Minor Crimes, Massive Waste
The Terrible Toll of America’s Broken Misdemeanor Courts

N A T I O N A L A SS O C I A T I O N O F C RI MI N A L D E F E N S E L A W Y E RS
April 2009

Supported in part by grants from the Open
Society Institute and the Ford Foundation.

C O P Y R I G H T © 2 0 0 9 N AT I O N A L A S S O C I A T I O N O F C R I M I N A L D E F E N S E L A W Y E R S
This report is subject to a Creative Commons Attribution-Noncommercial-No Derivative
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N A T IO N A L A SS O CIA T I O N O F
C R I M I N A L D EF E NS E L A W YE R S

1660 L Street NW, 12th Floor
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Phone: 202-872-8600; Fax: 202-872-8690

Minor Crimes, Massive Waste
The Terrible Toll of America’s Broken Misdemeanor Courts

By
Robert C. Boruchowitz
Malia N. Brink
Maureen Dimino

JOHN WESLEY HALL

EDWARD A. MALLETT

President, NACDL
Little Rock, AR

President, FCJ
Houston, TX

NORMAN L. REIMER

KYLE O’DOWD

Executive Director, NACDL
Washington, DC

Associate Executive Director
For Policy, NACDL
Washington, DC

NACDL Indigent Defense Committee
Rick Jones
Co-Chair
New York, NY

Anthony Cotton
Vice-Chair
Waukesha, WI

William Wolf
Co-Chair
Chicago, IL

E. Gerry Morris
Immediate Past-Chair
Austin, TX

Geneva Vanderhorst
Vice-Chair
Washington, DC

TABLE OF CONTENTS

ABOUT THE NATIONAL ASSOCIATION OF CRIMINAL DEFENSE LAWYERS
ABOUT THE FOUNDATION FOR CRIMINAL JUSTICE
ACKNOWLEDGEMENTS
EXECUTIVE SUMMARY
INTRODUCTION

...4

..............5

..............................6
...............................7

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Methodology . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
The Misdemeanor Courts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
The Volume of Misdemeanor Offenses . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Rights of Defendants in Misdemeanor Cases . . . . . . . . . . . . . . . . . . . . . . 11
Right to Counsel in Misdemeanor Cases . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Why Are Lawyers Needed in Misdemeanor Cases? . . . . . . . . . . . . . . . . . 12
Consequences of a Misdemeanor Conviction . . . . . . . . . . . . . . . . . . . . . 12
PROBLEMS IN MISDEMEANOR COURTS

. . . . . . . . . . . . . . . . . . . . 14

Absence of Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Uninformed Waiver of Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Eligibility Limitations for Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Conferring Directly with Prosecutors . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Recommendations — Absence of Counsel . . . . . . . . . . . . . . . . . . . . . . . 17
Deterrents to Asking for Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Delay . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Application Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Recommendations — Deterrents to Asking for Counsel . . . . . . . . . . . . . 19
Misdemeanor Caseloads . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
The Meaning of the Caseload Numbers . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Excessive Caseloads Put Lawyers in Jeopardy . . . . . . . . . . . . . . . . . . . . . 22
Recommendations — Excessive Caseloads . . . . . . . . . . . . . . . . . . . . . . . 24
Why Are Misdemeanor Caseloads So High? . . . . . . . . . . . . . . . . . . . . . . . . 25
Overcriminalization . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Misdemeanor Indigent Defenders Take Brunt of Budget Shortages . . . . . . . 26

Minor Crimes, Massive Waste

Recommendations — Causes of Excessive Caseloads . . . . . . . . . . . . . . . 27
Misdemeanor Defense in Practice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Meet and Plead . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Denial of Bond/Inability to Make Bail and the Pressure to Plead . . . . . . . 32
Prosecutorial Pressure to Plead . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Impact of Increased Collateral Consequences
on Misdemeanor Caseloads . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Early Disposition Projects . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Effect of Excessive Caseloads on the Clients . . . . . . . . . . . . . . . . . . . . . . 35
Recommendations — Misdemeanor Defense in Practice . . . . . . . . . . . . . 36

3

Misdemeanor Defenders Lack Access to Support Services . . . . . . . . . . . . 38
Recommendations — Lack of Support Services . . . . . . . . . . . . . . . . . . . 39
Inexperienced Counsel in Misdemeanor Courts . . . . . . . . . . . . . . . . . . . . 39
Lack of Training . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Lack of Supervision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Recommendations — Inexperienced Counsel
in Misdemeanor Courts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Lack of Standards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
Recommendations — Lack of Standards . . . . . . . . . . . . . . . . . . . . . . . . . 41
Inadequate Compensation for Defenders in Misdemeanor Courts . . . . . . 42
Recommendation — Inadequate Compensation . . . . . . . . . . . . . . . . . . . 43
Judicial Conduct in Misdemeanor Courtrooms . . . . . . . . . . . . . . . . . . . . . 44
Disparate Treatment of Indigent Defendants . . . . . . . . . . . . . . . . . . . . . . 44
Judges Face Discipline for Not Honoring Right to Counsel . . . . . . . . . . . . 45
Recommendations — Judicial Conduct in Misdemeanor Cases . . . . . . . . 45
Lawyer Burnout in Misdemeanor Courts . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
Recommendation — Lawyer Burnout . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
Disproportionate Effect on Minority Communities . . . . . . . . . . . . . . . . . . 47
Recommendations — Disproportionate
Impact on Minority Communities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
CONCLUSION

