Upcoming ‘watershed’ moment in public defense could spark nationwide solutions

Public defense across the West suffers deep-rooted, decades-old problems. States have two solutions to consider: dole out more cash or shrink the criminal justice system.

More cash would help states hire public defenders, increase pay and add support staff, all which lessens workloads and improves representation quality.

Not jailing people for non-violent crimes related to mental illness, homelessness, poverty and addictions would lessen the strain on public defenders. Treatment or community programs could handle those minor cases.

Those strategies combined would increase the supply of public defenders and ease current demands on them. People without attorneys in hundreds of felonies and more than 100,000 misdemeanors across the West could get public defenders who have time to represent them effectively.

Neither option seems particularly savory to many. A public defense system overhaul is expensive, particularly for smaller, resource-strapped counties. Some states controlled by conservative politicians “want more people locked up,” said University of Wyoming professor Daniel Fetsco, who has worked as both a prosecutor and public defender.

“However, I believe you can try to persuade people through awareness and education that some of these issues are not conservative, they’re not liberal,” Fetsco said. “It goes beyond politics. I think it’s a matter of humanity.”

Stephen Hanlon leads a national public defense reform effort and has half a century of legal experience. He says change is long overdue.

Judges, prosecutors and public defenders have for decades pushed millions through the criminal justice system without fully investigating their cases or ensuring an effective defense, Hanlon said.

“We became the principal facilitators of mass incarceration — the whole profession,” Hanlon said.

Black, brown and low-income people are disproportionately affected by public defense crises, said Jason Williamson, executive director of NYU’s Center on Race, Inequality and the Law, which helped sue Oregon to dismiss cases without attorneys. Black people made up nearly 20% of people waiting for attorneys in Multnomah County on one day in October, according to the lawsuit. That county’s population is less than 6% Black.

“The legal profession is starting to come to terms with this problem,” Hanlon said. “We’re gonna need the governors and state legislators … and Congress [to] step up and address this problem. This is a national embarrassment.”

Hanlon advocates for federal legislation that could better fund state public defense. He and other national legal organizations soon will have “a very powerful lever” to push for improvements.

His law firm, Lawyer Hanlon, partnered with the American Bar Association, the National Center for State Courts and the public policy research RAND Corporation to develop new national public defender workload standards expected in February, Hanlon said.

“What’s about to happen is a watershed moment in public defense,” Hanlon said.

The standards will be the first in the nation to prove with reliable data the extent to which public defenders are overworked, Hanlon said. They will be based on public defender workload studies in 17 states. Two of those studies revealed Oregon and New Mexico have about a third of the public defenders needed to provide adequate representation to everyone accused of crimes.

The National Advisory Commission on Criminal Justice Standards and Goals (NAC) adopted national standards 50 years ago that now overestimate how many cases attorneys can effectively handle.

Hanlon said those standards are based on “nothing.” A few lawyers scribbled them on a cocktail napkin in the 70s, he said.

“I’m old enough that I know who was there,” Hanlon said. “About seven or eight guys in a bar at the Hotel del Coronado in San Diego who sat around and came up with those numbers, but there was no methodology. There was no data.”

“It’s truly astonishing that we relied on that for 50 years, and there’s no excuse for having done that.”

The lawyers Hanlon said were at that bar were National Legal and Defender Association committee members. The association in a statement acknowledged those standards are outdated and ignore modern-day case complexity and time-intensiveness. The association hopes updated standards “will provide a wake-up call to states and localities on the need to properly invest in public defense.”

Jessica Kampfe, Oregon Office of Public Defense Services executive director, said national caseload maximums would be “hugely helpful” for Oregon’s dire public defender shortage. The new standards will offer a reference tool to show lawmakers that public defender caseloads go far beyond the acceptable limit, she said.

Idaho has proven that caseload standards work to motivate local lawmakers to support public defense. The state’s 2019 caseload cap has helped public defenders secure more county resources when they’re stretched thin.

Idaho contract public defender Rick Cuddihy said his Nez Perce County office was “way over” the annual maximum of 210 felonies per attorney within eight months.

“We went to the (county) commissioners and they gave us more money to hire more help,” Cuddihy said. “I think the system works very well.”

The new standards could work the same on a national scale. Hanlon assembled his old law firm Holland & Knight, consulting firm Moss Adams, research organization the JFA Institute and civil rights organizations to implement and enforce the standards. The team plans to file lawsuits that demand minor case dismissals to help decrease public defender caseloads and that states fix public defense systems within five years.

