Since the summer, many public defender offices have been temporarily shutting their doors to new clients, saying they’ve got too many cases to handle. In this segment of our series “Justice for All: The Missouri Public Defender in Crisis,” KSMU’s Jennifer Moore looks at the “caseload math” that went into determining when an office can shut its doors.
Picture this: an elementary schoolteacher walks into class on the first day of school to find a room crammed full of 100 rowdy first graders. It’s his job to single-handedly teach them to read and write, and he knows his end-of-year evaluations will reflect if he’s not successful.That’s how public defenders say their situation looks—they say they can’t do their jobs well because they’re stretched too thin. And in the case of a public defender, not doing your job well can result in innocent people being convicted for crimes they did not commit. Also, if public defenders skip a vital step, they run the risks of being sued for malpractice, or losing their licenses altogether.
On Capitol Avenue in downtown Jefferson City, the deputy director of the Missouri State Public Defender, Cat Kelly, is getting ready for another meeting.She says Missouri’s Public Defender Commission’s formula for when its offices can begin turning away clients is based on a set number of hours given to each type of case.
“Obviously, a murder case and a misdemeanor case are each one case. But the amount of work each one is going to take is drastically different,” she said. So the Public Defender Commission has allotted five hours for each misdemeanor case, for example, and 173 hours for each homicide where the death penalty is not being sought.
Each office keeps track of how many case hours it’s taken on and compares that to the attorney hours it has available. When an office reaches more hours of work than it has attorneys for, the doors close, and potential clients have to wait until the end of the month—even if they’re in jail.Kelly says those numbers are based on guidelines from the National Advisory Commission on Criminal Justice Standards and Goals, or the NAC. The American Bar Association recommends using those guidelines as a starting place.The Missouri State Public Defender has tweaked those guidelines in a few ways: it’s given sex offenses more time than other felonies, and it’s assigned a set time for probation violation cases—five hours.
It has also factored in state holidays, travel time, and time lawyers spend on administrative tasks like making copies, which it says it doesn’t have enough support staff for.
But one criticism of the NAC standards is that they’re outdated: the guidelines themselves were written in the early 70s, meaning that they’re older than many of the attorneys who use them now. Today, lawyers have computers and the internet, making certain tasks a lot quicker.
Again, Cat Kelly."On the other side, we’ve also got DNA, computer forensics, all sorts of much more complex criminal laws than we ever had back in the 1970s. So, those really sort of balance themselves out," Kelly said."We don’t think it’s very accurate at all, and we’re not sure how they arrived at that formula," says Darrell Moore, the treasurer of the Missouri Association of Prosecuting Attorneys.
He says assigning 14 hours to every felony case as the Public Defender Commission has done just isn’t right—especially on those cases that are so-called “fast-tracked.” That’s where an offender avoids jail by taking responsibility for the crime, paying restitution, and doing community service. He says he’s talked to public defenders about this.
“My point to them was that I don’t believe these fast-track cases are taking 14 hours. Maybe they take two or three hours, but not 14. But their point is that they count every case as 14, regardless of whether it takes two hours, three hours, one hour, or 11 hours. And to me, that’s a fallacy,” Moore said.
"That’s a very difficult, complex problem,” says Rodney Uphoff, who is the Elwood Thomas Missouri Endowed Professor of Law at the University of Missouri School of Law in Columbia. In the 1990s, he was appointed by the governor of Oklahoma to the board that oversaw the Sooner State’s Public Defense system.
He says assigning a rigid number of hours to a certain type of case is unrealistic. “Let’s just take a burglary case,” Uphoff said.
"Depending upon the case, depending upon the defendant’s past record, depending upon whether or not the defendant is involved in one or has multiple charges that he’s facing, depending upon the nature of the evidence against the person--a burglary case could be something that might take me three or four hours to handle, or it could take 100 hours to handle,” he said.Uphoff says the NAC guidelines are a good place to start, but that each office administrator has to be very flexible when managing cases.
He says Missouri’s caseload crisis comes from a long-term lack of funding for its public defender system. And, he adds, the unusually high turnover rates within Missouri’s public defender system only make its caseload situation worse.
According to the Missouri Public Defender Commission’s 2010 annual report, the turnover rate has improved, but only temporarily, they say, due to the bad economy. Still, one in every 15 public defenders quit in fiscal year 2010. And that’s much better than it was in 2006, when about one in five public defenders in Missouri jumped ship.
I’m Jennifer Moore.
Join us Wednesday at the same time--7:30 a.m.--when we look at a day in the life of a Missouri public defender.