Using Caseload Standards, Time Logs, and Other Tools to Get Public Defender Funding

Even in the best of economic circumstances, public defenders routinely find themselves at, or at least near, the end of the line when state and local governments hand out funding.  We shouldn’t be, but we are. It’s not even a red versus blue-state phenomenon, though it is certainly worse in some areas. The sad fact remains – no one ever got re-elected for funding indigent defense.

And so we have to make our case in a different way. It is not enough to say that it is government’s obligation, though it is, or that everyone has a guaranteed right to the effective assistance of counsel, though they do. We have to do it better than everyone else.  Better than education advocates. Better than transportation. Way better than police and corrections.  Hell, we even have to do it better than the Parks Department.

We have to sell funding public defenders as a pennies-on-the-dollar strategy to over-incarceration that some states may support but none can afford.  For those who are convicted or accept pleas of guilt, we have to demonstrate how public defenders are the most effective tool to help the system distinguish between those we are mad at and those we are afraid of; or, to put it in terms that appropriators can understand, ‘stop wasting taxpayer dollars on people who are poised to be taxpayers themselves’.  It’s a two-fold budgetary swing when the state factors in having to use public benefits to take care of dependents who are left behind.   

We have to talk in fiscal terms. For me, in Missouri, the prison budget has risen from $575 million to more than $710 million in just ten years – that’s more than a $10 million increase each year, and with no sign of a reversing trend. That’s the epitome of big government. And you ask them what their strategy is for changing course – if they have one, and they often don’t, it is typically not robust criminal justice reform. So we have to use data to show how public defenders offer the best goal-line defense (pardon the sports metaphor) to an artificially inflated prison system and provide the best return on investment to fight over-incarceration, keep families together, and reduce the reliance on public benefits (for good measure, why not throw in one or two lines about due process, liberty and the Constitution).  

Toward that end, we’re an open book and we use that to our advantage. Our lawyers record their time – the first statewide system in the country to require time logging.  I show them our numbers.  The number of cases per lawyer and how many hours we actually spend on each case given the enormous number of clients that each attorney has. We then compare that against how many hours we should be spending on a case, given the case type and the caseload standards we developed based upon a study conducted by RubinBrown, one of the nation’s leading accounting and consulting firms, at the behest of the American Bar Association (The Missouri Project), which is available at: www.indigentdefense.org.   The study was based on a methodology developed by The Rand Corporation.  

No longer do I have to speculate or use anecdote to describe to legislators how many hours a public defender spends waiting in court because judges give private attorneys priority, or the percentage of an attorney’s time spent opening and closing files. Ask a fiscally conscientious legislator if they think taxpayers should pay an attorney to sit in court for hours and then end their day performing ministerial tasks that support staff can do for less?  Also, I can show them the precise amount of windshield time our attorneys spend each week handling conflict cases in a neighboring circuit.  “You want taxpayers to pay us to drive around, or do you want us in court handling our cases?” 

And then show legislators a side-by-side comparison of how much they are spending on prisons versus how much they are contributing to indigent defense. There is a glaring connection between the two in Missouri, and chances are we are not alone.  Missouri is 8th highest in the per capita rate at which we incarcerate our citizens and second to last in indigent defense funding per capita.  Perhaps, the fact that the state contributes so few dollars to public defenders is a significant factor as to why they have to spend so very much on incarceration costs. 

Put forth in these terms, this year Missouri’s very conservative legislature gave us enough money to hire private attorneys to handle all of our conflicts and also added ten new positions to boot. It represents a 14|PERCENT| increase in our funding – the largest amount in more than two decades.  It was a government efficiency argument that carried the day – and we had the data to back it up.

So, what happens if you conduct a caseload review, require your attorneys to time log, and your legislature is still not motivated?  Turn up the heat and give them the option – provide reasonable funding or face a claim that individuals are being systematically deprived of their constitutional right to effective counsel due to funding levels; and now you have the data to prove it -a data driven caseload study makes for an excellent exhibit.

I’m not going to lie. This is a long row to hoe, and I had the benefit of coming in after the hard work was done, though I’m still getting the same push back that existed on a much larger scale when this venture was undertaken. “You want me to spend part of everyday accounting for how I spend it when I’m looking at a mountain of files?” Touche’. 

Attorneys want to spend time on something that advances their objective. It’s an instinctive human response.  Most of the time that’s casework and not some mindless bureaucratic task, which is how they see it absent buy-in on how they are building a case for bringing the defense side of the adversarial process to scale. 

And as the person who has the responsibility to dole out resources system-wide, time logging has other benefits.  For instance, it helps me assess how to allocate the ten new positions I’m set to receive, plus any new positions that will be freed up by getting out of the conflict business. 

I’m going to use data.  Not just the number of cases a local office covers, but we’re going to start there. But that doesn’t tell the entire story. Look at the most strained offices and then make inquiries.  Sometimes a local office covers conflicts in another circuit which requires a great deal of travel, and that should be factored in as well. Also, sometimes a local docketing system forces attorneys to run from courthouse to courthouse. This should all be taken into consideration.

Then I’m going to look at how much each office is working. We’re trial lawyers after all; not exactly a nine-to-five gig.  I want to know whether clients will benefit from additional resources or whether people will just go home a little earlier.  So, I’m going to look at which offices have high caseloads and which offices are also working longer hours.  Time logs provide the answer.

Data is as much a management tool as it is a strategy for making a substantive case.  Each year it seems that public resources become increasingly scarce and competition to acquire those resources becomes fiercer.  No longer can policymakers afford to expend tax dollars based solely on political ideology or the fact that a given group has always received certain funding. We are living in the world of evidence-based practices and public accountability and so indigent defense needs to set the standard on efficiency and needs-based budgeting.