Public Defenders

In 'watershed moment,' report recommends new guidelines for public defender caseloads

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“This is a watershed moment for both the nation’s indigent defense system and America’s entire criminal legal system,” said attorney Stephen F. Hanlon. Image from Shutterstock.

Many public defenders are “overloaded” with work, even when caseloads are evaluated under outdated guidelines drafted in 1973 that don't reflect modern-day realities, according to a new study released Tuesday.

The new National Public Defense Workload Study recommends scrapping the old guidelines in favor of new guideposts envisioning that significantly more hours will be devoted to defending people accused of crimes.

The old guidelines effectively recommended that public defense lawyers devote an average of 13.9 hours to each felony case and 5.2 hours to each misdemeanor case, according to press releases here and here. Those guidelines by the National Advisory Commission on Criminal Justice Standards and Goals did not differentiate among types of felonies.

The new National Public Defense Workload Study recommends public defenders devote an average of 35 hours to each felony case and 22.3 hours to each misdemeanor case. Those hours “more accurately reflect what it takes to provide competent legal representation in a modern world that includes social media, cellphones, surveillance cameras and body cameras,” according to one of the press releases.

The new study also breaks down the recommended time commitment based on severity of the alleged crime. In serious felonies, for example, the average time needed is 286 hours for crimes with a possible sentence of life without parole, 248 hours for murder cases, 167 hours for sex-crime cases, and 99 hours for other high-severity felonies.

“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,” said attorney Stephen F. Hanlon, one of the report’s co-authors, in a press release.

Hanlon is formerly a project director with the ABA’s Standing Committee on Legal Aid and Indigent Defense, known as the SCLAID.

Hanlon is executive director of a new group called the Quality Defense Alliance, which aims to implement the guidelines throughout the country, whether through advocacy or litigation, he told Law360 in an interview.

The ABA’s Standing Committee on Legal Aid and Indigent Defense was one of several groups collaborating on the new study and report. Another co-author of the report was attorney Malia Brink, who led the SCLAID’s participation in the project. Additional documents are available at the SCLAID website.

“Attorneys, to do their job effectively, need more time than the 1973 standards estimated that they need,” Brink told Law360.

“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 told Law360. “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.”

Other report collaborators were the RAND Corp. and the National Center for State Courts. The philanthropic group Arnold Ventures provided funding.

The report developed caseload recommendations based on a review of 17 state-level public defense workload studies and input from 33 expert criminal defense attorneys.

The report’s recommendations have not been approved by the ABA’s House of Delegates. But the House did approve a revised version of the ABA Ten Principles of a Public Defense Delivery System at the ABA Annual Meeting in August.

The Ten Principles of a Public Defense Delivery System included a call for adequate state funding of public defender agencies and regulator monitoring and control of public defender caseloads.

“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,” said ABA President Mary Smith in a press release. “This report—which builds on earlier ABA initiatives like the recent rollout of 10 principles for improving the public defense system—offers stakeholders a roadmap for how to genuinely ensure equitable justice for every individual.”

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