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48

The Terrible Toll of America’s Broken Misdemeanor Courts

Table of Contents

ABOUT THE NATIONAL ASSOCIATION
OF CRIMINAL DEFENSE LAWYERS

T

4

he National Association of Criminal Defense Lawyers (NACDL) is the preeminent organization in the United States advancing the goal of the criminal defense
bar to ensure justice and due process for persons charged with a crime or wrongdoing. NACDL’s core mission is to: Ensure justice and due process for persons accused
of crime … Foster the integrity, independence and expertise of the criminal defense profession … Promote the proper and fair administration of criminal justice.

Founded in 1958, NACDL has a rich history of promoting education and reform through
steadfast support of America’s criminal defense bar, amicus advocacy, and myriad projects designed to safeguard due process rights and promote a rational and humane criminal justice system. NACDL’s 12,000 direct members — and more that 90 state, local
and international affiliates with an additional 40,000 members — include private criminal defense lawyers, public defenders, active U.S. military defense counsel, and law
professors committed to preserving fairness in America’s criminal justice system. Representing thousands of criminal defense attorneys who know firsthand the inadequacies
of the current system, NACDL is recognized domestically and internationally for its expertise on criminal justice policies and best practices.
The research and publication of this report was made possible through support of individual donors and foundations to the Foundation for Criminal Justice. This report would
not have been possible without the specific support of the Ford Foundation and the Open
Society Institute.
For more information contact:

T H E N A TIO NA L A SSO C IA TIO N O F
C R I M I N A L D EF E NS E L A W YE R S

1660 L Street NW, 12th Floor
Washington, DC 20036
202-872-8600

This publication is available online at
www.nacdl.org/misdemeanor

Minor Crimes, Massive Waste

ABOUT THE FOUNDATION
FOR CRIMINAL JUSTICE

T

he Foundation for Criminal Justice (FCJ) is organized to preserve and promote the core values of America’s justice system guaranteed by the Constitution — among them due process, freedom from unreasonable search and
seizure, fair sentencing, and assistance of effective counsel. The FCJ pursues this
goal by seeking grants and supporting programs to educate the public and the legal
profession to the role of these rights and values in a free society and assist in their
preservation throughout the United States and abroad.
The Foundation is incorporated in the District of Columbia as a non-profit, 501(c)(3)
corporation. All contributions to the Foundation are tax-deductible. The affairs of the
Foundation are managed by a Board of Trustees that possesses and exercises all
powers granted to the Foundation under the DC Non-Profit Foundation Act, the
Foundation’s own Articles of Incorporation, and its Bylaws.
For more information contact:

F O U ND A T IO N F O R C R IM IN A L J U ST I CE

1660 L Street NW, 12th Floor
Washington, DC 20036
202-872-8600

The Terrible Toll of America’s Broken Misdemeanor Courts

5

5

ACKNOWLEDGEMENTS

T

he authors wish to thank the Board of Directors of the National Association of
Criminal Defense Lawyers and the Board of Trustees for the Foundation for
Criminal Justice for their support of this project.

6

The research and drafting of this report was a collaborative effort between NACDL and
Professor Robert C. Boruchowitz of the Seattle University School of Law. Professor
Boruchowitz served as lead researcher on the project. In addition to teaching in the
Youth Advocacy Clinic, Professor Boruchowitz is the Director of The Defender Initiative, a project that works to document problems in public defense systems and to advance efforts to improve public defense representation.
The authors express their thanks to all those who assisted in the research of this report.
E. Gerry Morris, Suzanne Spencer, Angela Ramage-Wolf, Shelley Stark, and Mark
Rankin assisted with site visits in Texas, Illinois, Pennsylvania, and Florida. Lauren
McLane and Mary Lyons, students at Seattle University School of Law, provided research and site visit assistance to Professor Boruchowitz. William Wolf provided guidance and support to NACDL staff.
We also thank Stephen McConnell, Jeffrey Daman and their colleagues at Dechert LLP,
Marvin Schechter, and Vic Walczak of the ACLU of Pennsylvania, all of whom conducted early site visit work in Pennsylvania that, in large part, led to the development
of this project.
We thank the Open Society Institute for supporting of the project, including hosting the
conference on misdemeanor courts in New York City. We also thank the Ford Foundation for its support. We thank the Dean of Seattle University School of Law, Kellye
Testy, as well as the Director of Continuing Legal Education, Jim Rosenfeld, and his colleagues, Julie McClure and Rebecca Parker, who graciously hosted the conference in
Seattle.
We also express our appreciation to Seattle University Professor Deirdre Bowen, who
reviewed our survey and recommended changes, Robert Spangenberg and David Newhouse of The Spangenberg Group, who offered information and advice, as well as participated in the conferences, and David Carroll of the National Legal Aid & Defender
Association, with whom the authors consulted on a number of aspects of this report.
Finally, the authors offer their appreciation to the participants at the site visit locations
across the country for their cooperation and candidness, as well as the numerous defenders who responded to our survey and follow-up questions.

