The current national standards for public defender caseloads, set in 1973, are “outdated, not empirically based, and inadequate” and should be updated for public defenders to adequately represent indigent clients, according to findings from a recent study.
The National Public Defense Workload Study set out to create new national standards for public defender workloads, which the study says are essential for adequate funding and staffing so that public defenders can competently represent their clients per the Rules of Professional Conduct and as guaranteed to indigent defendants by the Sixth Amendment to the U.S. Constitution.
The study was conducted by the RAND Corporation; the National Center for State Courts; the American Bar Association Standing Committee on Legal Aid and Indigent Defense; and Stephen F. Hanlon, Principal, Law Office of Lawyer Hanlon.
Current standards may overload lawyers
There have been criticisms of the National Advisory Commission on Criminal Justice Standards and Goals (NAC standards), which were created 50 years ago to estimate the maximum number of cases a defense attorney could handle per year.
The NAC standards estimate that public defenders can handle a maximum of 150 felony cases per year; 400 misdemeanor cases; 200 mental health cases; 200 juvenile cases; or 25 appeals per year.
These standards have been critiqued as being overly broad and failing to differentiate among types of felonies (e.g., giving equal weight to a homicide and a burglary). Moreover, there has been concern that they were created without a “defensible methodology” and that they are “simply too high” in terms of caseload, according to the study.
“Overloaded public defense attorneys simply cannot give appropriate time and attention to each client… Instead, attorneys are forced to triage cases, choosing which cases to focus attention on while allowing others to be resolved without appropriate diligence,” the study said. “A justice system burdened by triage risks unreliability, denying all people who rely on it—victims, witnesses, defendants, and their families and communities—efficient, equal, and accurate justice.”
The ‘gold standard’ for determining public defender workloads
In the National Public Defense Workload Study, researchers used data from 17 state-level public defense workload studies conducted between 2005 and 2022 and expert opinions from 33 attorneys to develop new national standards that more specifically define:
- The types of cases public defenders handle;
- How long they spend on each type of case; and
- How many of each case they can reasonably take on per year.
“The new standards reflect expert attorneys’ experiences with current criminal defense practice, including digital discovery and forensic evidence, as well as the expanded scope of a criminal defense lawyer’s obligations, including advising clients on collateral consequences,” RAND said.
The study defined 11 case types (compared to NAC’s five) and eight activity types (including client communication, negotiations, court preparations, etc.) that encompass the work of public defenders. It also drew from attorney feedback to determine how many hours public defenders spend on each type of case.
The researchers then created workload recommendations based on the assumption that each attorney has 2,080 hours per year available for all case-related work.
For example, where the NAC standards allow for 150 felony cases per year (including “high” level life without parole cases) at just 14 hours of work per case, the new recommendations suggest public defenders take just seven cases per year at 286 hours of work per case, the study said.
The study said that this process, a “weighted caseload model,” is the “gold standard for analyzing attorney need,” offering a “more accurate and nuanced account” of attorney workload. The approach is already used by more than 30 states to assess the need for judges, the study said.
Each jurisdiction would ideally conduct its own research for its resource planning, the study said.
Public defenders need in Illinois
In preparation for the implementation of the pretrial release provisions in the SAFE-T Act, which went into effect in September 2023, the Illinois Supreme Court noted in an August 30, 2023, Order that courts have been taking steps to address operational challenges related to scheduling in-person hearings, including “to enhance public defender services.”
In July 2023, Marcia Meis, Director of the Administrative Office of the Illinois Courts (AOIC), wrote that the Illinois Supreme Court and the AOIC are working on a plan to distribute $10 million appropriated by the General Assembly to the newly created Public Defender Fund. The funds will support public defenders and public defender services in 101 counties with populations of less than 3,000,000.
Illinois requires that counties with 35,000 or more residents set up a public defender office. Sixty-two out of 102 Illinois counties have fewer than 35,000 residents.
There are currently 120 public defenders’ offices listed in the Illinois Office of the State Appellate Defender’s directory.
To learn more, visit the Illinois Supreme Court’s website here.
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