One Man’s Fight for Reshaping the Nation’s Public Defense System

If I’m a public defender in America right now, what does my job each day look like?

I’ll start with the judge and then I’ll go to the public defender. You’ve got a major metropolitan judge who walks in on Monday morning and all the weekend cases are there. He’s got 200 people in his court. And his or her major concern is — and this is the word they use, I didn’t come up with this — ​“I’ve got to process these cases.” That’s the judge’s primary concern. They need the meet-‘em-and-plead-‘em system to continue. 

As a public defender, if you have a misdemeanor client, for instance, you may need to spend 45 minutes on average talking to your client. For some you may need three or four hours. For some you might need only 20 minutes. Well that’s terrifying for a judge. They’re thinking, ​“How am I going to get the 200 people in this courtroom processed?”

It’s kind of like that scene from ​“I Love Lucy” when she’s wrapping chocolates and they keep coming faster and faster and she can’t keep up.

These attorneys burn out. How would you like to come home and look in the mirror and know that people are in jail who don’t belong there because you didn’t have the time to investigate that case? So they burn out. It’s horrible. The attrition rates are astonishing.

You know, I’ve been representing public defenders for more than 20 years, and I’ve never had a public defender complain to me about their pay. I’ve never heard public defender say to me, ​“I’m getting screwed. The pay is terrible.” The only thing they complain about is the massive caseloads. 

A lot of them are idealistic kids who came out of law school and they want to take on the system. And they get in and they see, ​“Holy cow! I can’t be a lawyer. I’m doing unethical things every day. I’m pleading people and I don’t have the slightest idea what went on in this case.” So the psychological problems that that presents are just overwhelming.

You’ve mentioned before that the United States doesn’t have a criminal justice system, but instead a criminal processing system. Why is that and what factors led to where we are today?

Well, certainly the War on Drugs played a huge role in it. Justice [John Paul] Stevens has described our role — the whole [legal] profession — as loyal foot soldiers in the executive’s War on Crime. We did some things that we really have to be ashamed of — all of us. And every one of us is responsible for the dramatic growth of the prison industrial complex. 

People started realizing that some of the people we were sending to prison had some serious mental health issues, drug and alcohol addiction. And suddenly they’re asking, ​“What did we get ourselves into?” It really started to get out of hand in the 1980s and ​‘90s. We thought we could imprison our way out of those issues. 

You’ve been in a unique position for the past decade or so of your career in that you’ve studying public defender offices in various states, collecting data and research. What have you learned?

We now know as a result of these studies that we’ve done in eight states that with rare exception we have a systemically unconstitutional and unethical criminal legal system. And that has had, for the last 50 years, devastating consequences, principally on Black and brown populations but also on millions of other Americans. The unfortunate truth is — and I say this with great reluctance, because I’ve been practicing law for 55 years and I’m proud of my profession, it’s a noble profession — but we have failed miserably. All of us. Not just public defenders, but judges, lawyers, bar associations, bar disciplinary boards, state supreme courts, trial courts. We have become the principal facilitators of mass incarceration. You can’t do mass incarceration unless our entire profession rolls over and plays dead.

We’re working to change that by providing updated national caseload standards to replace the 1973 NAC [National Advisory Commission] Standards.

Remind me again, what are those standards?

For a lawyer working adult criminal cases, the 1973 NAC Standards state they shouldn’t work more than 150 undifferentiated felonies — that could be stealing over $500 to murder — and 400 misdemeanors per year. It’s preposterous — simply preposterous.

There are public defenders carrying 200, 250 400 felonies and 600, 800, 1,000 misdemeanors. This is atrocious. And it’s all under the watchful eyes of trial judges and state supreme courts. We view this as a damnation of our profession, because we’ve allowed this to happen. These cases aren’t being investigated; these people are simply being processed. We don’t have a criminal justice system; we have a criminal processing system. That’s going to come to an end, because we’re going to publish these new national standards. These standards will provide the number of hours, on average, that are required in order to provide reasonably effective assistance of counsel pursuant to prevailing professional law.

I’m really proud of the team that I have assembled to conduct this major undertaking. First, the Rand Corporation, the developer of the Delphi Method that we use in these studies. Next, the American Bar Association, the developer of the standards that we will employ in this study. And finally, the National Center for State Courts, which has conducted its own studies in this area.

Right now we’re underway on what we call a ​“meta study” that will take all of the workload studies that have been done on public defense in the past 20 years — mine, the RAND Corporation’s, the National Center for State Courts’, and others — and we’re going to analyze each of them. 

Then we’re going to bring in experienced public defenders and experienced private attorneys from across the country, and use the Delphi Method developed by the Rand Corporation, which has been peer reviewed and validated repeatedly in research literature, particularly for this kind of use, which is a needs analysis. So the idea is to get the experts in a room, especially experts who might disagree, and see if you can get them to a consensus. That’s the reason why we’ve always used public practitioners and private practitioners, because they might disagree on what is reasonably effective assistance of counsel pursuant to prevailing professional norms.

And we are going to apply precisely those professional norms that the United States Supreme Court has specifically approved for determining what reasonably effective assistance of counsel is — The ABA Criminal Justice Section’s Standards for the Defense Function. Importantly, those standards have been developed by prosecutors, judges, academics, and defense lawyers. So we had the prosecutors and the judges ​“in the room” when the most important question to be asked in this study was formulated.

