Why embattled public defenders 'welcome' lawsuits against them

It is the duty of a public defender’s office to defend people in court, but it's becoming increasingly common for these offices to have to defend themselves.

In fact, with public defense offices overworked and underpaid to the point of a "national crisis," according to a former US attorney general, they are finding an unlikely ally in their efforts to gain the budgets and staffing necessary: the people who are suing them.

This may be why Derwyn Bunton, chief defender at Orleans Public Defenders (OPD) in New Orleans, has a peculiar optimism about the fact his office was named in a class action lawsuit filed last week by the American Civil Liberties Union (ACLU).

"While the lawsuit is unwelcome, I and our office welcome reform and hope this lawsuit provides for a real discussion," he says.

The discussion he wants to have centers around the need for more money and more attorneys, a chronic issue for public defenders offices nationwide. This month, due to staffing shortages, OPD started placing certain felony cases on waiting lists. The ACLU responded swiftly with a lawsuit, claiming that the move is unconstitutional because it denies those charged with felonies their Sixth Amendment right to an attorney. New Orleans is just the latest jurisdiction to see its public defender office slapped with a lawsuit. Cases have ranged from Florida to Washington, and, with many cities facing tough financial times, legal experts only expect the trend to continue.

"There's going to be more of these types of lawsuits filed because we’re seeing crushing, crushing caseloads" in public defender offices, says Colette Tvedt, director of public defense training and reform at the National Association of Criminal Defense Lawyer (NACDL).

Caseload overload

More than 80 percent of those charged with felonies are indigent, meaning they can't afford their own lawyer. The Supreme Court’s 1963 decision in Gideon v. Wainwright reaffirmed the Sixth Amendment right to a criminal defense lawyer and required states to provide a defense attorney to those who couldn’t afford one. But more than 50 years after the ruling, legal advocates argue that heavy caseloads and unreliable funding are degrading public defender offices around the country, inflicting lasting damage on defendants and, sometimes, the public defenders themselves.

Caseloads are so heavy public defenders say it's impossible to do their jobs properly. Lawyers are working hundreds of cases at a time (often meeting with defendants only once, for a few minutes) and at such a pace that many burn out or grapple with health issues.

Attorneys in New Orleans, for example, spend an average of seven minutes on each case, according to an analysis by Mother Jones in 2013. Mr. Bunton adds that OPD staff attorneys often work double the recommended caseload.

"No lawyer in the office is within the standards for caseloads," he says.

The national recommendations, frankly, are "arcane," says Ms. Tvedt of the NACDL. They were established in 1973, before forensic and scientific advancements made trials more complex. It would take 18 months for a public defender to actually work through one year's worth of cases, Mother Jones found.

Tolls on defendants and defenders

And those heavy caseloads can have serious consequences for their clients. Caseloads are so high attorneys often hurry to secure quick plea agreements so they can move on to the next case. Tina Peng, an OPD staff attorney, described her caseload as "unconstitutionally high" in a Washington Post op-ed.

"It means that I miss filing important motions, that I am unable to properly prepare for every trial," she wrote. "I plead some of my clients to felony convictions on the day I meet them. If I don't follow up to make sure clients are released when they should be, they can sit in jail for unnecessary weeks and months."

Other public defenders have complained of personal tolls on their physical and mental health. "Gideon," a public defender in Connecticut who writes a pseudonymous blog about the work, described the issues in an e-mail to the Monitor.

"[The job] requires a pace that is not physically doable," he wrote. "People burn out frequently and often, leaving high stress jobs, abusing substances like alcohol or just making do with providing the bare minimum of representation." 

The intense, unrelenting workload means a high turnover rate in many public defender offices. Part of the problem in New Orleans, Bunton, the OPD chief defender says, is that the lawyers who have been leaving are the most experienced ones.

Ms. Peng wrote that the week she passed the bar in 2013, she began representing clients facing mandatory life sentences on felony charges.

It was this issue that drove Bunton to enact the work stoppage that is now at issue in the lawsuit. Budget cuts, a hiring freeze, and the resignations of experienced attorneys led him to announce earlier this month that the OPD would be putting certain felony cases onto a waiting list until attorneys become available to take them. 

“As we shrink, that problem grows because we have more cases and fewer lawyers to handle them,” he says. “A lot of our experienced lawyers chose to find something else to do… [and] in accordance with the ethics of the Constitution, I can't give the most important cases to inexperienced lawyers."

Three other jurisdictions in Louisiana have implemented similar wait lists in recent months, but it was the action in New Orleans that prompted the ACLU lawsuit against OPD and the Louisana Public Defender Board (LPDB). The organization described the wait list as unconstitutional.

"So long as you're on the public defender waiting list in New Orleans, you’re helpless," said Brandon Buskey, a staff attorney with the ACLU’s Criminal Law Reform Project, in a statement. "Your legal defense erodes along with your constitutional rights."

A lawsuit 'in name only'

On the surface the ACLU is suing the OPD, and the LPDB, for violating its constitutional mandate. But looking at similar lawsuits in the past – including some filed by the ACLU – the OPD may end up benefiting from the action, says Daniel Medwed, a law professor at Northeastern University.

"It's a lawsuit against the public defenders office in name only," he says. "The real target is the state, or the funding stream."

The tactic goes back decades, and has been effective. In 1995 the ACLU filed a similar lawsuit in Connecticut, and four years later a settlement led to "significant improvements" in the state's chronically underfunded defense system, the organization said, including increased funding, hiring more attorneys, new caseload goals, and a new training program.

This past June the ACLU made similar demands of Idaho in a lawsuit, and have now turned their attention to Louisiana.

Similar cases have been heard in New York, Florida, Missouri, and Pennsylvania in recent years, with high courts in Florida and Missouri upholding the rights of public defenders to decline cases if they were short-staffed.

Yet legal experts note that these lawsuits, while usually successful, are only short-term solutions. Connecticut provides an example of this: 12 years after the settlement, another budget crisis threatened funding to state public defenders.

The cyclical nature of politics and government finance means lawsuits will always result in temporary gains, says Professor Medwed.

"Years later there’s a new legislature, a new fiscal crisis, funding dries up," he says. "If we really want lasting change there have to be more actual laws and rules in place to prevent backsliding."

Another challenge for the OPD is the unusual nature of their funding streams. Two-thirds of public defender budgets are made up of local court fines and fees in Louisiana, Bunton says.

"Your Sixth Amendment rights are only good as the traffic enforcement around the state of Louisiana," he adds.

Legal experts see the Louisiana funding system as an ethical minefield.

Ellen Yaroshefsky, a professor at the Cardozo School of Law in New York and executive director of the Jacob Burns Ethics Center, testified to a New Orleans judge in November that she was "very troubled by the situation this public defenders office is in."

 "To call this a 'justice system' is really a misnomer," she added. "I believe this entire office is operating as a conflict of interest."

On DOJ radar

One positive development is that the US Department of Justice appears to be taking an increased interest in the issue. In 2013 then-US Attorney General Eric Holder acknowledged that public defender systems "exist in a state of crisis." Since then, the DOJ has filed several Statements of Interest in Sixth Amendment cases around the country. The department filed two such statements in 2015, according to the NACDL.

"The [DOJ] has taken an active role in promoting indigent defense," the NACDL writes on its website. "These statements contain powerful language that could be of use to indigent defenders arguing against similar practices in their own jurisdictions."

The DOJ has not spoken on the case in New Orleans. While Bunton says the lawsuit is in some ways regrettable, he still hopes it can help him achieve his ultimate goal: stable and adequate funding for his office.

"I'll admit the suit came a little faster than I thought, but I expected there would be some sort of litigation given the actions we and other jurisdictions have to take," he says.

"I hope [the suit] makes decision-makers look very seriously at funding reform for public defense, and look very seriously at how we deliver the Sixth Amendment right to poor people in Louisiana."