“We will be aggressively advocating for the changes that are so obviously needed, and if we can’t get them, we are prepared to litigate to get them,” he said.

Some federal lawmakers agree state public defense needs improvements.

Oregon Congresswoman Suzanne Bonamici in November reintroduced a bill that would provide $250 million for public defense grants. The bill would set public defender workload limits, establish pay parity with prosecutors and improve training and data collection.

“Right now, we have a dangerous shortage of public defenders,” Bonamici said in a statement. “I’m leading the EQUAL Defense Act to finally secure the resources that our public defenders and people in the criminal justice system need and deserve.”

The bill would require participating states to show measurable improvement over the next five years. States could model a five-year plan proposed for New Mexico, Hanlon said.

New Mexico’s public defender office recently tapped Moss Adams and the JFA Institute to help close the state’s attorney shortage. New Mexico would have 600 of 720 needed attorneys by 2028 if it follows the plan’s suggestions, improving the current gap.

The state currently has one third of the 900 attorneys it needs to handle public defense cases effectively. More funding would double the state’s existing attorneys, meaning the state would have 600 of the 900 attorneys needed. A decriminalization effort would reduce the need to 720, further closing the gap.

The report calls on New Mexico’s Legislature to more than double public defender office funding over five years to help hire 300 full-time public defenders and add support staff, such as paralegals and investigators. The office’s budget would increase from $64 million to $157 million, but would make up less than 1% of the state budget.

The plan also suggests decriminalizing some charges, including half of traffic violations and non-violent misdemeanors, and most drug possession, disorderly conduct, resisting arrest and probation violations. That would decrease cases by a third, reducing the public defenders needed from 900 to 720.

Idaho’s ACLU backs a similar decriminalization effort for its state, legal director Aadika Singh said. Offenses that could be removed or made a lesser charge to lighten attorney workloads include alcohol age violations, drug possession, gambling, prostitution, disturbing the peace, trespassing, littering, graffiti and driving with a suspended license, Singh said.

“These are people we are not scared of, we’re just upset with them,” Hanlon said. “There’s no reason for that to be in the criminal justice system. None.”

Many Arizona drug cases shouldn’t be prosecuted, said Dean Brault, Pima County Public Services director. His staff is nearly maxed out on cases, but prosecutor’s office leaders told him they won’t change how they charge people.

Washington County District Attorney Kevin Barton said he would support more funding for Oregon public defenders, but that “the claim by some that the solution is to stop prosecuting crimes” is “detached from reality and reckless.” People must be held accountable, he said.

Lassen County District Attorney Susan Melyssah Rios said she can’t overlook minor crimes in California. Property damage victims, for example, deserve restitution, she said.

“What gives someone the right to damage, deface, destroy the hard earned property of someone else?” Rios said. “What about the people whose property is damaged? Why should they have to pay to fix that?”

The New Mexico report emphasizes that only victimless crimes should be decriminalized.

Those cases can consume public defender resources.

Joel Trombley, a transient in Great Falls, Montana, was cited nearly two dozen times in two months for carrying alcohol in an open container or trespassing, sometimes both, always around the same location. Twice he was cited three times in one day.

Each of Trombley’s citations were filed as separate cases. An open container violation equals about three hours of work, potentially creating a nearly 70-hour workload for his public defender.

“So my caseload looks like I got 23 misdemeanors, and it’s one guy who’s just existing,” his court-appointed attorney Caitlin Boland Aarab said.

Great Falls city code has no defined open container violation penalty, so the violation faces a catch-all penalty of a possible 6 months in jail and a $500 fine.

State Sen. Ryan Lynch, D-Butte, has filed draft legislation that would make local governments shoulder public defense costs when the city violation penalty is undefined, like Trombley’s case.

Lynch says a funding shift could help cities see how often they charge people for minor offenses and evaluate whether to slow that practice or provide public defenders more resources to handle the work.

“If we’re going to put resources into prosecuting people, we should put similar resources into defending that,” Lynch said.

This year, all 50 states will have legislative sessions and the opportunity to pass new public defense laws. Idaho and Oregon, in particular, are poised for change.

Idaho Gov. Brad Little signed a bill into law last year to create a statewide public defense system by October 2024.

Lawmakers want to make right the ACLU’s 2015 lawsuit that shows poor defendants received inadequate representation, said Rep. Jon Weber, R-Rexburg, a lead sponsor of that bill.

