National Public Defense Workload Study
by Nicholas M. Pace, Malia N. Brink, Cynthia G. Lee, Stephen F. Hanlon
Public defense attorneys with excessive caseloads cannot give appropriate time and attention to each client. Excessive caseloads violate ethics rules and inevitably cause harm. Overburdened attorneys are forced to choose cases or activities to focus on, such that many cases are resolved without appropriate diligence. A justice system burdened by triage risks unreliability, denying all people who rely on it — victims, witnesses, defendants, and their families and communities — efficient, equal, and accurate justice.
Ethics rules require lawyers to limit their workloads to ensure competent representation. But what should those limits be? Clear standards for public defense workloads are essential to policymakers' ability to fund and staff the defense function at appropriate levels, to public defense authorities' ability to conduct appropriate oversight, and to attorneys' ability to provide their clients with reasonably effective assistance of counsel pursuant to prevailing professional norms as guaranteed by the Sixth Amendment to the U.S. Constitution.
To create new national public defense workload standards, researchers conducted a comprehensive review and analysis of 17 state-level public defense workload studies conducted between 2005 and 2022 and then employed the Delphi method to facilitate the efforts of a panel of 33 expert criminal defense attorneys from across the country to come to a consensus on the average amount of time needed to provide constitutionally appropriate representation in an array of adult criminal cases.
Key Findings
Based on the consensus of an expert Delphi panel, the average time needed to represent an individual in an adult criminal case ranged from 286 hours to 13.5 hours, depending on case type
High-severity felony cases required the most time, on average: cases with a possible sentence of life without parole, 286 hours; murder cases, 248 hours; sex crimes cases, 167 hours; and other high-severity felony cases, 99 hours.
Mid- and low-severity felony cases required an average of 57 and 35 hours, respectively.
High- and low-severity cases for driving under the influence required 33 and 19 hours, respectively.
High- and low-severity misdemeanor cases required an average of 22.3 and 13.8 hours, respectively.
Probation or parole violation cases required an average of 13.5 hours.
Existing national public defense workload standards are outdated, not empirically based, and inadequate
The 1973 National Advisory Commission on Criminal Justice Standards and Goals (NAC) standards fail to differentiate among types of felonies, giving equal weight to a burglary, a sexual assault, and a homicide.
Using the 1973 NAC standards creates a risk of excessive workloads.
New national workload standards better reflect modern criminal defense practice and professional and ethical responsibilities
The new standards reflect expert attorneys' experiences with current criminal defense practice, including digital discovery and forensic evidence, as well as the expanded scope of a criminal defense lawyer's obligations, including advising clients on collateral consequences.
The new workload standards can be used to assist public defense agencies, policymakers, and other stakeholders in evaluating defender workloads.
Santa Monica, CA: RAND, 2023. 186p.