Public Defender Shortages In West Are Nationwide Norm

By Sarah Martinson | January 23, 2022, 8:02 PM EST ·

The American Bar Association and consulting firm Moss Adams LLP released two reports in January on public defender shortages in New Mexico and Oregon, and legal experts say that these shortages have been the norm for years in states across the U.S.

According to the reports, New Mexico is short more than 600 full-time public defenders for adult criminal and juvenile cases, and Oregon is short nearly 1,300 full-time public defenders for criminal defendants.

These findings mean that New Mexico and Oregon have approximately one-third of the full-time attorneys needed to offer "reasonably effective assistance" to criminal defendants consistent with professional state standards, the ABA said.

As a result of the shortages, public defenders in New Mexico have to represent 156 cases per year and work about 13 hours per case, regardless of whether the case is a misdemeanor or felony. Public defense attorneys in Oregon have to represent 203 cases per year, putting in about 10 hours per case, according to the reports.

However, for public defenders in these states to provide effective counsel, attorneys in New Mexico would need to clock 25.4 hours per workday, and lawyers in Oregon would need to put in 26.6 per workday, the reports found.

Reginald Turner, ABA president and member of law firm Clark Hill PLC, said in a Friday statement on the release of the Oregon report that the study again shows "public defenders are daily put in grave jeopardy of violating their professional responsibility to provide competent counsel" because of excessive caseloads caused by a shortage in public defenders.

"Courts, in turn, should provide relief when excessive caseloads threaten to lead to representation lacking in quality or to the breach of professional obligations," Turner said, noting that "to do otherwise, not only harms individual defendants but our entire justice system."

The ABA Standing Committee on Legal Aid and Indigent Defense has been studying public defenders' caseloads since 2014 and has released a total of seven reports, including those on New Mexico and Oregon. The other states that the committee studied are Louisiana, Colorado, Rhode Island, Indiana and Missouri.

The older reports found that Louisiana was short more than 1,400 full-time public defenders or nearly 80% of the attorneys needed to competently handle its public defense cases, and Rhode Island was short nearly 90 full-time public defense attorneys or nearly 60% of the attorneys needed to competently handle its public defense cases. The reports did not reach conclusions about how many more public defenders were needed in Colorado, Indiana and Missouri.

While these states have public defender offices, many states do not and must rely on private attorneys to handle public defense work. Those attorneys are also overworked, according to Geoff Burkhart, president of the National Association for Public Defense's board of directors.

Burkhart told Law360 that public defense in the U.S. across the country has never been well funded or staffed, but the problem has become worse over the last few decades and attorneys have become a speed bump for criminal defendants on the way to a guilty plea.

"The consequence for America is we lose faith in the justice system, and then, we can't trust the outcomes of the system," he said.

As a result of the U.S. Supreme Court's 1963 ruling in Gideon v. Wainwright, individuals charged with a felony in state court have a right to counsel, even if they cannot afford an attorney, which dramatically increased the workload for public defense. The right to counsel was expanded to misdemeanors in the Supreme Court's 1972 decision in Argersinger v. Hamlin.

Since the Gideon ruling, public defenders' caseloads have continued to increase as a result of tough-on-crime policies from the 1980s and 1990s, without adequate additional funding and staffing, Burkhart said.

In addition, the salary of public defenders has not kept pace with law school student loan debt. The average student loan debt for a law school graduate is $145,500, while the median salary for entry-level public defenders is $58,300, according to the ABA's 2021 Profile of the Legal Profession report.

As a first-year associate at a BigLaw firm, a law school graduate could make three times as much as a public defender, with a starting salary of $190,000, according to the report.

Stephen Hanlon, a law professor at Saint Louis University School of Law and former pro bono partner at Holland & Knight LLP for more than 20 years, said that public defenders need to stop taking on more cases than they can competently handle and judges need to step in to make sure public defenders don't take on too many cases, because public defenders are violating their ethical obligations when they do.

According to the ABA's professional standards, lawyers can't represent more clients than they can competently handle and attorneys can't recommend a plea deal for their clients without a full investigation of criminal charges.

However, for the last 50 years, public defenders have been violating these rules, and the ABA's studies on public defenders' workloads show that these attorneys are taking on more cases than they can competently handle and not spending enough time on investigating charges in violation of the rules, Hanlon said.

The consequence is "many people are in jail and prisons that shouldn't be there, making a mockery of the U.S.' highest values," Hanlon said.

--Editing by Jay Jackson Jr.

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