Pleading the Sixth: On October 10, 2012, the Missouri state auditor released a report on the state public defender system that the Missouri Association of Prosecuting Attorneys claims “shatters the unsupported claims” of excessive caseloads across the state and accuses the public defender of manufacturing a workload crisis “myth.” The Sixth Amendment Center read the same audit report and reached very different conclusions.
On October 10, 2012 the Missouri state auditor released a report on the Missouri state public defender system (MSPD) that concludes unequivocally “the MSPD’s growth in caseload has outpaced its growth in staffing resources.” Since 1990 public defender caseloads have increased by 70% while staffing has only increased 58%. In an attempt to deal with the increasing gap in workload and staffing, the audit report found that “MSPD has responded to its workload problems by reorganizing certain programs, redistributing caseloads to certain district offices, creating volunteer attorney programs,” and “requesting additional resources from the legislature.” It was therefore disconcerting to see the Missouri Association of Prosecuting Attorneys (MAPA) release their own press statement on the same day claiming that the audit report proves MSPD has manufactured a “myth” that public defenders work under excessive caseloads.
This is not the first time MAPA has claimed that the public defender caseload crisis is non-existent. On July 31, 2012, the Missouri Supreme Court ruled that the state public defender commission has the authority to declare unavailability due to case overload (to read more about the decision, click here). In response, MAPA issued a press statement on August 3rd that the “public defender system is not in a caseload crisis” and used a U.S. Department of Justice report to support their position (click here to read the Sixth Amendment Center’s refutation of the prosecutors’ position).
The state audit report determined that “[d]ue to numerous variables … the process of determining the acceptable caseload for a public defender office and additional resources needed, if any, is very complex.” The report suggests that the protocol MSPD used in determining case overload was insufficient due primarily to the fact that MSPD does not require attorney and support staff to track their time. As a result “the amount of resources needed to meet MSPD caseloads is unclear.”
MAPA takes that conclusion and makes a leap to the position that there is no caseload crisis simply because the auditor ultimately determined that the lack of time keeping forces MSPD to rely on “unsupported assumptions” in making its caseload calculations. Those “unsupported assumptions” are rooted in the National Advisory Commission on Criminal Justice Standards and Goals (NAC) attempt to quantify hard caps on the number of cases an indigent defense attorney can ethically handle in a given year and MSPD’s attempt to use the NAC workload standards to overcome the risk of institutionalizing inadequate representation through weighted caseload studies. We know that is a lot, so let us explain.
Weighted Caseload Studies
In his book, Securing Reasonable Caseloads: Ethics and Law in Public Defense, Professor of Law and Dean Emeritus of the Indiana University Law School, Norm Lefstein, states that weighted caseload studies “determine the amount of time, on average, that defense lawyers need to provide effective and competent representation to their clients.” In most weighted caseload studies, public defense attorneys are asked to track their time by “case-type” and by work category or “task.” In jurisdictions that have adopted attorney performance guidelines, the “work categories” will often aligned with case-specific standards (e.g., client contact, motions practice, legal research, etc.). Based on the time-keeping records, the study first determines the average amount of time to dispose of a case by case-type. Then, by using the “average” of all cases by case-type, a weighted caseload study is able to eliminate outliers of cases disposed rapidly and more complex cases that take longer to bring to disposition. For example, a weighted caseload study may determine that the average misdemeanor case in a particular jurisdiction may take six hours to complete.
From there, it is necessary to determine an average work year for an attorney. For example, an attorney who works 45 hours per week will work 2,340 per year (before accounting for holidays, vacations and other authorized leave). Dividing the average time to complete the average case by case-type into the work year will produce a standard that an attorney should not exceed.
Using the above example for misdemeanors (6 hours), the average attorney should handle no more than 390 misdemeanors in a given year and nothing else (2,340 hours divided by 6 hours per case = 390 weighted caseload standard).
The problem, of course, is that if a weighted caseload study is conducted in a jurisdiction experiencing excessive caseloads, the study will not come up with workload standards that secure ethical representation — rather the study serves to institutionalize the bad practice already occurring. For example, in a jurisdiction where public defense attorneys are expected to handle 780 misdemeanors per year, an objective weighted caseload will simply determine that the average misdemeanor is being done in three hours rather than six. (2,340 hours divided by 3 hours per cases = 780 weighted caseload standard). Simply put, a weighted caseload study cannot determine what is not occurring but should be done by attorneys to provide ethical representation.