Minor Crimes, Massive Waste

EXECUTIVE SUMMARY

T

he explosive growth of misdemeanor cases is placing a staggering burden
on America’s courts. Defenders across the country are forced to carry unethical caseloads that leave too little time for clients to be properly represented. As a result, constitutional obligations are left unmet and taxpayers’ money
is wasted.
NACDL’s comprehensive examination of misdemeanor courts, including a review
of existing studies and materials, site visits in seven states, an internet survey of defenders, two conferences, and a webinar, demonstrated that misdemeanor courts
across the country are incapable of providing accused individuals with the due
process guaranteed them by the Constitution. As a result, every year literally millions of accused misdemeanants, overwhelmingly those unable to hire private counsel, and disproportionately people of color, are denied their constitutional right to
equal justice. And, taxpayers are footing the bill for these gross inefficiencies.
Legal representation for misdemeanants is absent in many cases. When an attorney
is provided, crushing workloads often make it impossible for the defender to effectively represent her clients. Counsel is unable to spend adequate time on each
of her cases, and often lacks necessary resources, such as access to investigators,
experts, and online research tools. These deficiencies force even the most competent and dedicated attorneys to engage in breaches of professional duties. Too often,
judges and prosecutors are complicit in these breaches, pushing defenders and defendants to take action with limited time and knowledge of their cases. This leads
to guilty pleas by the innocent, inappropriate sentences, and wrongful incarceration,
all at taxpayer expense.
This report explains, in depth, these and other problems observed in misdemeanor
courts and offers recommendations for reform, while highlighting best practices
from across the country. The recommendations include:

1

Divert misdemeanors that do not impact public safety
to penalties that are less costly to taxpayers.

Defenders and judges across the country noted that misdemeanor dockets are clogged with crimes
that they believe should not be punishable with expensive incarceration. Right now, taxpayers expend
on average $80 per inmate per day1 to lock up misdemeanants accused of things like turnstile jumping, fish
and game violations, minor in possession of alcohol, dog leash violations, driving with a suspended license,
pedestrian solicitation, and feeding the homeless. These crimes do not impact public safety, but they do have
a huge impact on state and local budgets across the country.
Continued on next page

The Terrible Toll of America’s Broken Misdemeanor Courts

7

EXECUTIVE SUMMARY
Continued from previous page
A number of jurisdictions have had success diverting some of these offenses to less costly penalties and reducing the caseloads of misdemeanor courts, thereby freeing up resources for other pressing needs. For example, in King County, Washington, a relicensing program allows individuals who have had their driver’s
license suspended pay the fines that led to the suspension through community service. The program is open
to individuals regardless of whether they have a criminal charge pending, and, if completed, any pending
charges of driving with a suspended license (DWLS) are dropped. An evaluation of the program found that
it not only resulted in a dramatic decrease in the number of DWLS cases bogging down misdemeanor courts,
but also generated net revenue.

8
Reduce pressure on defendants to plead guilty,
particularly at first appearance.
The overwhelming caseloads in misdemeanor court put pressure on everyone in the
court system — defenders, prosecutors and judges — to resolve cases quickly. Prosecutors use one time only plea offers to force early pleas. Judges utilize bail determinations and the threat of pretrial incarceration to encourage early pleas. Defenders,
if they are even involved, note that a better deal might not come along and that they
have no time to fully investigate the client’s case. As a result, an extraordinary number of
misdemeanor defendants plead guilty at their first appearance in court, whether or not they committed the crime. Not only is such coercion in stark violation of the Constitution, it also means taxpayers are footing the bill to imprison the innocent, as well as other defendants, whose situation
might be better served by alternatives to incarceration.

2

In New York City in 2000, almost 70 percent of misdemeanor cases were disposed of at
the first appearance — most through a guilty plea.
Site team members in Washington State observed two defenders advise as many as 132 defendants on an arraignment calendar in under four hours. Most stipulated to the police report, which resulted in a finding of guilt.

Enforce ethical obligations of all participants
in misdemeanor adjudications.
Misdemeanor courts are rife with violations of professional ethical standards. Defenders countenance caseloads that prohibit them from providing competent representation to their clients. Prosecutors talk directly
with defendants and convince them to waive their constitutional rights. Judges encourage defendants to
proceed without counsel and plead guilty quickly in order to move dockets. Ethical obligations for all
professionals in misdemeanor court should be vigorously enforced to ensure that every defendant receives a fair and unbiased proceeding.

3

Minor Crimes, Massive Waste

Provide counsel for any defendant facing the
possibility of incarceration.

4

Often in misdemeanor courts, defendants are not informed of their right to counsel
under the Sixth Amendment, or are coerced into waiving counsel to avoid having to
spend additional time in jail awaiting the appointment. Sometimes they are even required to pay
an application fee in order to obtain the counsel that is guaranteed by the Constitution.
Time and time again site team observers watched individuals plead guilty without counsel.
Judges actually acknowledge the widespread violation of Sixth Amendment rights. For
example, Chief Justice Jean Hoefer Toal of the Supreme Court of South Carolina told a
group of attorneys at a state bar meeting, “Alabama v. Shelton is one of the more misguided decisions of the United States Supreme Court … so I will tell you straight up we
[are] not adhering to Alabama v. Shelton in every situation.”2

Judges and prosecutors routinely speak directly to defendants and seek waivers of counsel in order to resolve the case more quickly. In Colorado, a state statute provides that a
misdemeanor defendant must engage in plea negotiations with a prosecutor before the defendant can receive appointed defense counsel.3

It is indefensible that, despite longstanding constitutional precedent, a significant percentage of
defendants in misdemeanor courts proceed without an attorney. The absence of counsel in these
cases undermines the fairness and reliability of the criminal justice system and violates the Constitution, opening state and local governments up to costly lawsuits.

