Public Defender Shortages Reaching Critical Levels: Report

In January, both the American Bar Association (ABA) and the consulting firm Moss Adams LLP released two reports, detailing a public defender shortage in Western American states. What’s more, legal experts say that these shortages have been the operational norm for years across our country as a whole, Law360 reports. 

According to the reports, which are the result of two years of research, New Mexico is short more than 600 full-time public defenders across adult and juvenile courts, whereas Oregon is short nearly 1,300 public defenders.

The latest study was one of 17 nationwide the Rand Corporation is using to calculate new national caseload standards for public defenders. 

Those standards are expected to be released in May, replacing metrics that have been in place for decades.

Reporting on the latest data, OPB details that Oregon’s public defense system’s stress has had long-lasting implications, as it has one-third of the attorneys the state news to “adequately represent criminal defendants.”

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, as quoted by Law360, noting that “to do otherwise, not only harms individual defendants but our entire justice system.”

New Mexico and Oregon

As a result of the shortages of public defenders in New Mexico, attorneys have had to represent 156 cases per year and work about 13 hours per case, regardless of whether the case is a misdemeanor or felony, the report details. 

Similarly, 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 detailed, as noted by Law360.

Taking another look at Oregon’s crisis, experts say that for the last several months, the shortage of legal representation has been so significant that some indigent defendants have been in custody without an attorney.

“These are all poor people that do not have the resources to hire a lawyer,” Office of Public Defense Services (OPDS) executive director Steve Singer told OPB. “We didn’t get to this problem overnight. We got to this problem over the last two or three decades. The hard question is what do you do about the problem? How do you solve the problem?”

Because of the troubles, the ABA study found that in Oregon, more than 90 percent of all criminal cases end in pleas, rather than trials, highlighting a serious problem.

“Right now, we are hemorrhaging capacity because we have crushing caseloads and extremely low pay, which is causing us to lose capacity, lose attorneys, which means we’re increasing the case loads on remaining attorneys,” Singer said during Thursday’s OPDS meeting.

OPDS plans to ask state lawmakers for more funding when they meet next month in Salem.

Other States Are Suffering Too

Geoff Burkhart, president of the National Association for Public Defense’s board of directors, told Law360 that while this latest report highlights shortcomings in New Mexico and Oregon, public defender offices across the country have “never been well funded or staffed” — but that the problem ahs becoming worse over the last few decades. 

“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.

The ABA has released a total of seven reports like the most recent one since 2014, covering other states like Louisiana, Colorado, Rhode Island, Indiana, and Missouri — all finding nearly the same thing.

The older reports found that Louisiana was short more than 1,400 full-time public defenders or nearly 80 percent 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 percent of the attorneys needed to competently handle its public defense cases, according to Law360. 

To that end, the reports did not reach conclusions about how many more public defenders were needed in Colorado, Indiana and Missouri, Law360 details.

Similarly, The Guardian uncovered in 2016 that years of drastic budget cuts have created “bottomless caseloads” for public defenders across the country, particularly in Kentucky and Missouri.

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.

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 concluded.

Additional Reading: As Life Without Parole Cases Rise, Finding Public Defenders Grows Harder