Monday, January 11, 2010

How to be a Public Defender Revolutionary, Part II

Yesterday, Part I: Read the following publications:

ABA Formal Opinion 06-441


ABA Eight Guidelines

(because they provide that public defenders have the right and ethical duty to decline to accept excessive caseloads)

Today, Part II: Caseload Standards

I n the early days, I thought I could handle almost any caseload. After working through those first trials (you know the ones, where you drive to your office at 4:00 a.m., thinking, please let me be involved in a minor car crash where I am hospitalized for long enough to avoid the trial but maybe please not permanently disfigured) I thought I was hot shit. Sure I was in emergency-mode 90 percent of the time, and in bar-mode the other 10, but I thrived on emergencies, I thought.

For my fellow public defenders and me, it was a sign of toughness to have too much heaped on us, to shoot from the hip, and to kick the state's ass some, too. The longer I've "practiced" at this job, though, the more I know that most of us have too many cases, regardless of whether we exceed any official caseload standards, and having too many cases doesn't make us tough, it beats us down.

The first thing I have to say about caseload standards is: 1) They are manufactured crap, pulled out of thin air; and 2) it is really important that we have them.

According to Justice Denied, the National right to Counsel Committee's comprehensive report, the numbers come from a 1973 report by the National Advisory Commission (NAC) on Criminal Justice Standards and Goals, funded by the federal government. The commission recommended the following maximum annual caseload for a public defender office, i.e., on average, the lawyers in the office should not exceed, per year, more than 150 felonies; 400 misdemeanors; 200 juvenile court cases; 200 mental health cases; or 25 appeals.

I first started looking into the basis of caseload standards about six years ago, when the felony lawyers in my office were dying, but our director could not pursue additional lawyers “because our numbers were OK.” At the time we had about 180 felonies per lawyer per year, but due to an inspiring founding director, we also had a strong motion and trial practice. We weren’t giving in to bad plea bargains, but we were beginning to crack, mainly because the prosecutors outnumbered us about 2.5 to 1.

I remember arguing at the time, “but 180 or even 150 can’t be absolute—I can’t handle 150 murder cases per year, and I can’t do 150 trials per year.” I couldn’t get anywhere with these arguments, and those of us in felonies kept dying, back-to-back trials, sometimes 2 a week—I think I once did 5 (or was it 8?) back-to-back trials.

When I read comments like the following in Justice Denied and the ABA publications, I want to weep because maybe I wasn’t so crazy after all to think 180 felonies a year was too many; but I also want to punch someone, because while all these committees have been playing around with their made-up numbers, I was fucking living it.

“Because the NAC standards are 35 years old and were never empirically based, they should be viewed with considerable caution. In fact, the commentary that accompanied the NAC caseload numbers contained numerous caveats about their use, which have rarely been cited. For example, the commission acknowledged the 'dangers of proposing any national guidelines.'
Further, while the commentary conceded that its numbers could be used to measure a single attorney’s caseload, its report also contained a warning: 'It should be emphasized that the standard [referring to its numbers] sets a caseload for a public defender’s office and not necessarily for each individual attorney in that office.'

Moreover, since the NAC’s report was published, the practice of criminal and juvenile law has become far more complicated and time-consuming."

--Justice Denied

If the caseload numbers were arbitrary when proposed and now arbitrary and out-of-date, and should be viewed with caution, why am I even talking about caseload standards? Because they are better than nothing, and because the ABA opinion and guidelines emphasize that they are maximums.

“Consistent with prior ABA policy, these Guidelines do not endorse specific numerical caseload standards, except to reiterate a statement contained in the commentary to existing principles approved by the ABA: 'National caseload standards should in no event be exceeded.' This statement refers to numerical annual caseload limits published in a 1973 national report.

As noted by the ABA Standing Committee on Ethics and Professional Responsibility, while these standards “may be considered, they are not the sole factor in determining whether a workload is excessive. Such a determination depends not only the number of cases, but also on such factors as case complexity, the availability of support services, the lawyer’s experience and ability, and the lawyer’s nonrepresentational duties.'"
--ABA 8 Guidelines of Public Defense Related To Excessive Workloads, p. 11-12
And again in a footnote, the ABA 8 Guidelines comments about caseload standards:

“In its report on the Courts, the Commission [National Advisory Commission on Criminal Justice Standards and Goals] recommended the following maximum annual caseloads for a public defender office, i.e., on average, the lawyers in the office should not exceed, per year, more than 150 felonies; 400 misdemeanors; 200 juvenile court cases; 200 mental health cases; or 25 appeals.” JUSTICE DENIED, supra note 1, at 66.

As noted in JUSTICE DENIED, these caseload numbers are 35 years old, the numbers were never “empirically based,” and were intended “for a public defender’s office, not necessarily for each individual attorney in that office.” In fact, the Commission warned of the “dangers of proposing any national guidelines.” Id.

The American Council of Chief Defenders, a unit of the National Legal Aid and Defender Association comprised of the heads of defender programs in the United States, also has urged that the caseload numbers contained in the 1973 Commission report not be exceeded. See American Council of Chief Defenders Statement on Caseloads and Workloads, August 24, 2007.
--ABA 8 Guidelines
There are a lot of caseload stardards out there, but all of them, as far as I know, are close to those proposed in the 1973 report. We can use these numbers, though, no matter how flawed, as a starting point for absolute maximum caseloads, and then we can use all of the other studies, reports and standards to work the numbers down.

And then we can tell them--you know those excessive caseloads you want me to handle despite my ethical duty to my client:

You can't make me.

Tomorrow ahem, In Upcoming Posts, Part III: Resources for Interpreting Caseload Standards

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