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The Truth about How Public Defenders Handle Excessive Caseloads
It seems that the easiest thing for public defenders to acknowledge is that they have too many cases and the hardest thing for them to acknowledge is that because they have too many cases they sometimes fail to provide clients with effective representation. In the recent article “The Truth about the Work and Talent of Public Defense Lawyers,” Andre Vitale argues that even though public defenders have excessive caseloads, through their determination and hard work, they manage to obtain the same outcomes for clients as private defense attorneys. I have heard this belief expressed many times before and believed it myself while working as a public defender. I was convinced that despite my lack of resources and excessive caseload that I managed to effectively represent all of my clients. I was wrong.
I’m certain that I failed some of my clients. That isn’t easy to admit. It took me years to come to that realization and it was made after I had stopped being a public defender. But unless more public defenders find the courage to admit that excessive caseloads make it impossible to render effective representation in every case, we will never achieve NAPD’s goal of systemic reform of indigent defense.
The truth is that over the years there have been dozens of studies comparing the effectiveness of public defenders, appointed counsel and private defense lawyers. These qualitative studies of lawyer effectiveness have produced varied results. Some have concluded that public defenders are more effective than retained counsel while other studies have reached the opposite conclusion.[i] The real issue isn’t whether public defenders can be just as effective as assigned counsel or a private attorney. I have no doubt that when public defenders have the time and resources available to them that they are just as effective. The issue is whether public defenders are able to provide effective representation to all of their clients. Mr. Vitale argues passionately that they are while simultaneously acknowledging that most public defenders have excessive caseloads. Let me be clear that I am in no way questioning the dedication of Mr. Vitale or the dedication of any of his colleagues from the Monroe County Public Defender’s Office. What I am questioning is the assertion that despite excessive caseloads, public defenders can achieve justice for each person they represent.
One of the problems with Mr. Vitale’s argument is that it rest on a false dichotomy. On the one hand is the argument attributed to Gerry Spence that public defenders are unable to provide adequate representation in every case. On the other hand is his argument that public defenders always provide excellent representation and representation that is equal to that provided by private attorneys. The reality is that neither of these arguments is accurate. The truth is that public defenders provide most, but not all, of their clients with excellent representation. And when public defenders do fail, it is not because of a lack of dedication or effort; it is because they simply have too many cases.
That was the conclusion reached by the 6th Amendment Center in a report on the Delaware Office of the Public Defender released last February.[ii] In “The Crucible of Adversarial Testing: Access to Counsel in Delaware’s Criminal Courts,” the 6th Amendment Center found that “able attorneys are working in a structure that prevents them from meeting constitutional adequacy despite their commitment, dedication and hard work.” Even though these public defenders were able get acquittals on a regular basis, a fact which had many of them convinced that they were providing effective representation, the 6th Amendment Center concluded that “these statistics and stories simply underscore our main finding that systemic impediments force OPD to triage justice to some clients at the expense of others.”
The truth is that public defenders triage their cases. That is how we deal with excessive caseloads. When we have to resort to triage, when we make quick decisions about who we can save, it is inevitable that we will make mistakes. We never see those mistakes because they are mistakes of omission. I’ll never know how many mistakes I made because I didn’t spend enough time talking to a client. They might have had a defense, there might have been mitigating evidence, but I didn’t have enough time to investigate their case. I focused my efforts on the cases where I thought I could make a difference, on the clients who I thought had a viable defense. I spent less time on the cases where I thought my representation wouldn’t make a difference, on the clients who I thought would be convicted no matter what I did. Everyone in the office referred to these cases as “dead” cases; these were the clients who couldn’t be saved. Can there be any clearer indication that we triaged our cases then the fact that we referred to some cases as being “dead”?
Mr. Vitale tries to reconcile the fact that public defenders have excessive caseloads with his belief that public defenders always “achieve justice” by claiming that public defenders have developed specialized skills to deal with excessive caseloads. The idea that public defenders have developed a special set of skills that allow them to cope with excessive caseloads is, at best, wishful thinking. But I actually believe it to be far worse than that. I believe it is extremely dangerous to argue that the average public defender is capable of doing more work than the average private defense attorney. The belief that because of our dedication and commitment we can handle more case, more efficiently than the private bar, and get the same results, has greased the wheels of our assembly line system of justice. I have no doubt that public defenders have the skills, knowledge and dedication to conduct multiple investigations at the same time but at some point they will become overwhelmed by the sheer number of investigations they need to perform. The ability to multitask doesn’t somehow make hundreds of cases manageable.
