TIDC Releases Studies on Caseloads

The Texas Indigent Defense Commission (TIDC) just released caseload studies for representation in juvenile<http://www.tidc.texas.gov/media/50834/161108_wcl-juvenile.pdf> and appellate<http://www.tidc.texas.gov/media/50833/161108_wcl-appellate.pdf> cases. These are addendums to the 2015 publication of "Guidelines for Indigent Defense Caseloads<http://www.tidc.texas.gov/resources/publications/reports/special-reports/weightedcaseloadstudy.aspx>" for adult felony and misdemeanor cases. The studies were a result of legislation (HB 1318), introduced by Texas State Senator Rodney Ellis. Senator Ellis sponsored the Texas Fair Defense Act of 2001 (SB 7), which created TIDC and set standards for the funding and quality of indigent defense in Texas.

Each report was created for TIDC by the Public Policy Research Institute of Texas A&M University (PPRI). The reports were assisted by two national experts on caseload studies, Norman Lefstein, Dean Emeritus and Professor of Law at Indiana University Robert H. McKinney School of Law, and Steve Hanlon, public interest attorney and Adjunct Professor of Law at St. Louis University School of Law.

The reports set standards for defense attorney caseloads in a single state, albeit a large and diverse one. Texas has 254 counties. Each is a separate criminal justice system in terms of funding and local practices for the appointment and compensation of counsel. TIDC has authority to oversee the implementation of the Fair Defense Act and distribute grant funds, but many procedures, including monitoring attorney caseloads, have remained local prerogatives. Some counties, including Harris and Dallas, have tolerated extremely high appointment rates, with individual lawyers accepting more than 500 felonies or 900 misdemeanors in a single year.

In 1973, the National Advisory Commission on Criminal Justice Standards and Goals, organized by the federal government, recommended national annual maximum caseload numbers which included not more than 150 felony cases per year per lawyer, or 400 misdemeanor cases (excluding traffic offenses), or 200 juvenile cases, or 25 appeals. These "NAC standards" were developed with the assistance of experienced practitioners, but without a statistical analysis or a scientific methodology. They were not specific to any particular jurisdiction. However, for many years, they were considered valid as maximum recommended caseloads. TIDC used them as a grant requirement for the creation of new public defense systems, including the Harris County Public Defender's Office.

Criticism of the NAC standards led to a caseload study in Missouri in 2014. Missouri has a statewide public defender office that has been traditionally underfunded and understaffed. Efforts to show the legislature and Governor that public defender caseloads violated the NAC standards were challenged as lacking an empirical basis. The Missouri study, which included an analysis of actual caseloads, a timekeeping study, and a review by experts (called a Delphi Panel), resulted in recommended caseload maximums even lower than the NAC standards.

The Missouri study was the basis for HB 1318 in Texas. The Texas reports sought to answer two questions: (1) How much time is currently being spent on the defense of court-appointed criminal cases? (2) How much time should be spent to achieve reasonably effective representation?

The methodology had several elements. The first involved bringing together indigent defense stakeholders as an advisory panel to determine what data needed to be gathered and in what form. Next, there was a timekeeping study using software from JusticeWorks, LLC, tracking the work of individual attorneys over months using identical time categories. Participants included private attorneys and public defenders. Then was a "sufficiency study" in which the timekeeping group and other attorneys were given summaries of the work calculated in the time study, broken down by category (e.g., negotiations/meetings in a 3rd degree felony). The lawyers were asked if the actual time recorded was less or more than what was sufficient for the task and also to assess the frequency performed.

Finally, a "Delphi Panel" of 18 lawyers for each study reviewed the recommended task times from the sufficiency study and worked with facilitators from PPRI, as well as Dean Lefstein and Steve Hanlon, to discuss as a group, the final recommendations. The Delphi lawyers were each experts in their field of criminal law, many board certified. This multiple review, broken down by task, compared to actual work, and examined by many persons with specialized knowledge in the work of criminal defense, made for reliable findings that were not merely the opinion any individual or a static group.

The result of the study in 2015 was a finding that selecting a maximum caseload of 150 felonies per lawyer per year, based upon the opinions of a group of practitioners, however experienced, was not a dependable measure. A state-specific evaluation, based on actual work, measured by task and time, and reviewed multiple times by experts in the field, found that 77 First Degree Felonies, 105 Second Degree Felonies, 144 Third Degree Felonies, or 174 State Jail Felonies, are the maximum recommended felony caseloads for Texas lawyers. Rather than the NAC misdemeanor recommendation of 400 cases per lawyer per year, the Texas study found that either 216 Class A Misdemeanors or 236 Class B Misdemeanors were the most an attorney should handle in a single year. On average, with a mix of case levels, attorneys can reasonably handle about 128 felonies or 226 misdemeanors, or a relative mix of each.

Similarly, the new Juvenile Addendum generally recommended lower caseload maximums than the 200 per lawyer per year in the 1973 NAC report. Recognizing that many lawyers representing juveniles do not have access to investigators, the study created caseloads for each situation. For those cases where the state seeks a determinate felony sentence or certification as an adult the maximums were 36 cases with an investigator or 30 cases when none is used. Where the state seeks a non-determinate felony sentence the maximums were 127 cases using an investigator or 108 without. In those cases where the state is pursuing a misdemeanor, or merely supervision, an attorney may accept up to 230 cases with an investigator and 210 when not available. Therefore, with a mix of juvenile cases, the maximum is 168, under the 200 total recommended by NAC.

The Appellate Addendum recommends a caseload closer to the NAC Standard of 25. The prime factor is the length of the record. Although an appeal from a short record could conceivably take many hours to complete, and a long record much less time, the basic premise is sound. Over the course of a year a mix of short and long records is going to allow for an average maximum of about 31.2 cases per lawyer each year. More specifically, records exceeding 1500 pages allow a maximum of 14 cases per year. For 500 to 1500 pages it would be 20 cases. Records of 100 to 500 equal 30 cases and less than 100 a lawyer can take up to 40 cases.

The original report and addendums have great value. They provide a reasonable methodology to set attorney case maximums in criminal cases for adults, juveniles and appeals. They are specific to Texas and useful for counties to plan their spending for indigent defense. Most counties under-fund the cost of representing criminal defendants, particularly in regard to investigation and expert services. Some counties, especially Harris and Dallas, allow attorneys to receive volume appointments resulting in insufficient time spent on the necessary tasks identified by these reports. The reports should provide a basis to argue for increased funding by counties and the state. TIDC and PPRI, and all those who assisted in the reports, should be commended for their valuable service.