In Brief:
- Until 2023, courts were following an outdated standard that seriously overestimated how many cases a public defender could handle in a year. Since new recommendations published two years ago, many states and counties have been trying to hire and contract enough public defenders to lower each one’s caseload to the new expectations.
- Heavy workloads and noncompetitive pay can discourage more people from becoming, or remaining, public defenders — which perpetuates the workload strain.
- Shortages of defenders can result in long wait times for cases to go to trial or for clients held in jail to meet with an attorney. It can also lead public defenders to avoid trials and instead seek plea deals that let them discharge a case quickly and move on to the next one.
Utah doesn’t have enough public defenders. A 2020 survey found some public defenders were assigned as many as 525 misdemeanor cases a year, an impossible load.
And the Beehive State isn't alone. In 2023, RAND published a report showing how overwhelming caseload expectations are for public defenders across the country, and recommending attorneys take on fewer cases per year. Before that, many governments had looked to caseload guidelines from the 1970s, which had assumed attorneys could take on far more cases than was actually practical. The updated expectations in the report threw the steep workforce gap into sharp relief.
“We’re very far away from being able to meet those … [new] standards. I think that’s common nationwide,” says Matt Barraza, executive director of the Utah Indigent Defense Commission. “A lot of states are taking a look at those and trying to implement them, but it's a challenge. In Utah, it would require basically quadrupling the amount of attorneys doing the work as public defenders.”
Like Utah, many states couldn’t even meet the caps set by the 1973 guidelines. These outdated standards claimed an attorney could handle 400 misdemeanors or 150 felonies in a year; even today some attorneys are assigned many times that. “In talking to some of the Louisiana public defenders, some of them have caseloads as high as 1,000 clients — how can you represent that?” says Lori James, executive director of the National Association for Public Defense (NAPD).
The hours simply aren’t there. An attorney with a caseload set under the 1973 standards — who worked a 40-hour week every week of the year, never taking time off or getting sick, and who had no responsibilities except to represent clients — would still only have about five hours to spend on each misdemeanor case, and only 14 per felony case. But low-level misdemeanor charges need attorneys to spend about 14 hours each, and the highest level felonies could require as many as 286 hours to properly handle, per the 2023 report.
Some jurisdictions are closer to meeting the new goals than others. In Utah, counties manage much of the public defender system, with support from the state. When it comes to meeting the new standards, “we’re probably halfway there in some counties, others are more of a quarter of the way there,” Barraza says.
A Vicious Cycle
Public defense can be performed by private attorneys contracted to do this work or by on-staff full-time public defenders. Uncompetitively low pay can discourage new law school grads from joining public defenders’ offices, however, because they need to be able to pay off their student debt, James says.
A lack of full-time staff creates further workload issues. Those hefty workloads, plus the emotional stress of fighting these cases, can discourage more people from entering or staying in the field.
“They work hard, and they work long, long hours,” James says. In some cases, “You have young folks who experience burnout or secondary trauma pretty quickly in their careers. … But you also find people who've been there for a while, who saw themselves as lifelong career public defenders, who, right now, in this particular climate, just can’t take it anymore.”
Private attorneys, meanwhile, may try to quickly wrap up these cases so they can get back to better-paying private clients.
COVID-19 made the problem worse. The added stress prompted those who were on the fence about the job to quit, and courts later reopened with a backlog of cases that only further overburdened the remaining defenders.
Human Impact
It’s well documented by now how a lack of public defenders creates logjams in the justice system and leaves the accused languishing in lockup. While they wait for representation, they’re unable to care for their family or work, and vulnerable to losing their job or housing. In other cases, they may be released pretrial but have a criminal case hanging over them; that, too, can be an impediment to getting a job or housing, says Aditi Goel, executive director of the Sixth Amendment Center, a nonprofit that advises policymakers on improving indigent defense services.
One Washington state county had to release five people, some accused of violent crimes, after public defender shortages left the accused in jail for too long without representation.
Low pay and heavy caseloads can also change how justice is handled. It can encourage attorneys to find the fastest way to close a case, such as accepting plea deals rather than undergoing lengthy trials.
“There’s a financial disincentive to go to trial, because you end up spending this time that cuts into your pay, essentially,” Barraza says.
Cash-strapped and conflicted
Barraza and his predecessor at the Utah Indigent Defense Commission have often had to convince rural county commissioners that it’s worth designating more of their limited budgets to public defense, rather than on the myriad other causes clamoring for attention, be it potholes or a new park. And when new county commissioners are elected, the convincing needs to happen all over again.
There’s an uneven playing field with public prosecutors. For county commissioners, funding the latter is “kind of a given,” Barraza says. NAPD’s James says she knows of some public defenders who switched to prosecutors’ offices for better pay.
Short funding for public defense doesn’t just affect salaries. It can also leave some public defender systems without enough social workers, investigators, paralegals and other support staff, and without continuing legal education training for the attorneys, James says. Lack of training opportunities leaves some jurisdictions with public defenders who, regardless of their desire to do good work, are “attorneys in name only,” Goel says.
Which entity oversees and funds public defense varies by state. In some, the state takes a strong hand, while in others, it falls to the counties. But Goel advocates for states to take on the brunt of funding public defense, because they have greater financial resources than counties. The counties with the most people eligible for public defense are also the ones with the tax bases least able to fund it, she notes.
In Utah, Barraza isn’t expecting any state funding increases. So, he’s looking for low-cost improvements. For one, his agency is reviewing contracts to try to ensure that defense attorneys are assigned to the general category of cases that match their expertise: adult criminal, youth defense or child welfare.
Utah is also providing more free online continuing education to public defenders and is considering moving some counties to a regionalized approach. That would mean that instead of various counties each creating part-time contracts with private defense attorneys, they’d instead collectively contract full-time attorneys who’d handle cases across the several counties.
And while state funding may not be growing, Barraza says that among Utah’s counties, “I think there has been in general an increase in awareness of the importance of adequately funding the defense side of things.”
Positive Signs
While public defender systems face many challenges, some states have been reworking their approach in promising ways.
For one, states like Idaho and Colorado have been eliminating the practice of compensating contracted private attorneys with flat fees for each public defense case they take on, at least for some types of cases. Critics see the flat-fee structure as problematic, because it creates financial incentives for spending the minimal amount of time on each client, as attorneys get paid the same whether they dedicate many hours or few.
More states have also been shifting the burden of paying for public defense away from local government, and a growing number of states have made the transition to a stronger state role. Idaho, for example, passed a law in 2023 creating a state public defender’s office after allegations that its prior system was falling short.
Michigan, too, has been making big changes over the past dozen years. Before 2013, its adult trial court public defense services were entirely funded and run by local governments, and they were funded in a patchwork way. The state passed a measure in 2013 creating a statewide office that could set standards over how public defense should work (for example, what training defense attorneys should have and how soon they must meet with a new client). The state also went from providing $0 toward public defense before 2013 to nearly $300 million today, per Goel.
“We want to see more and more states pick up the tab,” Goel says.
As of September 2024, 15 states took on full responsibility for funding public defense, 30 used a mix of state and local funding and five left it entirely to local funding, per the National Conference of State Legislatures.
