In 1972, a group of men gathered at the Hotel del Coronado in San Diego County and came up with a set of influential standards for the National Advisory Commission on Criminal Justice Standards and Goals, often called “the NAC Standards.”
The plan, initially sketched out on a cocktail napkin, includes language that public defenders should handle no more than 150 felony cases, 400 misdemeanor cases, 200 juvenile cases and 25 appeals per year. The commission formally adopted these standards in a report in 1973.
St. Louis-based lawyer Stephen F. Hanlon, who has devoted much of his career to advocating for better workload standards for public defenders, says the initial writing was “informed by no data and no methodology.”
While the creators of the standards had experience in criminal defense, the standards were not created scientifically, according to Hanlon. Through the years, the standards have been criticized extensively, but they remained influential and the default standard for maximum workload amounts nationwide.
But now there is what Hanlon calls a “watershed moment.” With the RAND Corp., the National Center for State Courts and the ABA’s Standing Committee on Legal Aid and Indigent Defense, he created a new study that contains “reliable, data-based workload standards.” The 166-page National Public Defense Workload Study calls for a significant reduction in workloads for those who do criminal justice work in the public sector. Mary Fox, director of the Missouri State Public Defender System, explains that she has “attorneys a few years out of law school who are representing between 150 and 200 people at a time.”
She says this workload often does not allow lawyers to devote the amount of time they should on individual cases.
Jon Gould, the dean of the School of Social Ecology at the University of California at Irvine, was one of the reviewers of the new study. He also says the system is overloaded with too many cases.
“The problem is almost universal across the criminal justice system; and more concerning, most courts and legislators do not seem to mind,” he explains. “One of the ironies in all of this is that prosecutors and defense lawyers could find common ground in reducing their collective caseloads. Both sets of attorneys are handling too many cases, and the result threatens the administration of justice.”
The ABA Model Rules of Professional Conduct, in Rule 1.1 dealing with competence and Rule 1.3 dealing with diligence, require lawyers to maintain workloads that allow them to provide competent representation.
Furthermore, Rule 1.7(a)(2) provides that lawyers cannot take on additional clients if there is a “significant risk” that taking on the additional clients will materially limit the lawyers’ existing obligations to current clients.
ABA Formal Opinion 06-441 identified this years ago, stating that lawyers should not accept court appointments if doing so would create a work overload.
While the overloading of public defenders has been long known and criticized, the new study sheds new light and breaks ground with identifying clear, new standards for public defense.
It examined 17 different studies on public defender workloads and identifies 11 case types and eight activity types that lawyers encounter in the adult criminal defense world.
These 17 studies came from Colorado, Idaho, Indiana, Louisiana, Maryland, Massachusetts, Michigan, Missouri, New Mexico, New York, North Carolina, Oregon, Rhode Island, Texas, Utah and Virginia.
The 11 case types include felonies that can have a life without parole sentence, murders, sex crimes and DUIs. It also includes misdemeanor DUIs and probation or parole violations.
The eight activity types include client communication and care, discovery and investigation, experts, legal research, motion practice, court preparation, court time, and sentencing and mitigation.
What is next?
Hanlon acknowledges there is much work to be done.
“It took us 50 years to dig this hole,” he laments. “We are not going to get there overnight.” He says there should be more funding for public defender services and fewer people incarcerated if they “don’t present real threats to public safety” and may have landed in jail due to poverty or mental health issues.
Fox agrees. “Victimless status offenses and drug abuse and mental illness may be more successfully dealt with by a public health than criminal justice system. In so doing, the ‘demand side’ of the criminal justice process is eased, and with it caseloads for both prosecutors and defense lawyers,” she says.
New Mexico and Oregon both have considered implementing five-year plans. He believes they could be bellwethers for other jurisdictions to follow.
Also, both Hanlon and Gould contend Congress should pass the Equal Defense Act, or the Ensuring Quality Access to Legal Defense Act.
The measure was first introduced in 2019 by Rep. Ted Deutch (D-Fla.) and then-Sen. Kamala Harris from California.
One of the aspects of this bill is it establishes workload limits for public defenders, among other avenues of support for public defender offices.
Also, in states where judges are elected, people need to put pressure on jurists to enforce the standards set forth in Strickland v. Washington, according to Gould.
The 1984 U.S. Supreme Court decision determined trial counsel provides ineffective assistance when their representation falls “below an objective standard of reasonableness” and when “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.”
“We all know that criminal defendants are not attractive political constituents, but time and again, citizens respond well when asked whether they would want a friend or family member to have a fair chance at defending themselves were they charged with a crime,” Gould says.
Another consideration, Fox says, is determining what would be a reasonable amount of prosecutions to keep communities safe.
Fox says there is a phenomenon of over-prosecution, and there is not enough done to keep people from returning to the criminal justice system once they are released.
Ultimately, according to Hanlon, the legal profession must step up and take responsibility. “To quote Oliver Perry [a commander in the War of 1812]—‘We have found the enemy, and it is us.’ All of us are going to have to own this.”
David L. Hudson Jr. is an associate professor at Belmont University College of Law. He is the author, co-author, or co-editor of more than 40 books. For much of his career, he has focused on the First Amendment and professional responsibility.