Provide public defenders with the resources necessary
to effectively represent their clients.
Across the country, misdemeanor defenders report caseloads six and seven times greater than the national
standards. In Chicago, Atlanta and Miami, defenders carry more than 2,000 misdemeanor cases per
year.4 With these massive caseloads, defenders have to resolve approximately 10 cases a day — or one
case every hour — not nearly enough time to mount a constitutionally adequate defense.

5

Defender offices, contract defender offices, and assigned counsel lists must have sufficient attorneys to permit the maintenance of ethical caseload standards. Additionally, defenders should
have access to resources necessary to provide effective assistance, including legal research
services, investigators, experts, social workers, and mental health support services.

The consequences for the accused individuals involved, no less for the Constitution, demand that misdemeanor courts provide due process and equal justice for all those who appear in them. All across
America, misdemeanor courts are failing to meet this critical standard. Implementation of the recommendations of this report will save taxpayers much needed resources while making these courts, and
our justice system, reliable for all Americans.

The Terrible Toll of America’s Broken Misdemeanor Courts

Executive Summary

9

T

INTRODUCTION

10

he vast majority of accused individuals first come into contact with the criminal justice system through a minor offense, known as a misdemeanor. Yet remarkably little
attention has been devoted specifically to understanding what happens to defendants
at the misdemeanor level.
Criminal justice reform studies have often noted that extensive problems exist in misdemeanor
courts, but have rarely focused sharply on these courts. For this reason, NACDL decided to investigate misdemeanor courts throughout the country, document the strengths and weaknesses,
and identify ways to improve the operations of these courts. Drawing upon existing literature and
research, on-site visits in a number of jurisdictions, interviews and survey results from defenders across the country, and the input of diverse participants at two conferences and a webinar, this
report details existing problems in misdemeanor courts, highlights best practices, and makes a
series of recommendations for change.

Methodology
Over the course of a year, NACDL, together with Professor Robert C. Boruchowitz of Seattle University School
of Law, gathered a wide range of existing studies, reports, and statistics on misdemeanor courts and misdemeanor defense, including law review articles, news coverage, governmental studies, and expert reports, as
well as information from other organizations working on indigent defense reform, including reports and manuals on misdemeanor practice.
After reviewing these materials, the authors organized site visits to misdemeanor courts in a number of jurisdictions. Prior to the visits, NACDL representatives conducted interviews with key criminal justice personnel
to understand the operation of the local misdemeanor courts, as well as perceived strengths and weaknesses. On
the visits, NACDL representatives observed the operation of the misdemeanor courts, and conducted additional
interviews with key players in misdemeanor proceedings, including judges, defense counsel, prosecutors, and
accused persons. Where possible, site teams gathered data on misdemeanor prosecutions, public defender caseloads, and other relevant statistics.
The authors selected locations for site visits based on a preliminary assessment of problems by NACDL’s staff
and Professor Boruchowitz, in consultation with experts on indigent defense around the country. Geographical
diversity and the type of public defense system were also considered. Site visits occurred in Arizona, Florida,
Illinois, North Dakota, Pennsylvania, Texas, and Washington. In many of these states, public defense5 is organized on a county-by-county basis, and, when possible, a number of counties were visited.
The authors conducted an Internet survey of defenders across the country seeking information on misdemeanor
practice in each respondent’s jurisdiction, as well as respondent’s impressions of the operation of misdemeanor
courts. In total, 185 individuals responded to the Internet survey. The respondents reported practicing in 26
states and two tribal courts.6

Minor Crimes, Massive Waste

Additionally, NACDL held two conferences for the purpose of seeking input on the problems associated with misdemeanor courts, as well as possible solutions. The first
conference was held in New York in May 2008, and the
second took place in Seattle in July 2008. Over 150 public
defenders, prosecutors, judges, and reform activists from
across the country attended the conferences. Finally,
NACDL hosted a webinar on the preliminary findings of
the report with experts from across the country to seek additional input.
The report documents the findings of this extensive research effort.7 The report first provides an introduction to
misdemeanor courts, reviewing the charges brought in misdemeanor courts, as well as the rights of the misdemeanor
defendant. It then outlines the common problems observed
and reported in misdemeanor courts throughout the country.
At the conclusion of each section, the report enumerates
policy reform recommendations that would address the
problems described, highlighting best practices observed
around the country.

