If you’ve ever watched a crime drama, you already know the following lines by heart: “You have the right to consult an attorney before speaking to the police and to have an attorney present during questioning now or in the future. If you cannot afford an attorney, one will be appointed for you before any questioning, if you wish.” These well-known words, which come directly from the Miranda Warning, touch on a critical question for defendants across the United States: are court-appointed lawyers as effective as private attorneys? Or is the public defender system broken beyond repair?
Public Defenders vs. Private Attorneys
In many ways, public defenders and private criminal defense attorneys are similar. Both graduate from law school, both are required to pass the bar exam, and both represent defendants charged with misdemeanors and felonies ranging from homicides to sexual assaults to drug crimes. Both interact with judges and prosecutors, both file briefs and motions, and both prepare cases for trial.
Yet for all the similarities shared in terms of qualifications, ethical obligations, and skill sets, there remain critical differences between public defenders and private defense lawyers. Among them, the most glaring is arguably caseload – a discrepancy which stems from the very structure of our legal system.
Private attorneys have greater power and flexibility in terms of accepting or declining cases. By making strategic decisions about which cases they are willing to handle, private defense lawyers effectively regulate their own caseloads. If a private attorney’s plate is already full with other cases, he or she can turn prospective clients away or refer them to another firm.
Public defenders can decline cases as well – for instance, if a conflict of interest arises, or if the public defender is being threatened or abused by his or her client – but that doesn’t change the fact that indigent defendants are still entitled to legal representation. If one public defender declines a case, the burden of representation doesn’t vanish; it simply shifts.
So just how big is the problem? Or, to put it another way, just how big are public defenders’ caseloads?
Bureau of Justice Statistics: Are Public Defender Caseloads Excessive?
According to a 2010 Bureau of Justice Statistics (BJS) Special Report titled “County-Based and Local Public Defender Offices, 2007,” county-based public defender offices were flooded with over four million cases in 2007. Does four million sound like a reasonable number?
Before you form an opinion, consider a few more statistics uncovered by the same report: nearly three quarters of count-based public defender offices “exceeded the maximum recommended limit of cases received per attorney.” The report further adds that “because the CPDO [Census of Public Defenders Offices] only collected data on cases received in 2007, these caseload numbers may understate the actual caseload of attorneys who are responsible not only for the new cases received in a given year but also cases pending from previous years.”
One can also look at the issue from a mathematical perspective. According to the same report, “County-based public defender offices employed 71% of the nation’s 15,026 public defenders in 2007 [for a total of 10,705 attorneys]… These attorneys handled more than 4 million cases in 2007, which was 73% of the total number of public defender cases nationwide.”
If 10,705 county-based public defenders worked on approximately 4 million cases, that means each attorney averaged about 374 cases – in other words, slightly more than one new case assignment for every single day of the year, including weekends and holidays. Of course, cases are not distributed evenly per attorney; but the numbers still serve to illuminate the overwhelming scale of the issue.
An additional 2010 BJS report (“State Public Defender Programs, 2007”) examined the problem at the state level. According to the state-based report, “Fifteen [out of 22] state programs exceeded the maximum recommended number of felony and misdemeanor cases per attorney,” adding further that “among the 17 states that had a state public defender program in 1999, criminal caseloads increased by 20% overall from 1999 to 2007.”
“No More: We Can’t Ethically Handle This Many Cases”
In some states, the problem has escalated to such unmanageable levels that public defenders’ officers have actually filed lawsuits seeking to limit the number of cases they will accept.
In 2013, for instance, a lengthy legal battle dating back to 2008 finally culminated in the Florida Supreme Court’s ruling permitting the Miami-Dade County public defender’s office to withdraw numerous felony cases in order to curb an already excessive caseload. In 2008, when the Miami-Dade case began, National Legal Aid and Defender Association director of research David J. Carroll stated, “Right now a lot of public defenders are starting to stand up and say, ‘No more: We can’t ethically handle this many cases.‘”
Excessive caseloads are the core problem from which all flaws in the public defender system originate. As caseloads creep higher and higher, overburdened public defenders are inevitably stretched thinner and thinner, forced time and time again to distribute and redistribute their limited time and resources across dozens if not hundreds of clients. No matter how skilled, driven, or experienced a given public defender may be, no amount of legal talent can overcome the fact that there are only 24 hours in a day.
It takes time to delve into the nuances and intricacies of a case. It takes time to conduct research, formulate arguments, and prepare legal documents. Perhaps most critically of all, it takes time to work with experts and investigators – whose findings and testimony can make or break a case. According to the county-based BJS Special Report, “In 2007, 40% of all county-based public defender offices had no investigators on staff.”
Ultimately, the efficacy of public defenders as compared with private attorneys remains a subject of debate and disagreement, and studies devoted to the topic have returned contradictory findings. Nonetheless, few can argue that the chronic burden of excessive caseloads impairs the efficiency of overworked public defenders across the United States – and when public defenders are deprived of the crucial resources they need, so are their clients.