ALLI KATZEN—Although recognized as a crisis by the American Bar Association for over 30 years, the issue of overburdened and overworked public defenders is yet to be resolved. In fact, as budget cuts deepen, pay disparities intensify, and over-criminalization continues, the problem is worsening. Last month, the New York Times highlighted the potential constitutional violation—ineffective assistance of counsel—that accompanies the issue of overworked public defenders, when it detailed the caseload of an average public defender in Louisiana, Jack Talaska. The article analyzed Mr. Talaska’s caseload in light of an ABA study that assessed how many hours an attorney should spend on different types of criminal cases, and determined that in order to effectively represent each of his 194 clients, he “needed to do the work of five full-time lawyers.” Lacking the necessary cloning machinery to provide such representation, public defenders are effectively forced to represent people who face the possibility of imprisonment, without the ability to dedicate the time that studies have found to be necessary; in other words, they are unable to provide effective assistance of counsel.
Although the Sixth Amendment guarantees criminal defendants the right to legal counsel, it was not until 1963 that this right was effectuated in the landmark Supreme Court decision, Gideon v. Wainwright. However, there was no test for violations of these rights to be examined until 1984, when the Supreme Court established the standard in Strickland v. Washington. In order to prevail on an ineffective assistance of counsel claim under Strickland, the Court requires a showing that the defense counsel’s performance fell below an objective standard of reasonableness, and that that performance prejudiced the defendant’s outcome at trial. The defendant not only has to establish both of these prongs, but he is likely making his case from a cell and quite possibly without the help of a lawyer.
A usual ineffective assistance of counsel claim, brought under Strickland, can be made through use of the trial record. Bringing a claim for ineffective assistance of counsel due to the fact that defendant’s attorney was overworked is a much harder case to be made because the defendant is unlikely to find any evidence of that on the record. Furthermore, it is not just at trial that defendants are feeling the consequences of having overburdened counsel; criminal defendants are sitting in jail longer awaiting trial and taking more plea deals as a result; their cases aren’t being effectively litigated pre-trial, as counsel has less time to file motions, conduct investigations, and meet with clients. These consequences snowball, and the list of negative effects stemming from overworking and underpaying public defenders is endless.
Because of the many hurdles in bringing a successful claim under Strickland, particularly as it relates to this large-scale problem, petitioners have been forced to seek creative measures to attempt to fix this epidemic. Some public defender’s offices, including Miami-Dade, have gone directly to the courts themselves, attempting to cap caseloads. In other jurisdictions, individual defendants are turning to the courts, relying on an oft-overlooked Supreme Court ineffective assistance of counsel case, United States v. Cronic. Whereas Strickland is the appropriate remedy for individual cases, Cronic allows claims to focus on systemic issues that may have caused their ineffective assistance of counsel at trial. Although the Cronic Court rejected the specific ineffective assistance of counsel claim in that instance, the Court recognized that there are times when “the surrounding circumstances ma[k]e it so unlikely that any lawyer could provide effective assistance that ineffectiveness [is] properly presumed without inquiry into actual performance at trial.” Some of these claims are leading to reform in funding for public defenders’ offices around the country.
Last year, many law firms raised the first-year salary for first year associates to as high as $190,000. As private firms continue to raise salaries, and public defenders’ starting salaries remain stagnant at under $50,000, it is becoming increasingly difficult to retain public defenders. Rather than paying public defenders higher salaries and enabling them to provide more effective representation, society is choosing to allocate those funds to housing people in jails, which is arguably more expensive (at a 14:1 ratio according to some studies), and only exacerbates the problems. Raising public defenders’ salaries would allow for less violations of the Constitution, and eventually, lead to saving money in imprisonment costs.
While raising public defenders’ salaries would not result in a direct fix to the problem, doing so would entice more lawyers to do this type of work, and in turn, lighten the caseload. Stephen Hanlon, general counsel of the National Association for Public Defense, stated that “[w]hen obstetricians have five times as much work as they can handle competently, terrible things happen . . . . When public defenders have five times as much work as they can handle competently, terrible things happen, too.”
