Why Our Public Defense Systems Are Collapsing
For over half a century, our public defense systems have struggled to provide people with adequate representation. It is no secret that these systems have been chronically underfunded. Full-time public defenders often lack the time necessary to provide the type of representation their clients deserve because of excessive caseloads. Private attorneys who are willing to accept criminal cases must contend with hourly pay rates that don’t even cover their overhead expenses. Our public defense systems are not necessarily designed to fail, but they are designed to come as close to failure as possible.
These systems have survived in large part because there were law students willing to become public defenders despite the challenges, and there were attorneys in private practice willing to take criminal cases even if they were unprofitable. All the attorneys working in these systems did so, at least in part, because of their commitment to Gideon’s “noble ideal” that every defendant should stand equal before the law. But that commitment is wavering under the weight of economic and social forces that have been building up for over a decade.
Indigent defense providers have always dealt with excessive caseloads and have consistently asked for additional funding to hire more attorneys. And while excessive caseloads are still a problem, the more pressing problem indigent defense providers face is the inability to hire and retain attorneys. Indigent defense providers have gone from worrying about whether an attorney has too many cases, to worrying about whether they can hire enough public defenders or find attorneys who are willing to take cases. Applications to public defender officers are down, attrition is up, and there are many places where private attorneys simply refuse to take criminal cases.
I believe there are four factors that have created what amounts to a shortage of attorneys willing to become public defenders or willing to participate in assigned counsel systems.
The first is law school enrollment. Law school enrollment grew fairly steadily over the course of 50 years until it peaked in 2010 at just over 147,500. In 2010 we were coming out of the Great Recession, which had hit the legal profession hard. While law firms were laying off lawyers during the recession, recent college graduates who couldn’t find entry level jobs thought of law school as a good investment. The result was a glut of recent law school graduates fighting for fewer jobs in the slowly recovering legal marketplace. Law school no longer seemed like a good investment and applications fell drastically each year from 2010 to 2014.
In response, law schools admitted fewer students. By 2017, enrollment had dropped to 110,000, less than enrollment in 1975. And while we have seen a slight uptick in enrollment since then, enrollment remains down 20|PERCENT| from its peak. Meanwhile, the number of criminal cases filed in state courts has remained consistent during that same period, typically between 14 and 15 million a year, peaking in 2019 at more than 15,356,000. So, over the past decade, law schools have produced significantly fewer graduates while the number of criminal cases filed in state courts remained the same.
This decade long drop in the number of law graduates is finally impacting the broader legal profession. Since 2020, the number of lawyers in the United States has been decreasing, something that hasn’t happened since 1915.
The second factor is the rising cost to attend law school and the corresponding increase in student loan debt. The average law school graduate now has $120,000 in law school loan debt. According to the ABA, 33|PERCENT| of law graduates surveyed report taking a job that is less focused on public interest because of student loan debt. Law graduates simply can no longer afford to take jobs that are low paying, even if they would prefer to do those jobs because they align with their values. And while some have touted loan forgiveness programs as a potential solution to the problem of student loan debt, to qualify for the Public Service Loan Forgiveness Program takes at least 10 years and requires 120 monthly payments.
The third factor is that salaries for public defenders and compensation rates for private attorneys who participate in public defense systems haven’t increased despite a significant increase in the cost of living. Not only are public defender salaries low, but they are also decreasing relative to the cost of living. For years, the salaries for public defenders have remained flat. From 2018 to 2022, the average public defender salary increased just 2.4|PERCENT|. During that same period, the consumer price index rose almost 20|PERCENT|. Recent law graduates are also facing rising housing costs. Over the last two years the median rent rose 18|PERCENT| and peaked last year at over $2,000 a month.
According to the National Association for Law Placement, the average starting salary for a public defender was $59,700 in 2022. If we assume that is gross income and we assume a 22|PERCENT| federal income tax rate, that means the average starting public defender’s net pay is $46,566. If that same public defender has $120,000 in student loan debt at 4.99|PERCENT| with a 20-year term, they will have a student loan payment of $791 a month or $9,492 a year. If they are also paying $2,000 a month in rent, then they will be paying $33,492 a year for housing and loan repayment, almost 72|PERCENT| of their net income.