Weber and other Idaho lawmakers will develop a statewide model for public defense in the upcoming session.

Each Idaho county runs its public defense how they want. They funded their own systems before the state began helping in 2019.

County-by-county public defense models can lead to resource disparities. In Washington, for example, poor, rural Whitman County spent less than $8 per capita on public defense in 2019, according to Washington State Office of Public Defense data. Wealthier and urban King County spent nearly four times as much to defend people.

Last summer Idaho took over all funding responsibility.

Weber and Singh, the Idaho ACLU legal director, agree a uniform statewide system will address disparities between counties and work better for defendants.

Singh said the Legislature’s annual $50 million for public defense keeps the current system running, but is “way too low” and “keeps things static.” She said more money is needed to hire attorneys, investigators and social workers who can help lighten workloads and improve representation quality. Singh worries the Republican-controlled Legislature won’t approve enough funding.

The new system’s cost is difficult to estimate because there is no chosen model yet, Weber said.

“If it does cost more (than $50 million), we will address it at that time and see what that number is,” Weber said. “But this isn’t an open checkbook, if you will, to see how much money we can spend on public defense.”

Oregon lawmakers last spring gathered attorneys and judges to develop public defense crisis solutions.

Co-chair Sen. Floyd Prozanski, D-Eugene, said the group will consider how to restructure the system and recommend ideas to the Legislature. The group’s recommendations so far are unclear.

The Legislature, in emergency sessions last year, approved more than $100 million to address the public defender shortage.

The Fair Shot of Oregon coalition includes nearly 30 racial justice groups, community organizations and labor unions, and supports two bills to reduce public defenders’ workloads, Oregon ACLU policy director Jessica Maravilla said. One bill gives public defense more money, including for state student loan forgiveness. The other suggests low-level, nonviolent crime incarceration alternatives.

Montana Gov. Greg Gianforte, a Republican, has proposed a 22% budget increase for the public defender office.

That could add 20 attorneys, but would still leave the agency shorthanded. Since 2019, the Montana public defenders office needed an additional 63 attorneys on average to handle the caseload assigned to the agency and still meet its workload management limits, according to the agency’s December budget request to the state Legislature.

The proposed budget includes a $1.5 million “rapid response” cushion to contract private attorneys or raise wages when the agency can’t fill vacant positions.

It’s unclear whether Montana’s majority Republican legislature will support public defense changes. Other agencies in severe disrepair, including the state prison and hospital, may need some of the $2 billion surplus more than the public defender’s office.

Legislators have grown more responsive to the public defender office’s appeals since the agency illustrated its issues in data presentations — it’s the difference between hearing the barn is on fire and seeing it for themselves.

Whether run by counties or the state, an office with full-time attorneys is the best way to provide effective public defense, experts in multiple states agree. Creating more offices is a reasonable solution for state or local governments.

More than 2,000 of the roughly 3,000 U.S. counties have no public defender office, said Jon Mosher, Sixth Amendment Center deputy director. The default for those counties is for judges to assign public defense cases to private attorneys.

Texas had five county public defender offices in 2001, said Geoff Burkhart, Texas Indigent Defense Commission executive director. Now it has offices that serve 70 counties.

More people who need public defenders get them when counties operate their own office, according to a June 2019 study of Texas’s system. The quality of representation also improves, Burkhart said.

“It is probably the single greatest tool we have for improving Texas public defense,” Burkhart said.

Locally controlled offices are not a cure-all, Burkhart said, but benefits, salary and student loan forgiveness can attract public defenders to rural areas. A federal program allows forgiveness for government employees. Private attorneys contracted for public defense work are not eligible.

County office attorneys also can provide “holistic defense” that aims to support defendants and prevent them from reentering the criminal justice system, said Graciela Martinez, California Public Defender Association president.

Support staff, including case managers, social workers and mental health professionals, can help defendants find treatment. Immigration experts can help defendants who make plea agreements avoid deportation. Case investigators can strengthen a defense.

“I don’t think there’s any substitute for having an institutionalized public defender system in any county,” Martinez said.

The Texas Indigent Defense Commission is requesting from the Legislature another $50 million over the next two years to continue building public defender offices, including one taking shape in College Station.

“We actually see change here as we build these public defender offices,” Burkhart said. “That’s hundreds, sometimes thousands of defendants with a lawyer by their side — and hopefully a really qualified lawyer by their side — who might not have had a lawyer otherwise. So it makes me feel really excited about this work. We’ve done a lot, but we have a lot more work to do.”