Gerry Spence, a trial lawyer best known for his victory in the Karen Silkwood case against the Kerr-McGee plutonium production plant, gave a fiery speech last November at his Trial Lawyers College. Spence has an impressive record—he never lost a case as a criminal defense attorney in his entire career. But, he said, that’s because he and other private attorneys like him can spend months or years on each case; public defenders are in a different category altogether.
“I have great respect for public defenders, but what if the public defender has a hundred cases—what if the public defender is only a public defender in name?” Spence asked the audience. “Let me tell you something. If I had a hundred cases, I’d have to plead him guilty! I’d have to make the best deal that I could make! If I had a hundred cases, I couldn’t see my client until I walked into the courtroom.” Then Spence pounded his fist on the podium, and condemned what he saw as “a system that is defrauding America out of its Constitutional rights.”
This lecture caught the attention of several members of that same system. In particular, two defense attorneys responded with blog posts on the National Association for Public Defense (NAPD) website.
"Unless more public defenders find the courage to admit that excessive caseloads make it impossible to render effective representation in every case, we will never achieve NAPD’s goal of systemic reform of indigent defense."
First Andre Vitale, special assistant public defender in Monroe County, New York, took issue with Spence’s stance. “Just because we have 150 to 200 cases pending at a given time (a point on which Mr. Spence is correct), does not mean that we are not out there doing the work,” Vitale wrote in the beginning of January. Sure, he and his fellow public defenders could use more resources, but “we cannot afford the luxury of stopping to complain.”
That piece prompted another in response, by John P. Gross, director of the Criminal Defense Clinic at the University of Alabama School of Law. Gross argued that having pride in one’s work shouldn’t mean overlooking systemic problems; rather, overlooking them and refusing to complain would only ensure that the status quo would continue.
“I’m certain that I failed some of my clients,” Gross wrote. “That isn’t easy to admit. It took me years to come to that realization and it was made after I had stopped being a public defender. But unless more public defenders find the courage to admit that excessive caseloads make it impossible to render effective representation in every case, we will never achieve NAPD’s goal of systemic reform of indigent defense.”
Many public defenders working today may, unfortunately, agree with the difficult conclusion that Gross came to. The attorney general agrees with it. Abundant academic research backs it up, as well.
Gross cited a report by the non-profit Sixth Amendment Center that evaluated indigent defense in Delaware, the second state to create and fund a public defender system after the Supreme Court’s Gideon v. Wainwright ruling in 1963. The report found today’s system in Delaware so wanting, in so many ways, that it declared it not in “compliance with the minimum demands of the U.S. Constitution.”
As the report explained, the failure is not for lack of trying on the defenders’ part. “In Delaware, able attorneys are working in a structure that prevents them from meeting constitutional adequacy despite their commitment, dedication and hard work,” the authors wrote. “[D]efendants either face subtle (or sometimes direct) pressure to forego the right to the assistance of counsel ... [or] their lawyers are provided too late and with too little time to be the zealous advocates that each defendant has as his privilege.”
On the county level, the situation is just as challenging. Bureau of Justice statistics show that about three out of four county- and locally funded public defense offices regularly exceed the maximum attorney caseload standards established by organizations like the American Bar Association and the National Legal Aid & Defender Association. The recommended maximum caseload for one attorney in a year is 150 felony cases or 400 misdemeanor cases. (In reality, caseloads often climb into the thousands.)
Building consensus about the reality of excessive caseloads is easy; finding specific, viable solutions is not. The Brennan Center for Justice, on the occasion of “Gideon at 50” in 2013, argued for reclassifying some petty offenses as non-jailable civil infractions, increasing funding for both public defense staffing and training. Brittany Stringfellow Otey, the director of the Pepperdine Legal Aid Clinic, proposes that law school programs spend much more time preparing future public defenders for the “predictable, preventable occupational hazards [of] stress, burnout and compassion fatigue.”
Jonathan Rapping of Atlanta’s John Marshall Law School, writing about the cultural aspects of the problem, wants public defenders to psychologically “reclaim their rightful position” as “heroes” of the criminal justice system. By contrast, Gross’ piece mentions an argument by Indiana University School of Law Dean Norman Lefstein that common psychological traits in individual defenders and an overall tough-it-out culture in the defense system combine to create an environment that ultimately normalizes, and facilitates, excessive caseloads.
Andre Vitale, Gross’ correspondent in the NAPD series, certainly seems to be taking Rapping’s advice to heart. In another response, Vitale conceded some of Gross’ points, but emphasized that he wouldn’t waste any time waiting for policy or budget reforms; he simply has too much work to do.
“While you are engaged in that effort for structural reform, I will continue to fight tirelessly for my clients, supporting those with me on the front lines of this battle,” Vitale wrote. “I, and the rest of us who remain committed to the lives and liberty of our clients, will never stop.... Because if we do, the lives and the liberty of too many will be lost in the balance.”
True Crime is Lauren Kirchner's weekly column about crime and criminal justice issues.