The Misdemeanor Courts

In most states, crimes are divided into two categories —
felony and misdemeanor. Misdemeanors are the less serious offenses, for which punishment is generally limited to
one year in jail.8 Common misdemeanor offenses include
petty theft, disorderly conduct, public drunkenness, curfew violations, loitering, prostitution-related offenses,
driving under the influence, driving with a suspended license, resisting arrest, minor assault, under-age possession
of alcohol, and minor controlled substance and paraphernalia offenses.
Misdemeanors are commonly adjudicated in separate
courts from felony cases. These courts often adjudicate
minor civil offenses as well as misdemeanor criminal offenses. In a number of states, such as Arizona, Missouri,
New York and Pennsylvania, some of the judges in these
courts are not lawyers.9

The Volume of Misdemeanor Offenses

Most people who go to court in the United States go to
misdemeanor courts. The volume of misdemeanor cases
is staggering. The exact number is not known, as states
differ in whether and how they count the number of misdemeanor cases processed each year. The National Center for State Courts collected misdemeanor caseload
numbers from 12 states in 2006. Based on these 12
states, a median misdemeanor rate of 3,544 per 100,000
was obtained.10 If that rate held true across the states,
the total number of misdemeanor prosecutions in 2006
was about 10.5 million, which amounts to 3.5 percent
of the American population.11 While this overplays the
actual prosecutions by population, because of individuals charged multiple times and non-citizen prosecutions,
it is a startling reminder of the breadth of the impact of
these courts.12

11 11

Rights of Defendants in
Misdemeanor Cases

Misdemeanor defendants, like all those accused of crimes,
are entitled to due process.13 They have the right to receive
the evidence against them and present evidence in their defense. They have a right to confront witnesses. And, they
have the right to have their guilt proven beyond a reasonable doubt. Not all misdemeanor defendants are entitled to
a jury trial, however. The federal constitutional right to a
jury trial has been interpreted to apply only when a defendant is facing more than six months in prison.14

Right to Counsel in Misdemeanor Cases
The Sixth Amendment provides, “In all criminal prosecutions, the accused shall enjoy the right…to have the Assistance of Counsel for his defense.” In Gideon v. Wainwright,
the U.S. Supreme Court interpreted this right to require the
state to provide counsel to a defendant charged with a
felony who could not afford to hire his own counsel. The
Court stated, “reason and reflection require us to recognize
that, in our adversary system of justice, any person haled
into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him.”15

Volume of Misdemeanor Cases

1972

5 million

2006
The Terrible Toll of America’s Broken Misdemeanor Courts

10.5 million

Introduction

Even after Gideon, persons charged with misdemeanor offenses were not guaranteed appointed counsel, and the misdemeanor courts were rife with abuse. In 1968, five years
following Gideon, Professor John M. Junker observed:
[A] large majority of the [people] annually charged with non-traffic misdemeanors must, if they are financially
unable to hire an attorney, face the bewildering, stigmatizing and (especially
at this level) assembly-line criminal
justice system without the assistance
of counsel. The misdemeanor prosecution is the “Appalachia” of the criminal justice system.16

12

It is for this reason that, in Argersinger v. Hamlin, the U.S.
Supreme Court extended the right to counsel to misdemeanor defendants.17 The Court further protected the right
to counsel in Alabama v. Shelton, holding that a defendant
must have had counsel in the underlying adjudication for
incarceration to be imposed for a violation of misdemeanor
probation.18 The Court reasoned:
Deprived of counsel when tried, convicted, and sentenced, and unable to
challenge the original judgment at a
subsequent probation revocation hearing, a defendant … faces incarceration
on a conviction that has never been subjected to “the crucible of meaningful adversarial testing.”19

Why Are Lawyers Needed in
Misdemeanor Cases?

No one should underestimate the importance of counsel advising a person of his or her rights in any criminal case.
Even in a simple case, the law can prove complex.
The law is not a fixed set of rules. It is always affected by the
individual circumstances of a case. For example, one might
think the law regarding murder is simple — one person cannot kill another. But, if the circumstances surrounding the
killing show that the person who was killed was, in fact, the
aggressor, the law becomes far less black and white, and the
case becomes considerably more complex.
This is no less true of misdemeanors. The law of trespass
may seem obvious — either a person was on private property or the person was not. But, there are a number of factors that can complicate a trespass case: Was the property
obviously private or was there some reason to believe it was
public property? Was there a warning, either posted or verbal? Was an event occurring that was open to the public?
The answer to these questions can mean the difference between innocence and guilt. Without an attorney to sort
through all the facts and assess what is legally important,
these critical distinctions too easily can be overlooked.

In addition, the sentence and the collateral consequences
can be quite different depending on which crime is found to
have been committed. A lawyer also is needed to help the
accused person sort out the implications of plea bargains
offered by the prosecutor.
As the Court stated in its decision in Argersinger:
The requirement of counsel may well be
necessary for a fair trial even in a pettyoffense prosecution. We are by no means
convinced that legal and constitutional
questions involved in a case that actually
leads to imprisonment are any less complex than when a person can be sent off
for six months or more.20

Attentive defense counsel is particularly important in misdemeanor courts because the volume of cases means that
prosecutors and judges too often and too easily can overlook factual issues. Indeed, the Supreme Court observed
that the volume of misdemeanors21 results in pressure for
“speedy dispositions,” and stated that there is significant
evidence of “prejudice” resulting from “assembly-line justice” in misdemeanor courts.22

