2014 in Review: Ending Excessive Workloads

From the NAPD 2014 Annual Report. Submitted by Dawn Deaner.

Excessive workloads, caused by insufficient public defense resources, are the most serious and urgent threat to the delivery of constitutional defense services for public defender clients in America today.  In virtually every public defender system in the country, resources for public defense are appropriated irrespective of workload, contested by parties with obvious conflicts of interest (judges, prosecutors, sheriff’s and others), and, while woefully inadequate, difficult to quantify due to a lack of reliable data.

While excessive workloads and its tandem issue of insufficient resources has been identified as the primary problem in public defense systems for more than two decades, the cultural revolution that will resolve this challenge has just arrived.

Steve Hanlon (Co-Chair, NAPD Workloads Committee, Professor of Practice, St. Louis University School of Law) says, “A new generation of indigent defense litigation is in the making. It will demand enormous cultural changes from public defenders to take advantage of this opportunity. They must join the twenty-first century and develop metrics that can justify their need for adequate funding by producing reliable data that can establish that their caseloads are excessive. That means permanent timekeeping for every public defender. That’s a huge culture change, but it’s a change that has the potential to give life, meaning, and metrics to Strickland’s elusive performance standard.”

Systems around the country, including Missouri and Rhode Island’s statewide systems, and the Knox County Public Defender’s Community Law Office, have all begun to plan, collect and analyze a statistically significant critical mass of reliable data with permanent timekeeping that will establish workload limits, necessitate effective case refusal litigation, radically transform budgeting requests and appropriations, and bring accountability not only to the defense function, but to all the member agencies in the criminal justice system.

During 2014, NAPD co-sponsored the Workload Leadership Institute, bringing more than 60 leaders from around the country to a three-day training in Lexington, KY. NAPD was able to provide scholarships to 22 defender-leaders who were committed to ending excessive workloads in offices that have been historically underserved by national training opportunities. Working with experienced faculty and in small groups, this conference trained, provided feedback on local reform plans and built a network of support to move forward. NAPD provided follow-up and support for scholarship attendees 50-days and again 100-days after the conference.

Traci Smith (Chief Public Defender for Minnehaha County Sioux Falls, SD) says, “After I returned from the Workload Leadership Institute, NAPD leaders Dennis Keefe and Fred Friedman drove to Sioux Falls, met with our in-coming State Bar President, and then spent the afternoon working with me and my chief deputy strategizing ideas to accomplish our short and long-term goals… It’s often very hard to ask for help.  I was grateful for the opportunity to attend the Leadership Institute and I really appreciated having Fred and Dennis come to my office after the training.  Just knowing that they were willing to look at the strategies I worked on in my small group and mentor me one-on-one afterwards to put those strategies into action when I got back home was more helpful than anything I ever could have done on my own.”

The Workload Committee, representing diverse systems and structures from around the country, created and unanimously recommended a Workloads Position Paper that was unanimously approved by the NAPD Steering Committee in March, 2015.  NAPD believes the time has come for every public defense provider to develop, adopt, and institutionalize meaningful workload standards in its jurisdiction.  Believing that a lawyer’s well-spent time is the single most important factor in a client receiving effective and meaningful representation, NAPD’s Workload Position Paper strongly recommends that meaningful evidence-based standards for public defense workloads can best be derived and institutionalized through ongoing, contemporaneous permanent timekeeping by public defense providers. This NAPD position paper is the first national statement on workloads that requires permanent timekeeping as a condition of meaningful workload evaluation and litigation, and it significantly advances the campaign to end excessive workloads.

NAPD has built numerous resources to support every defender office’s implementation of time-tracking. MyGideon, NAPD’s online resource library, has leadership pages dedicated to workload advocacy, providing accessible information about different methodologies and materials associated with each state’s workload efforts. In November, Mark Stephens, Director of the Knox County Community Law Office (Knoxville, TN) and IT Director Issac Merkle provided a nuts and bolts training for all NAPD members on the specific preparation and opportunity of keeping time in a public defender office. Their session demonstrated how all employees in the Knox County Public Defender's Community Law Office are tracking their time using defenderData's time tracking functionality. This resource is archived in MyGideon and will be continuously populated based on member requests and emerging data.

Mark Stephens (Co-Chair, NAPD Workloads Committee) says, “I have served as the district public defender in Knox County, Tennessee for 25 years and on two different occasions have engaged in workload litigation; 1991 and again in 2007.  Neither time was I successful in part because I lacked the evidenced based data I needed to succeed.  In both efforts I was unable to effectively demonstrate to judges and funders how the lawyers in my office spent their time, nor could I demonstrate how much time it should take my lawyers to competently handle a specific case by offense type.  In 2014 my staff began tracking their time. Time-tracking provides a demonstrable data set memorializing the time and effort staff give to the clients and their cases.  Time tracking provides a data trail that will establish my office as one of the most responsible, transparent, accountable, and reliable agencies in TN state government.  Most importantly, time tracking will provide the greatest opportunity to regulate our workloads. I congratulate NAPD for recognizing the value of time tracking and encouraging its members to overcome the historical resistance to time-tracking in order to free ourselves from the burden of excessive workloads that have harmed our clients for decades.”

NAPD is also continuously consolidating the methodologies of workload assessments – first done in Missouri through the work of the American Bar Association and RubinBrown and then improved in Texas by the Texas Indigent Defense Commission so that the cost of conducting workload assessments are becoming more affordable for public defender offices. Often the offices facing the most extreme experiences of excessive workloads are the least capable of dedicating resources to quantifying the crisis. While the original RubinBrown assessment in Missouri was projected to cost $200,000, it was deeply discounted by the firm to ultimately cost $70,000. But the prototype was established and now, even including improvements from other, later assessments, blueprints for workload assessments are being developed that  may have the potential to drive the costs of these assesments down to as low as approximately $30,000 per office.

While simultaneously evaluating the “supply side” of public defense delivery, NAPD is laying the foundation to use this data address the “demand side,” encouraging lawmakers to remove conduct that has no public safety consequences from criminal codes, shifting them into civil infraction codes instead.

The embrace of time-tracking in public defender offices is not only going to bring workloads for public defenders into compliance with professional and ethical standards, but it will bring pressure for comparable accountability to every member agency in the justice system, and will be a powerful tool to reject expensive and ineffective criminal  “justice” programs, and replace them with efficient, effective, evidence-based alternatives.