Not Your Father’s Public Defender
This content was originally published in the 2015 NAPD Annual Report. Stephen Hanlon co-chairs the NAPD Workloads Committee and is NAPD's General Counsel. Photo credit goes to Travis Spalding with The Advocate.
A public defender organization that has: (1) completed a rigorous workload study based upon widely accepted defense performance standards; (2) used a Delphi panel of experienced public defenders and criminal defense practitioners based on The Missouri Project principles; and (3) instituted permanent timekeeping, is not your father’s public defender. The Missouri Project was a study of the workload of the Missouri Public Defender done jointly by ABA/SCLAID and RubinBrown, a national accounting and consulting firm. It has been described as "a watershed moment" in public defense.
A public defender organization that has completed such a rigorous workload study can do things that other public defender organizations cannot.
Armed with both permanent timekeeping data (the world of “is”) and a workload study conducted by a rigorous application of the principles of the Delphi methodology to its workload (the world of “should”), such a public defender organization is now able to produce comparative data and analytics that can demonstrate – by office, by lawyer, by case type and by case task – exactly what it's lawyers (a) are doing, (b) are unable to do because of their excessive caseloads, and (c) should be doing according to prevailing professional norms. These public defender organizations can then appear before legislatures as the most accountable, the most reliable, the most responsible, and the most transparent actors in the criminal justice system.
When the Missouri Public Defender took its permanent timekeeping data and workload study to a two-thirds Republican legislature, the Missouri Legislature approved its largest appropriation increase for the defender agency in 15 years. And if such a public defender organization is not successful in the legislature, it can proceed with litigation, buoyed by decisions of the Missouri Supreme Court (2012) and the Florida Supreme Court (2013) that upon a proper showing it is entitled to workload relief when its lawyers' workloads are so high that they can no longer provide reasonably effective assistance of counsel to all of their clients.
In 2015, workloads studies of this kind were started in the statewide systems of Colorado, Louisiana, Rhode Island, and Tennessee. In all these cases, the blueprint for workloads data collection and analysis follows The Missouri Project model created by the ABA/RubinBrown study done in Missouri in 2014 and refined further that year in Texas. In Louisiana – where more people are incarcerated than any other jurisdiction in the world – NAPD is partnering with the Louisiana Public Defender Board (and the 42 district public defender offices it oversees), the ABA, and Postlewaithe & Netterville, the largest accounting firm in Louisiana, to bring unassailable data and analytics to the effort to end the resource deficiency that has threatened poor people’s access to justice since the right to counsel was established in 1963.
This is a significant development in the decades-long effort to end excessive workloads. A new public defender – and a new public defender system – now has the standing to lead criminal justice reform because it has first reformed itself with this remarkable cultural revolution. Leaders in every jurisdiction currently engaged in workload studies using permanent timekeeping and The Missouri Project Principles are contributing members of NAPD.
NAPD released its Workloads Position Paper on March 24, 2015. Based on the conviction that a lawyer’s well-spent time is the single most important factor in a client receiving effective and competent 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 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 continued its effort to equip public defender offices with the resources and support to end excessive workloads. Throughout 2015, NAPD developed new workload standards (which will be published in the summer of 2016); equipped local, state and federal policymakers with data and draft policies to reduce workload by reclassifying hundreds of low-level, non-violent offenses into non-criminal infractions; conducted intensive research on misdemeanor representation and the prevalence of “no counsel courts” in NAPD members' jurisdictions; secured financial and intellectual capital for workload studies in select jurisdictions; and undertook intensive internal and external communications work to end excessive workloads.
“No one becomes a public defender to tell a poor person, ‘I can’t help you.’ But in November 2015, a 32-year-old man was arrested and held on $1.7 million bond. He immediately asserted his innocence, but the police said a witness had identified him. His family hired a private lawyer who went to Houston to locate video of the suspect shopping with his girlfriend at the time of the shooting. The charges were dropped. With our workloads and insufficient resources, I realized my office could not have guaranteed the timely retrieval of this important evidence before it would have been routinely erased. That would have left an innocent man to face trial for his life. So we have begun refusing new cases. The workloads assessment that we started in 2015 is essential to ensuring that we can give our clients what they are constitutionally guaranteed.” — Derwyn Bunton, NAPD member and District Defender, Orleans Public Defenders (New Orleans, LA).
"I've been the leader of a public defender office for 26 years. During that time I have engaged in caseload litigation twice, in 1991 and in 2007. Both of those efforts were some of the most difficult, time consuming, and painful experiences I've had as a public defender. I can say without hesitation that I never want to go through it again. But if a similar situation arises, I won't hesitate to go once more into the breach. I won't have a choice. Clients deserve lawyers who have the time, will and resources to provide high quality representation. Excessive workloads steal a lawyer's time, break a lawyer's will and resolve, and consume precious resources. Workload litigation becomes a moral and ethical imperative." — Mark Stephens, NAPD Chair and District Public Defender, Knox County Public Defender’s Community Law Office (Knoxville, TN)