Consequences of a
Misdemeanor Conviction

There is a prevailing misconception that misdemeanor convictions do not truly affect a person. In fact, a common
question received during the research for this project was,
“Why are you spending time on misdemeanors?” Underlying this comment is the belief that it matters less whether
the justice system is accurate in misdemeanor cases. But,
the consequences of a misdemeanor conviction can be dire.
As the Supreme Court noted in deciding Argersinger, “the
prospect of imprisonment for however short a time will seldom be viewed by the accused as a trivial or ‘petty’ matter
and may well result in quite serious repercussions affecting his career and his reputation.”23 Indeed, a wrongful conviction, even in a minor case, is pernicious. If the
constitutionally mandatory processes of our criminal justice system cannot determine accurately a person’s guilt or
innocence of a minor criminal charge, court outcomes are
subject to question in all cases.
In the years since the Argersinger decision, the collateral
consequences24 that can result from any conviction, including a misdemeanor conviction, have expanded significantly. These consequences can be quite grave. The
defendant can be deported,25 denied employment, or denied
access to a wide array of professional licenses.26 A person
convicted of a misdemeanor may be ineligible for student
loans and even expelled from school.27 Additional consequences can include the loss of public housing and access
to food assistance, which can be dire, not only for the misdemeanant but also for his or her family.28 Fines, costs and
other fees associated with convictions can also be stagger-

Minor Crimes, Massive Waste

ing and too frequently are applied without regard for the
ability of the defendants to pay the assessed amounts.29
As Rick Jones, the Executive Director of the Neighborhood
Defender Service of Harlem, noted:
Standing in the courtroom, it may seem
like a wise thing just to get the criminal
charge over with by pleading guilty, but
a criminal conviction, even for a minor
offense, has an enormous impact on a
client’s life. She may lose her housing,
her job, her health or food benefits. It can impact the custody of her children. She may face deportation. No
criminal conviction should be regarded
as minor or unimportant.
Misdemeanor convictions also have serious consequences
with regard to any future criminal charges faced by the
same defendant. A minor conviction can limit a person’s
ability to vacate, set aside or dismiss an earlier, more serious conviction. It can also greatly increase the punishment
for any future offense and reduce opportunities for sentencing reductions. One example is the inability of a person
with a prior misdemeanor conviction to utilize the controlled substances “safety valve” statute and related provision in the federal sentencing guidelines.30 A defendant who
was previously convicted of a misdemeanor and received
30 days or more in jail or more than one year of probation,
and who later faces a federal drug crime charge, is ineligible for a reduction of sentence under a provision that permits federal judges to sentence below the mandatory
minimum set forth in the statute.31

The Terrible Toll of America’s Broken Misdemeanor Courts

13

Introduction

PROBLEMS IN
MISDEMEANOR COURTS
14

M

ore than 35 years ago, Professor William Hellerstein of the Brooklyn Law School
wrote “the criminal court, the misdemeanor court, is such an abomination that it
destroys any myth or notion that I ever had about … American criminal justice.”32
The statement could just as easily have been made today.
The research, surveys, site visits, and interviews conducted by NACDL confirmed that the
operation of misdemeanor courts in this country is grossly inadequate and frequently unjust.
Witnesses overwhelmingly described programs bereft of the funding and resources necessary
to afford even the most basic tools essential for fair adjudications. As a result, literally millions of accused misdemeanants, particularly those unable to hire private counsel, and disproportionately people of color, routinely are denied the due process to which the Constitution
entitles them.
Almost 40 years later, the misdemeanor criminal justice system is rife with the same problems that existed prior to the Argersinger decision. Legal representation for indigent defendants is absent in many cases. Even when an attorney is provided to defend a misdemeanor
case, crushing workloads make it impossible for many defenders to effectively represent
clients. Too often, counsel is unable to spend sufficient time on each of their cases. This
forces even the most competent and dedicated attorneys to run afoul of their professional
duties. Frequently, judges and prosecutors are complicit in these
breaches, pushing defenders to take action with inadequate time,
“[T]he criminal court, the
despite knowing that the defense attorney lacks appropriate inmisdemeanor court, is such an formation about the case and the client.

abomination that it destroys
any myth or notion that I ever Absence of Counsel
had about … American
criminal justice.”
— Professor William Hellerstein,
Brooklyn Law School.

Despite the clear ruling by the U.S. Supreme Court that persons accused
of misdemeanors have a right to court-appointed counsel, a significant percentage of defendants in misdemeanor courts never receive a lawyer to
represent them. A Bureau of Justice Statistics Special Report in 2000 cited
a survey of jail inmates conducted in 1989 and 1996. In the survey, 28.3
percent of jail inmates charged with misdemeanors reported having had
no counsel.33