Why is it that we can all agree that public defenders have excessive caseloads but that we almost never see public defenders trying to withdrawing from cases? Why do we continue to claim that we can do the impossible? In “Securing Reasonable Caseloads: Ethics and Law in Public Defense”, Professor Norman Lefstein devotes an entire chapter to this question. He concludes that various psychological factors in combination with the organizational culture of public defenders create an environment where excessive caseloads are regarded as normal.[iii] That was certainly the case in the office where I worked and we know it to be the case in offices all across the country.
When it’s normal to have too many cases you don’t complain about it. Why would you? If you complain to a supervisor they will tell you that everyone has too many cases. If you are somehow able to convince that supervisor to redistribute some of your cases they simply wind up on the desks of your colleagues. You don’t want that to happen because it doesn’t seem fair to them and you don’t want to be seen as not being able to pull your own weight. The warrior mentality is part of the culture of indigent defense: you train hard, you fight battles, and you sacrifice yourself, all for the defense of others. That is something that has stayed with me and I expect will always be a part of me. I’m acutely aware of that as I write this because there is a part of me that fears I’ll be labeled as “soft” for admitting that I wasn’t able to fight as hard as I should have for my clients or even worse, that I’ll be seen as someone who ran from the trenches and sought shelter in an ivory tower.
I also spent nights walking around housing projects looking for witnesses, weekends on Riker’s Island visiting clients and holidays at my desk finishing motions to suppress but that isn’t necessarily a good thing. People burn out. Public defenders who soldier on no matter what and act like they have everything under control aren’t just deluding themselves, they are unintentionally demoralizing some of their colleagues. The public defenders that are being honest with themselves and feel overwhelmed by their caseloads start to think there is something wrong with them and question whether they are really cut out for the job. We need to stop acting like what you need to go through to get the job done is a badge of honor and treat it for what it really is: a sign that we’ve got more work then we can do. Coming out of law school I was one of 18 new attorneys assigned to the Manhattan office. Within 5 years, there were only 6 of us left. The twelve lawyers who left were all smart, dedicated and passionate but the stress of long hours, overwhelming workload and the poor pay made them seek other career paths.
Stopping to complain isn’t a luxury. To paraphrase Justice Black’s opinion in Gideon, complaining is a necessity and not a luxury.[iv] Over the last 50 years we have seldom complained and that is one of the reasons our indigent defense system is in crisis. When we are surrounded by injustice not complaining about it is cowardice, not courage.
Pointing out that excessive caseloads make it practically impossible for public defenders to deliver effective representation to every client is not “wiping your feet on the backs of those sacrificing themselves.” The idea that those who perform what many believe to be a heroic service should be immune from criticism is the type of sentiment that typically comes from law enforcement. As the guardians of liberty for so many, we must be open to criticism and we must be honest with ourselves about our ability to defend the rights of our clients. As a community, we do ourselves, our clients and our nation a disservice by not admitting our limitations.
I am not calling upon all public defenders to say that they are ineffective but at the same time I’m not content to let the argument that every public defender is providing representation that is equal to or better than the private bar go unchallenged. I believe that our failure to admit the effect that excessive caseloads have on the quality of the representation that we are able to deliver is hurting our cause. The situation will never get better if public defenders continue to claim that they are overcoming every obstacle placed in their path.
I’m also not suggesting that the answer is to admit that we are ineffective in every case. The answer is to establish performance standards and then document whether or not we are meeting those standards. We should trumpet our successes but we should also document our failures. “The Missouri Project: A Study of the Missouri Public Defender System and Attorney Workload Standards” provides a blueprint for doing just that.[v]
If NAPD is to be a voice for public defense then it must speak clearly and consistently about the current crisis in indigent defense. As an organization, we cannot claim that public defenders have excessive caseloads but then deny the consequences that inevitably flow from them. We cannot continue to claim, that despite the fact that we function in a system that sets us up for failure, it never happens and we somehow always find a way to snatch victory from the jaws of defeat.
I’m certain that I failed some of my clients. That isn’t easy to admit. It took me years to come to that realization and it was made after I had stopped being a public defender. But unless more public defenders find the courage to admit that excessive caseloads make it impossible to render effective representation in every case, we will never achieve NAPD’s goal of systemic reform of indigent defense.
