Do As We Say, Not as We Do

The volume and repetition of published material regarding public-defender reform makes my head tired and spinny. It seems that every well-intentioned person or group interested in PD reform has produced a report, study, guideline, standard, compendium or e-library. So many studies and committees and opinions … and yet the evolution of public defense seems stalled, if not regressing.

In a New York Times article about public defenders in various states moving to refuse cases due to excessive caseloads, Norman Lefstein, a professor at the Indiana University School of Law — Indianapolis, and an expert on criminal justice, said, “I think the quality of public defense around the country is absolutely deteriorating. … In my opinion, there should be hundreds of such motions or lawsuits.”

When I first took the time to download the gigantic, thorough Justice Denied, the National Right to Counsel Committee's recent report on the state of public defense, I knew the publication had refreshing insight when it introduced its executive summary by stating, “In approaching these subjects, the Committee was mindful that there have been numerous studies that have cataloged the problems with indigent defense, but these reports have not had significant impact in bringing about improvements.”







Now here is a lengthy study I will read: one that flatly acknowledges the failure of other studies to achieve reform, yet soldiers ahead with 238 pages and 900 footnotes—and the result is impressive in its depth, insight and recommendations. Hopefully someone other than a tired, spinny defender blogger will read it.

Why all the studies and no reform? Why all the talk and no show? Putting aside reasons of crime propaganda, a public ignorant about its government, and the vacuous nature of most media coverage--one reason for the failure of reform action is that public defenders—the army of available fighters--have been excluded from the process of reform, while also being blamed for the failures of the system. The reform effort is rife with paternalistic features, with professors and directors and lawmakers and private attorneys as the parents and the street level defenders as the children. Where does this get us? A lot of talk without action, recommendations for reform without political will, and standards without enforcement.

It is easy to find examples of offices with excessive caseloads. And while there are numerous “caseload standards” floating around out there, it is safe to say 150 felony cases, to give one example, per defender per year is a maximum.

Why, then, are so many defender offices above this criteria?

Here is an example of an ethics opinion that is duly endorsed, published and otherwise given all the auspices of legitimacy, yet in reality signifies little:

Ethics Opinion 03-01, issued April 2003, from the American Council of Chief Defenders

A chief executive of an agency providing public defense services is ethically prohibited from accepting a number of cases which exceeds the capacity of the agency’s attorneys to provide competent, quality representation in every case. The elements of such representation encompass those prescribed in national performance standards including the NLADA Performance Guidelines or Criminal Defense Representation and the ABA defense Function Standards.

If we have widely-accepted caseload standards setting maximum caseload limits, and a bona fide Ethics Opinion saying that a PD director is ethically prohibited from accepting excessive caseloads, why do so many agencies suffer with caseloads that are grossly in excess of numerical and ethical standards?

I have lots of theories about the pressures that compromise directors, but for today I am not going to focus on what is broken, but rather on what we can do. And while I have no heart for telling on people, I have less heart for public defenders and our clients continuing to get screwed. Thus, it seems that the logical step to take from an obvious ethical violation is an ethics complaint.

Here is my promise to put words into action: If any of you public defenders out there can show that your office exceeds an ethically tenable caseload, I will write a complaint to the appropriate bar association. Not because I particularly like getting anyone in trouble, but because we should all stand behind the ethical standards we endorse.