Minor Crimes, Massive Waste

Site team observations in several states indicated that the
percentage of misdemeanor defendants without counsel is
greater than the BJS study suggested.34 Time and time again
site team observers watched individuals plead guilty without counsel.
In North Dakota, the observer noted that counsel was not
appointed or present at arraignment for misdemeanor cases,
despite the fact that most defendants pled guilty at that hearing and many were sentenced to jail time. The judge never
informed the defendants of their right to counsel. Instead,
the judge asked each defendant, “Did you speak to a
lawyer?” When the defendant indicated that he or she did
not, the judge asked, “Are you going to?” The defendants
universally answered in the negative, and the judge proceeded to accept the plea and sentence the defendant.
In numerous other jurisdictions, as in North Dakota, site
teams observed judges who failed to inform defendants of
their right to have counsel appointed if they could not afford
to hire counsel. In fact, frequently the disregard for the
Supreme Court’s right to counsel rulings was blatant. For
example, at a meeting of the State Bar, the Chief Justice of
the South Carolina Supreme Court publicly stated that she
instructed misdemeanor court judges to ignore a Supreme
Court Sixth Amendment ruling:
Alabama v. Shelton [is] one of the more
misguided decisions of the United States
Supreme Court, I must say. If we adhered to it in South Carolina we would
have the right to counsel probably … by
dragooning lawyers out of their law offices to take these cases in every magistrate’s court in South Carolina, and I
have simply told my magistrates that we
just don’t have the resources to do that.
So I will tell you straight up we [are] not
adhering to Alabama v. Shelton in every
situation.35

Documentation and reports from across the country confirm the frequency with which the right to counsel is completely disregarded in misdemeanor courts:

TEXAS: “Three-quarters of Texas counties appoint
counsel in fewer than 20 percent of jailable misdemeanor cases, with the majority of those counties appointing counsel in fewer than 10 percent of cases.
The vast majority of jailable misdemeanor cases in
Texas are resolved by uncounseled guilty pleas.”36
CALIFORNIA: In Riverside County, California,
more than 12,000 people pled guilty to misdemeanor
offenses without a lawyer in a single year.37
MICHIGAN: “People of insufficient means in
Michigan are routinely processed through the criminal justice system without ever having spoken to an
attorney in direct violation of both Argersinger and

“The dirty little secret of the criminal
justice system is that most eligible
people do not get defenders.”
— Edward Monahan, Deputy
Public Advocate, Kentucky
Department of Public Advocacy.38

Shelton. Many district courts throughout Michigan
simply do not offer counsel in misdemeanor cases at
all, while others employ various ways to avoid their
constitutional obligation to provide lawyers in misdemeanor cases.”39

15
Uninformed Waiver of Counsel
How is it that so many people go without counsel in misdemeanor court? As noted above, in some jurisdictions, the
defendant’s constitutional rights are simply disregarded and
never acknowledged. More often, however, the constitutional rights are acknowledged, but hastily disposed of with
a “waiver.”
Waivers, even of constitutional rights, are not illegal. The
U.S. Supreme Court has concluded that an adult defendant
has the right to waive counsel, but first the judge must: (1)
inform the defendant of his or her right to appointed counsel;40 and (2) make the defendant “aware of the dangers and
disadvantages of self-representation.”41 The inquiry by the
judge should be thorough.42 In other words, the judge must
confirm that the defendant voluntarily, knowingly, and intelligently decided against using a lawyer and in favor of
self-representation. Similarly, national performance standards provide that indigent defendants should not be called
upon to plead guilty until counsel has been appointed or
properly waived.43
In a number of jurisdictions, site teams observed judges ignoring the rules regarding waiver. Time after time, courts
made clear to defendants that they must waive counsel to
proceed. There were no inquiries into the education or sophistication of the defendants and very few efforts to warn
defendants regarding the dangers of self-representation or
the kind of assistance counsel could provide. Often the
waiver was incorporated into the first part of the proceeding and was presented as a rhetorical, compound question
directed at whether the defendant wanted to dispose of the
case quickly. The judge asked the defendant something like,
“You are waiving counsel and wish to proceed now, right?”
and the defendant responded, “Yes.”
In Maricopa County, Arizona, the site team observed a
judge practically instructing defendants to waive their right
to counsel. For example, the judge said the following:

The Terrible Toll of America’s Broken Misdemeanor Courts

Problems

You are charged with reckless driving.
So, I guess basically before we talk about
it, let me do a couple preliminaries. … I
want you to waive your right to an attorney. You have a right to have an attorney,
but I’m not going to give you the public
defender. You would have to go and hire
one and I don’t think you’re going to do
that. I think you and I are going to talk
about this right here, right now, right?
The defendant then signed a form waiving his right to
counsel.

16

As in Maricopa County, the right to counsel and the warnings regarding waiver of counsel are frequently enumerated in a written form. In many instances, the court handed
the form to a defendant with no explanation and said,
“Sign here,” and the defendant signed. The court did not
conduct a thorough inquiry of the defendant as to his or
her ability to read or whether the defendant understood
what he or she signed.

Eligibility Limitations for Counsel

In some jurisdictions, counsel is not appointed due to restrictive financial eligibility guidelines. In Gideon, the
Supreme Court provided that counsel should be appointed
for those “financially unable to obtain counsel,” or “too
poor to hire a lawyer.”46 Problematically, the Supreme
Court did not establish a threshold or process for determining that financial eligibility.
As a result, practices and policies for determining eligibility for public defense services differ widely from state to
state. Indeed, frequently these practices and policies differ
from county to county, and courtroom to courtroom.47 Defenders across the country noted that many defendants who
are financially incapable of retaining counsel are denied appointed counsel.
For example, in Lower Kittitas, Washington, approximately
16 percent of people who apply for defenders are denied.
During the observation visit, the commissioner suggested to
defendants that they might want to talk to the prosecutor before getting a lawyer. The commissioner made no inquiry
into whether the defendant could afford to retain counsel.
As a result, defendants who proceed without counsel may be
doing so despite being unable to hire an attorney.