Recent law graduates, who haven’t had to make payments on federal student loan debt because of a pandemic pause, may experience sticker shock when that pause comes to an end in August, if not sooner. Which means that recent law graduates who have been able to make ends meet on their current salary may find they are no longer able to do so in just a few months pushing attrition rates in public defender offices even higher.
Compensation for members of the private bar who choose to participate in public defense systems is just as bad. In many places across the country the compensation rates for lawyers willing to take criminal cases have been frozen for years. Lawyers in New York haven’t seen their hourly rate increase in 18 years while lawyers in Tennessee and Wisconsin waited more than 20 years for a raise. In their Standards for Providing Defense Services, The ABA recommends that “every system should include the active and substantial participation of the private bar.” The private bar’s participation in public defense systems creates elasticity: if caseloads increase for public defenders, the private bar can step in and accept more cases. But the meager compensation offered to members of the private bar has driven them out of our public defense delivery systems. Instead of being elastic, our public defense delivery systems are rigid and about to crack.
The fourth factor is the COVID-19 pandemic. The effects of the pandemic on the sustainability of public defense systems were two-fold. First, there was the impact of the “Great Resignation”. The job of a criminal defense attorney was already stressful enough but the increased risk of contracting COVID-19 in jails and prisons made the job life threatening for some. If people were thinking about leaving or retiring, the pandemic provided the incentive to do just that. Second, with courts shut down due to the pandemic, caseloads rose significantly across the country. Caseloads were barely manageable before the pandemic so the backlog that was created by court closures just added fuel to the fire.
Margins have always been slim for public defenders. It was the type of work and not the amount of pay that attracted people to the job. While public defenders don’t do it for the money, they still need money to do it. The economic reality is that when the price of a legal education goes up and the cost of living goes up while salaries remain steady, public defenders are effectively making less money than they did a decade ago. Factor in a sharp and steady decrease in the number of law graduates and the increase in resignations and retirements caused by the pandemic and you can see why many offices are now understaffed. And this has created a vicious circle: understaffing causes excessive caseloads and excessive caseloads cause attrition which causes understaffing.
And I don’t see any short-term solutions to persistent understaffing. Law schools aren’t going to produce more graduates or lower tuition costs, the cost of living isn’t going to come down, and legislators are not going to approve significant pay raises for public defenders. But even if they did, and a career in public defense became economically viable, law schools simply aren’t producing enough graduates to fill the ranks of depleted public defender offices across the country. And raising hourly rates for members of the private bar is unlikely to lure attorneys back into the practice of criminal law. Again, it is hard to imagine a legislature adopting an hourly rate for assigned counsel comparable to the actual market rate for legal services, but even if they did, it is even harder to imagine attorneys who have spent years in civil practice suddenly filling the assigned counsel rolls in public defense systems.
The simplest solution would be to reduce the number of cases being filed in our criminal courts, but our nation’s addiction to incarceration rules that out. Judges could, and should, dismiss cases without prejudice if a defense attorney isn’t available, but can we really expect that from a judiciary who has been complicit in creating a criminal legal system where excessive caseloads are the norm?
My fear is that courts will respond the way they have in states like Missouri, where they created an unconstitutional wait list for defense counsel, or that judges and prosecutors will work together to take advantage of a loophole in the 6th Amendment’s right to counsel. The 6th Amendment right to counsel, as currently interpreted by the United States Supreme Court, only applies when a conviction will result in actual incarceration. Large numbers of people charged with misdemeanors could have to proceed without counsel if a judge decided at the outset not to impose a jail sentence following a conviction, even though the collateral consequences of that conviction are severe.
It shouldn’t come as a surprise that a system that has spent half a century in crisis eventually collapses. Perhaps we should be surprised that it has survived this long and managed to provide a vernier of legitimacy to our criminal legal system. I think that many of us who have worked in our public defense systems for a significant amount of time have concluded that for things to get better, they must get worse. I think the worst is upon us.