The truth is that over the years there have been dozens of studies comparing the effectiveness of public defenders, appointed counsel and private defense lawyers. These qualitative studies of lawyer effectiveness have produced varied results. Some have concluded that public defenders are more effective than retained counsel while other studies have reached the opposite conclusion.[i] The real issue isn’t whether public defenders can be just as effective as assigned counsel or a private attorney. I have no doubt that when public defenders have the time and resources available to them that they are just as effective. The issue is whether public defenders are able to provide effective representation to all of their clients. Mr. Vitale argues passionately that they are while simultaneously acknowledging that most public defenders have excessive caseloads. Let me be clear that I am in no way questioning the dedication of Mr. Vitale or the dedication of any of his colleagues from the Monroe County Public Defender’s Office. What I am questioning is the assertion that despite excessive caseloads, public defenders can achieve justice for each person they represent.
One of the problems with Mr. Vitale’s argument is that it rest on a false dichotomy. On the one hand is the argument attributed to Gerry Spence that public defenders are unable to provide adequate representation in every case. On the other hand is his argument that public defenders always provide excellent representation and representation that is equal to that provided by private attorneys. The reality is that neither of these arguments is accurate. The truth is that public defenders provide most, but not all, of their clients with excellent representation. And when public defenders do fail, it is not because of a lack of dedication or effort; it is because they simply have too many cases.
That was the conclusion reached by the 6th Amendment Center in a report on the Delaware Office of the Public Defender released last February.[ii] In “The Crucible of Adversarial Testing: Access to Counsel in Delaware’s Criminal Courts,” the 6th Amendment Center found that “able attorneys are working in a structure that prevents them from meeting constitutional adequacy despite their commitment, dedication and hard work.” Even though these public defenders were able get acquittals on a regular basis, a fact which had many of them convinced that they were providing effective representation, the 6th Amendment Center concluded that “these statistics and stories simply underscore our main finding that systemic impediments force OPD to triage justice to some clients at the expense of others.”
The truth is that public defenders triage their cases. That is how we deal with excessive caseloads. When we have to resort to triage, when we make quick decisions about who we can save, it is inevitable that we will make mistakes. We never see those mistakes because they are mistakes of omission. I’ll never know how many mistakes I made because I didn’t spend enough time talking to a client. They might have had a defense, there might have been mitigating evidence, but I didn’t have enough time to investigate their case. I focused my efforts on the cases where I thought I could make a difference, on the clients who I thought had a viable defense. I spent less time on the cases where I thought my representation wouldn’t make a difference, on the clients who I thought would be convicted no matter what I did. Everyone in the office referred to these cases as “dead” cases; these were the clients who couldn’t be saved. Can there be any clearer indication that we triaged our cases then the fact that we referred to some cases as being “dead”?
Mr. Vitale tries to reconcile the fact that public defenders have excessive caseloads with his belief that public defenders always “achieve justice” by claiming that public defenders have developed specialized skills to deal with excessive caseloads. The idea that public defenders have developed a special set of skills that allow them to cope with excessive caseloads is, at best, wishful thinking. But I actually believe it to be far worse than that. I believe it is extremely dangerous to argue that the average public defender is capable of doing more work than the average private defense attorney. The belief that because of our dedication and commitment we can handle more case, more efficiently than the private bar, and get the same results, has greased the wheels of our assembly line system of justice. I have no doubt that public defenders have the skills, knowledge and dedication to conduct multiple investigations at the same time but at some point they will become overwhelmed by the sheer number of investigations they need to perform. The ability to multitask doesn’t somehow make hundreds of cases manageable.
Why is it that we can all agree that public defenders have excessive caseloads but that we almost never see public defenders trying to withdrawing from cases? Why do we continue to claim that we can do the impossible? In “Securing Reasonable Caseloads: Ethics and Law in Public Defense”, Professor Norman Lefstein devotes an entire chapter to this question. He concludes that various psychological factors in combination with the organizational culture of public defenders create an environment where excessive caseloads are regarded as normal.[iii] That was certainly the case in the office where I worked and we know it to be the case in offices all across the country.
