reprint of this article, please contact reprints@law360.com.
