Weekend Reads | Can the Underfunded, Overloaded Public Defender System Avoid Collapse?

by Kevin Schofield

This weekend's read dives into the problems and complexities of the public defender system, which provides free legal representation to criminal defendants who can't afford to pay for an attorney. In the United States, when the government charges you with a crime, you are entitled to an attorney to represent you, and if you can't afford one, the government will appoint one — called a "public defender" — and pay for them.

Attorneys are bound by ethical rules that require them to provide effective legal representation to their clients. That includes ensuring they put in sufficient time on each of their clients' cases, which suggests there is a limit to the number of cases an attorney can take on simultaneously. But determining a precise limit to a public defender's caseload is tricky.

In 1973, the National Advisory Commission on Criminal Justice Standards and Goals (NAC) issued a set of estimates of the number of cases an attorney could handle annually. Among those estimates:

• Felonies: 150 cases per year
• Misdemeanors: 400 cases per year
• Juvenile cases: 200 cases per year

Those 50-year-old estimates are still largely the basis for public defender workloads today, though some specific jurisdictions have implemented their own tweaked versions. The Washington State Supreme Court, in its Standards for Indigent Defense, defines its own limits on public defender caseloads that are substantially similar:

• Felonies: 150 cases per year
• Misdemeanors: 300 cases per year
• Juvenile cases: 250 cases per year

There are many problems with this, but the main one can be described in three words: "Do the math." Divide the number of hours an attorney can work in a year by the number of cases, and you have the average number of hours an attorney gets to spend on each case. And the numbers are painfully small.

The most generous assumption we can make for the number of hours an attorney can work in a year is 2,080: 40 hours per week for 52 weeks. In reality, the number is lower because of vacations, holidays, sick leave, continuing education requirements, and administrative overhead. But even if we use the 2,080-hour figure, the numbers look awful. By our state's standards, attorneys should spend only 13.9 hours on a felony case, 6.9 hours on a misdemeanor case, and 8.3 hours on a juvenile offender's case.

One of the persistent criticisms of the 1973 NAC standards was that there was no clear methodology for arriving at its caseload estimates. So this weekend's read, the 2023 "National Public Defense Workload Study" by the RAND Corporation, aimed to understand what realistic workload estimates would look like. An important part of doing that work is gathering data on how many hours attorneys were actually spending on their clients' cases. But another critical part of its analysis was recognizing that not all felonies are created equal: A violent crime that carries a sentence of the death penalty or life imprisonment without parole is very different from a lower-level felony case and has much higher requirements for attorney time.

The study found that representing a client facing a felony murder charge took an average of 248 hours — a far cry from the 13.9 hours built into Washington's caseload estimates. Even the lowest-level felony charges took on average 35 hours, almost triple the state estimate. The misdemeanor and juvenile state guidelines are also completely out of alignment with the study's average time-on-case data.

The study argues that courts should adopt a "case weighting" model to determine caseload limits for public defenders, one that differentiates between types of felonies and misdemeanors to arrive at more accurate (and manageable) caseloads. However, the state Supreme Court's standards explicitly prohibit using a "case weighting" model, unless a local jurisdiction formally adopts one.

The other part of the problem for the public defender system is that it is underfunded; as a result, it pays attorneys low wages and it doesn't adequately fund the resources needed to support attorneys doing public defender work. Because of this, there aren't enough public defenders to meet the demand — and with ridiculously high caseload limits, those public defenders who do exist are swamped with work.

This problem has begun to receive more local attention. Last fall, Larry Jefferson, the director of the Washington State Office of Public Defense, took that unprecedented step of petitioning the state Supreme Court to halt for 90 days the assignment of new felony cases and to bar local courts from assigning new cases to any public defender with an existing caseload of more than 90 cases in a year. The Supreme Court declined to do so, leaving the problem largely untouched.

The Washington State Bar Association issued a statement in 2022 reminding public defender attorneys of their ethical obligation to provide effective counsel to their clients, and advising them to decline to accept new cases assigned to them if their existing caseload is too high.

The best hope for a change is in the hands of Washington State Sen. Nikki Torres of Pasco, who has introduced three bills in the current legislative session. The first increases state funding to cities and counties to cover the costs of public defense. The second reinstates the previous Indigent Defense Task Force from the 1980s. The third expands the state Office of Public Defense's criminal defense training academy, in the hopes of expanding the pool of public defense attorneys. Of the three, so far only the third has seen any real momentum in the state Senate. All three require state funding, with the first one — providing more funding for local jurisdictions — requiring the most money. The RAND report recommends that governments work backward to determine funding levels: Look at the typical number and type of criminal cases requiring public defenders, estimate the attorney time required for each, and use the total number of attorney hours to set the budget for public defense.

It certainly feels like this is leading up to another "McCleary moment," similar to the case where the state Supreme Court ruled that the Washington State Legislature had not met its constitutional responsibility to adequately fund public education. It seems entirely possible the courts could be called on to dismiss criminal cases in the future if public defenders follow the Washington State Bar Association's guidance and refuse to take on new cases, creating a situation where there is no attorney available to represent a criminal defendant. Or, we might see a guilty verdict thrown out due to ineffective counsel simply because the public defender's caseload was too high, making it impossible to spend enough time on the case.

In arguing to the state Supreme Court last fall, Director Jefferson argued the public defender system is "on the verge of collapse." Doing the math provides a lot of support for that view. And if it does collapse, our criminal justice system might not be far behind.

National Public Defense Workload Study

Featured image via Gorodenkoff/Shutterstock.com.