There will be a number for X number of hours for each case type. We haven’t worked out exactly what the case types‘ are, but they’ll run something like: murder, high felony, mid felony, low felony, misdemeanor, low misdemeanor, probation violation. It’s something that we’re working out.

If a public defender has a caseload that significantly exceeds the caseload maximums established by the study, there is a significant risk that you cannot provide competent counsel to each of your clients and that triggers the application of Rule 1.7, which basically says you may not under any circumstances represent more people than you can represent competently. We have ignored that rule in public defense for at least 50 years. And by we, I mean everybody: public defenders, judges, Supreme Court justices, bar disciplinary committees — all of us. If you’re in violation of that rule, then you are required to withdraw under Rule 1.16, and further, you are required to take reasonable steps to protect the interest of the clients you can no longer represent.

That’s very basic, very fundamental. Nobody would question that. It’s a rule of our profession that is in force in 50 states. And we have ignored that rule for 50 years with devastating consequences for mass incarceration.

The supreme courts in three states — Missouri, Florida and Massachusetts — have held that in those cases where no adequately resourced lawyer can be found to represent those defendants, the cases should be dismissed without prejudice until such time as the state can provide an adequately resourced counsel who can be competent for the defendant, and if the defendant is in custody, he or she should be released.

So unlike the system currently in place, these new standards would give public defenders the power to tell a judge they can’t accept anymore cases because they won’t be able to adequately represent their clients.

Right. Let’s set the Constitution aside and let’s just work on the simple black letter of the Rules of Professional Conduct: Lawyers can’t represent more people than they are competent to represent. So now public defenders are going to need to go to the judge and say, ​“By the way, Judge, I’ve got 400 cases here and I can only represent 135 of them, according to these new national caseload standards. But I can’t just walk away from these clients. So here’s what we need to do. I can’t triage anymore; that’s what I’ve been doing all my life as a public defender. That’s against the law for me. I can’t do that anymore. But you can, Judge. That’s what we got out of the Waters case. So let’s pick out the really high-risk cases here. Let’s take those murders and rapes and put me on those. The other cases — the misdemeanors and less serious cases — I am moving that those cases be dismissed without prejudice until such a time the state is able to provide a competent lawyer, either through public or private counsel. In the meantime, my clients who are in custody are entitled to be released because the state can’t provide them with a competent lawyer.” Now that’s a difficult state of affairs.

It sounds like a whole culture shift.

It would encourage public defenders and judges to do the right thing. And they’re going to be called upon to do the right thing.

So you’re conducting this meta study and updating the outdated caseload standards, but there’s also a bill before Congress, the EQUAL Defense Act, that addresses public defense. How will your study and the new standards impact that bill?

It was introduced by then-Sen. Kamala Harris, who, as you know, has a very different job right now and she works for somebody who used to be a public defender. So we have been working with Congress, particularly Rep. Ted Deutch from Florida. 

We helped Sen. Harris’ people write the EQUAL Defense Act, and we’re really pleased with what she came up with. It adopts the standard of reasonably effective assistance of counsel pursuant to prevailing and professional norms. That’s the Strickland performance standard. And what we have done is quantify that standard in our studies, and that will be the standard for the meta study. We’ll come up with those new numbers and those numbers will be put into the EQUAL Defense Act, at least that’s what we’re going to attempt to do. 

In the bill, Sen. Harris proposed $1.25 billion in funding over five years — $250 million a year. But Congress is not going to simply throw money at a broken system that is this bloated. That would be foolish. In order to qualify for these funds, for one, these draconian sentences have to be reformed, because the longer the sentence, the more time the public defenders have to put into the cases and the fewer the cases they can take. So we’re going to have to shrink the system from that point. 

We’re also going to have to shrink the misdemeanor dockets dramatically, so that only those misdemeanor cases that involve public safety risk are in the system. That’s what we call ending the criminalization of poverty, homelessness, addiction and mental illness. Those folks need social workers, not lawyers; and social workers are far less expensive and far more effective with that population than lawyers, courts, cops, cages and the collateral consequences of convictions. 

That’s what we call demand side relief, which has to happen in tandem with supply side relief — funding, all over a period of five years under the Equal Defense Act..

You know, it took us 50 years to dig this hole and we’re not going to get out of it overnight. 

So what Sen. Harris wisely did was spread out the funding over five years. If you start taking care of the demand side relief at 20 percent the first year, 20 percent the second year, and so on. If you do that, we’ll get you supply side relief — funding — over that period of time. We’ll reward you for your good behavior — shrinking this bloated criminal justice system.

The other thing you have to do to get money is you’ve got to have reliable data. Now, most public defenders don’t have that. The current business plan for both public defense and the criminal justice system is, ​“We take everybody! There are no limits. Whether we’re competent or not, we’ll do it.” That’s not a good business plan. We need to develop a good business plan as public defenders, and that will help the prosecutors and that will help the courts develop a good business plan. We see ourselves as the primary change agents for criminal justice reform. By reforming ourselves, we reform the system. 

We’re going to have reliable, 21^st century data and analytics to determine how many people we can competently represent. I think it’s a very exciting plan for the future, not just for public defense, but to reform what is now our criminal processing system and turn it into a criminal justice system.