“The defendant is usually told
he must first talk to a
prosecutor about his case and
get a plea offer before he is
allowed to have a lawyer
appointed.”
— A Tennessee public defender.44

In Tampa, Florida, when a member of the site team entered
the misdemeanor courtroom, a court official immediately
presented her with a form that combined a waiver of counsel with a plea of guilty. She was told to take a seat and fill
out the form. Among other things, the form asked her to
attest that, “I am of sound mind and body and hereby freely
and voluntarily waive my right to an attorney in the case(s)
above in accordance with Florida Rules of Criminal Procedure 3.160(e).” Although the form described at the outset the dangers of waiving counsel, at the point of asking
for waiver of the rights under the rule, the form neither
quoted the language of the rule nor did it explain that the
rule describes the rights of all defendants to court-appointed counsel.45

Conferring Directly with Prosecutors
Often defendants are encouraged, or even required, to discuss their cases directly with prosecutors. Ethically, this is
problematic, particularly if the prosecutor is aware that the
waiver of counsel, if there was one, was not sufficiently informed and voluntary.
Ethics rules generally prohibit a lawyer from giving advice to an unrepresented person whose interests may be
adverse.48 In fact, the model ethical rules specifically require prosecutors to “make reasonable efforts to assure that
the accused has been advised of the right to, and the procedure for obtaining, counsel and has been given reasonable opportunity to obtain counsel.”49 Further, the rules
forbid a prosecutor from seeking to obtain waivers of important pretrial rights from unrepresented accused persons.50 Despite these clear prohibitions, site visits and
research demonstrated that it is common for prosecutors
to confer directly with defendants, frequently requesting
and processing the defendants’ waiver of counsel, and then
negotiating guilty pleas.
In Hays County, Texas, for example, court staff directed
misdemeanor defendants to confer with the prosecutor
about a possible plea before the defendants had a meaningful opportunity to request the appointment of counsel. In
fact, the site team observed that no defense attorney was
present in the courtroom, nor was a judge. Two prosecutors
sat at counsel table — one at each table. They called a defendant’s name and then negotiated a plea directly with the
defendant. The judge waited in another courtroom. After

Minor Crimes, Massive Waste

pleas were negotiated, the defendant would proceed to the
courtroom where the judge was located, and a different
prosecutor would inform the judge of the plea agreement.
Only in some of the cases where the plea involved a jail
sentence did the prosecutor inform the defendant that he or
she must sign up for a court-appointed lawyer. Unfortunately, not all defendants pleading to jail time were informed of the right to receive counsel.
The site team witnessed a similar process in a northeastern
Pennsylvania county. Defendants on the misdemeanor docket
were told to go to a room in the basement before their cases
were called. When observers went down to the basement to
observe what was happening, they discovered a prosecutor in
a conference room. The prosecutor was negotiating plea
deals directly with defendants who would then go back up to
the courtroom to plead guilty and be sentenced.
In Kittitas County, Washington, the commissioner presiding
over misdemeanor arraignments dealt directly with all defendants. Neither a prosecutor nor a defense attorney was
present. The commissioner frequently advised defendants
that they might be able to work something out directly with
the prosecutor. The court’s practice was to provide the defendant with a form that had the phone number of the prosecutor at the top of the form, and information about
contacting the contract defender at the bottom of the form.
During the site team’s observations of the court, a number
of defendants asked to speak with the prosecutor. There was
no colloquy on waiver of counsel. Rather, the court warned
defendants that “once you have an attorney, the prosecutor
can’t talk to you directly.”
In Colorado, the standard practice is for a misdemeanor defendant to speak directly with the prosecutor. Indeed, a
statute specifically directs the prosecutor to speak directly
with the defendant and come to a plea agreement. Colo.
Rev. Stat. §16-7-301(4) states:
In misdemeanors, petty offenses, or offenses under title 42, C.R.S., the prosecuting attorney is obligated to tell the
defendant any offer that can be made
based on the facts as known by the prosecuting attorney at that time. The defendant
and the prosecuting attorney may engage
in further plea discussions about the case,
but the defendant is under no obligation to
talk to the prosecuting attorney. The prosecuting attorney shall advise the defendant
that the defendant has the right to retain
counsel or seek appointment of counsel.
The application for appointment of counsel and the payment of the application fee
shall be deferred until after the prosecuting attorney has spoken with the defendant
as provided in this subsection (4). Upon
completion of the discussions, the prosecutor shall inform the court of whether a
plea agreement has been reached[.]

“Alabama v. Shelton [is] one of the more
misguided decisions of the United States
Supreme Court, I must say … so I will tell
you straight up we [are] not adhering to

Alabama v. Shelton in every situation.”
— Chief Justice Jean Hoefer Toal,
Supreme Court of South Carolina.
In practice, most misdemeanor defendants in Colorado
never see a public defender. The practice is not only ethically problematic, it also violates the most recent pronouncement of the U.S. