The gulf between an expensive justice system and a poor person accused of a crime can be frightening. Public defenders are meant to bridge the divide, but a new study finds too often, they simply don’t have the time for the job.
With few exceptions, public defense offices across the nation are grossly understaffed, with the result that not all defendants are getting the equal justice promised under the law. That’s the conclusion of The National Public Defense Workload Study released earlier this month.
The study was conducted by a team of attorneys and researchers from the RAND Corporation, the National Center for State Courts, the American Bar Association and the law offices of a private attorney, Stephen F. Hanlon.
Improvements in forensic evidence and such technical advances as the widespread use of DNA testing and video witness from body cameras have sharpened the system, but they have also increased the time it takes to prepare a case, the report states.
It was a different world 50 years ago when the guidelines for public defense of indigent clients were set by an entity known as the National Advisory Commission.
In 1973, it was accepted that the average amount of time a public defender would spend representing a client accused of a felony was 13.9 hours. For a misdemeanor, the average was 5.2 hours. Those averages were used as a basis for staffing public defense offices.
Even at the time, some criticized the so-called NAC standards as too low. Now, the study concludes, they are woefully outdated.
The authors suggest a more realistic standard would be 35 hours per felony and 22.3 hours per misdemeanor case. Potentially, that could call for doubling the number of staff attorneys in some public defense offices.
They also propose other reforms, including separating the “felony” category into different types and establishing different standards for, say, a murder charge and a non-violent theft charge.
“I love the study,” longtime St. Croix defense attorney Pamela Colon said Friday in an interview with the Source. She indicated it applies, generally, to the situation in the Virgin Islands as well as many other jurisdictions.
“The justice system is a two-tiered system in our country,” she said. “It’s a two-tiered system of Justice. It’s not right,” she said.
In private practice now, Colon once served as a federal public defender. More recently, she has represented the Virgin Islands Bar Association on the Public Defender Administration Board three separate times, once as president of the Bar and twice — including currently — as the sitting president’s designee to the board.
The five-member board governs the Office of the Territorial Public Defender. Individual board members are appointed by the governor, the president of the Legislature, the Bar Association, and the presiding judge of the Superior Court.
Colon supplied some statistics from the board, but she stressed her comments are her own opinions and don’t necessarily represent positions of the board.
The Source also sought an interview with Julie Todman, the interim territorial chief of the V.I. Public Defender’s Office, but she did not reply to several requests last week. She’s been filling in since last summer when the longtime head of the office, Samuel Joseph, left the position.
As of Friday, the V.I. Public Defender’s Office was handling 753 active cases, 539 of which involved felony charges, according to figures that Colon shared. Numbers were roughly evenly divided between the two jurisdictions, St. Croix and St. Thomas-St. John.
In July, according to budget testimony at the Legislature, the number was even higher: 938 active cases territory-wide. Numbers can fluctuate widely, given the nature of the court system, but they are routinely high.
Balancing this caseload are a total of 13 lawyers, five on St. Croix, seven on St. Thomas-St. John, including the chief of the office, who has major administrative duties as well, and a single attorney to handle appeals cases territory-wide.
How many attorneys should the office have?
“I would say 50 percent more than we do have,” Colon said, adding “at least another five.”
Colon estimated that about 80 percent to 90 percent of criminal defendants in the territory are classed as “indigent” for trial purposes, meaning they are unable to afford to pay an attorney to represent them. That is similar to the situation in many jurisdictions.
“I think you get much better justice if you have the hundreds of thousands of dollars that it costs” to present a strong defense, Colon said.
“It’s a tremendous thing to have the weight of the government against you,” she said, and to know that the outcome of the case can completely change your life. The “weight” includes law enforcement officers as well as government prosecutors.
In court, typically, “The government comes with two lawyers” to prosecute a case, she said. “That is an immediate advantage for the government. You only have your lawyer. That’s it.”
Ideally, the defense should also consist of at least two attorneys, if for no other reason than to have a backup.
“We get sick. We go on vacation. We have babies,” Colon said. If, for any reason, a public defender is unable to continue with a case, another attorney from the office has to fill in. This is problematic not only because the pinch hitter is not immediately familiar with the case and is juggling their own load already but also because it’s likely to create scheduling conflicts.
There’s also the issue of conflicts of interest.
If there are two (or more) defendants charged in a single case, each must have their own lawyer. Likewise, if a public defender represents a person in one case who then becomes a witness in another case, the public defender has to step away from the second case and someone else must step in. There are multiple ways for a conflict of interest to arise, Colon said. Each one leads to the need for more attorneys.
Historically, courts have tried to deal with overflow from the public defender’s office by occasionally assigning private attorneys to take on some of the load. Members of the Bar can be assigned a limited number of such cases and they are paid through the justice system, but generally at rates far below their rates for private clients.
Colon said that the V.I. Supreme Court is in the process of setting up another government-funded entity to take on this role instead of tapping attorneys in private practice. But, she said, it won’t affect the base caseload of public defenders; it will only change the way conflicts are handled.
Reform, like so many things, may come down to dollars and cents.
“Implementing takes money, and it’s very hard to get,” Colon said — especially when the funds are for defending people who are charged with crimes. Voters aren’t typically sympathetic to the idea of appropriating taxpayer dollars to public defense, so “It’s hard for politicians to do it.”
To Colon, aside from the issue of fairness, such thinking is also short-sighted on the economic level. If a person doesn’t get a fair trial, there should be an appeal, she said. And that just means more cost to the government.
One of the authors of the national study, Stephen Hanlon, has formed a non-profit called the Quality Defense Alliance, according to a published report. Its mission is to push for the implementation of new guidelines for public defenders through advocacy and, if necessary, through litigation.