When it’s normal to have too many cases you don’t complain about it. Why would you? If you complain to a supervisor they will tell you that everyone has too many cases. If you are somehow able to convince that supervisor to redistribute some of your cases they simply wind up on the desks of your colleagues. You don’t want that to happen because it doesn’t seem fair to them and you don’t want to be seen as not being able to pull your own weight. The warrior mentality is part of the culture of indigent defense: you train hard, you fight battles, and you sacrifice yourself, all for the defense of others. That is something that has stayed with me and I expect will always be a part of me. I’m acutely aware of that as I write this because there is a part of me that fears I’ll be labeled as “soft” for admitting that I wasn’t able to fight as hard as I should have for my clients or even worse, that I’ll be seen as someone who ran from the trenches and sought shelter in an ivory tower.
I also spent nights walking around housing projects looking for witnesses, weekends on Riker’s Island visiting clients and holidays at my desk finishing motions to suppress but that isn’t necessarily a good thing. People burn out. Public defenders who soldier on no matter what and act like they have everything under control aren’t just deluding themselves, they are unintentionally demoralizing some of their colleagues. The public defenders that are being honest with themselves and feel overwhelmed by their caseloads start to think there is something wrong with them and question whether they are really cut out for the job. We need to stop acting like what you need to go through to get the job done is a badge of honor and treat it for what it really is: a sign that we’ve got more work then we can do. Coming out of law school I was one of 18 new attorneys assigned to the Manhattan office. Within 5 years, there were only 6 of us left. The twelve lawyers who left were all smart, dedicated and passionate but the stress of long hours, overwhelming workload and the poor pay made them seek other career paths.
Stopping to complain isn’t a luxury. To paraphrase Justice Black’s opinion in Gideon, complaining is a necessity and not a luxury.[iv] Over the last 50 years we have seldom complained and that is one of the reasons our indigent defense system is in crisis. When we are surrounded by injustice not complaining about it is cowardice, not courage.
Pointing out that excessive caseloads make it practically impossible for public defenders to deliver effective representation to every client is not “wiping your feet on the backs of those sacrificing themselves.” The idea that those who perform what many believe to be a heroic service should be immune from criticism is the type of sentiment that typically comes from law enforcement. As the guardians of liberty for so many, we must be open to criticism and we must be honest with ourselves about our ability to defend the rights of our clients. As a community, we do ourselves, our clients and our nation a disservice by not admitting our limitations.
I am not calling upon all public defenders to say that they are ineffective but at the same time I’m not content to let the argument that every public defender is providing representation that is equal to or better than the private bar go unchallenged. I believe that our failure to admit the effect that excessive caseloads have on the quality of the representation that we are able to deliver is hurting our cause. The situation will never get better if public defenders continue to claim that they are overcoming every obstacle placed in their path.
I’m also not suggesting that the answer is to admit that we are ineffective in every case. The answer is to establish performance standards and then document whether or not we are meeting those standards. We should trumpet our successes but we should also document our failures. “The Missouri Project: A Study of the Missouri Public Defender System and Attorney Workload Standards” provides a blueprint for doing just that.[v]
If NAPD is to be a voice for public defense then it must speak clearly and consistently about the current crisis in indigent defense. As an organization, we cannot claim that public defenders have excessive caseloads but then deny the consequences that inevitably flow from them. We cannot continue to claim, that despite the fact that we function in a system that sets us up for failure, it never happens and we somehow always find a way to snatch victory from the jaws of defeat.
[i] A detailed discussion of these studies can be found in “Criminal Defense Lawyer Moneyball: A Demonstration Project” by Professors Ronald Wright and Ralph Peeples available here: http://papers.ssrn.com/sol3/papers.cfm?abstract_id|EQUALS|2190570.
[ii] The full text of the report is available here: http://sixthamendment.org/6ac/6AC_delawarereport.pdf
[iii] Chapter 4 of “Securing Reasonable Caseloads: Ethics and Law in Public Defense” deals specifically with these issues and the entire book is available here: http://www.americanbar.org/content/dam/aba/publications/books/ls_sclaid_def_securing_reasonable_caseloads.authcheckdam.pdf
[iv] “That government hires lawyers to prosecute and defendants who have the money hire lawyers to defend are the strongest indications of the wide-spread belief that lawyers in criminal courts are necessities, not luxuries.” Gideon v. Wainwright, 372 U.S. 335, 344 (1963)
[v] Available at: http://www.americanbar.org/content/dam/aba/events/legal_aid_indigent_defendants/2014/ls_sclaid_5c_the_missouri_project_report.authcheckdam.pdf