There are two ways that most weighted caseload studies try to deal with this critical issue. First, besides case-related time categories, most weighted caseload studies attempt to capture things that policy-makers often never think about, but that take up significant time in an attorney’s day (e.g., waiting in court;
weighting waiting to see clients at incarceration facilities, etc.). By backing out the average time that the average attorney spends on non-productive work from the average work year, weighted caseload studies attempt to mathematically account for this time. For example, if an attorney ends up spending a half hour each day “waiting,” 130 hours can be subtracted from the work year (.5 hours x 5 days x 52 weeks = 130 hours). In the above example, this would reduce the workload standard from 780 misdemeanors to 737 misdemeanors per year. Similar adjustments can be made based upon work that is being done by attorneys that could more efficiently be handled by support staff (e.g., time could be backed out for time categories like “photocopying”). In any event, such adjustments do not make too big of a difference.
What weighted caseload experts have settled on is a methodology that tries to move beyond what is happening to one that adjusts to what should be happening. As Professor Lefstein explains, “a quality adjustment process” must occur, usually through surveying the attorneys in the jurisdiction being studied, to determine if they have sufficient time to perform all the tasks associated with the parameters of ethical representation. Concurrently, national criminal justice experts participate in a “Delphi” methodology — a process by which the most seasoned and well-respected trial lawyers are asked to determine the average number of hours necessary to complete a specific task on the average case, by case type. The experts and the local practitioners answers are compared and time is added per case type to the calculation to adjust for this added time.
Turning back to Missouri & the NAC standards
The weighted caseload process described above is the one that the Missouri state auditor thinks is the appropriate way to determine a caseload protocol for turning back cases. In its response to the auditor, MSPD states that when it was developing their current caseload protocol, MSPD did undergo a time study and did conduct a survey of public defenders to determine what was not being done that should be. However, they failed to conduct a “Delphi” study or adjust the time accordingly simply due to cost concerns. (MSPD was quoted a cost of $135,000 by a leading weighted caseload expert to complete these two steps — money that MSPD was not budgeted to spend.) As a stopgap measure MSPD relied on the National Advisory Commission on Criminal Justice Standards and Goals (NAC), national workload standards to, in essence, fill in for the panel of experts they could not afford to convene. As MSPD explains in its audit response:
The ABA’s Ten Principles of a Public Defense Delivery System, adopted in February 2002, stated, “national caseload standards should in no event be exceeded.” Since MSPD’s caseloads were so far in excess of national standards, the decision was made to first work on getting caseload down to that NAC standard; and then undertake the extra steps of determining what is still not being done on cases and how much more time it would take attorneys and staff to get those things done – i.e. developing a Missouri-specific weighted caseload protocol.
And it is really the NAC standards that are the focus of the state audit’s most serious criticisms. Because the NAC standards were promulgated in 1973, the state auditor presumes that they are no longer relevant because of the advancement in technology that make representing defendants more efficient (e.g., word processing, electronic legal research, etc.). Yet, advancing technologies just as readily can add hours to defense representation (i.e., having to review hours of surveillance videos; CDs or DVDs with reams of discovery materials; DNA evidence; etc.).
The state auditor faults MSPD for not being able to “verify the applicability of the national standards to the MSPD.” For example, the state audit questions whether or not the 2,080-hour work year used in the NAC standards accounts for time spent on non-case related matters (e.g., training, supervision, etc.). MSPD assumes that it does not and are faulted by the auditors for making that assumption. However, if the NAC standards do include such non-case related matters in the 2,080-hour work year, it would only serve to decrease the number of hours in the year left available for actual case-related matters, thus lowering the resulting standard.
Similarly, MSPD was faulted for not confirming the “case definition” used in the creation of the NAC standards. Yet, the MSPD caseload protocol is based solely on “new assignments,” while the NAC standards are based on any case handled (new assignments + existing open active cases). If MSPD followed the same methodology of counting any case “touched” during the year, the resulting calculus would dramatically reduce the number of cases that Missouri public defenders can competently represent.
In other words, any of the “assumptions” MSPD made were made to err on the conservative side of things. Far from resulting in a “shattering” of a manufactured myth that MAPA would have policy-makers believe, the state audit report points to a caseload crisis that is actually worse than currently understood. If MSPD can find the resources to complete all of the recommendations of the state auditor chances are it will result in caseload standards far below the NAC standards currently being used.
MSPD is caught in a bit of a catch-22. The state auditor suggests that in order to increase resources to resolve the case overload problems, MSPD must first expend money that it does not have available to (1) institute technological changes to allow for staff time-tracking, (2) to secure resources to complete the expert Delphi study and quality adjustments, while (3) asking an overextended staff to add more administrative tasks. MSPD must have the resources now to institute the state auditor’s recommendations to determine once and for all whether public defenders in the state are truly overworked. Already, the vast majority of counties have been placed on limited availability or will be on November 1, 2012.
As MSPD Chief Defender, Cat Kelly, stated in her own press release, “[w]hen you’re watching a warehouse burn to the ground, you may not know exactly how many firefighters would be ideal or what type of equipment would be the very best without more study — but you sure know that what you HAVE is not enough.”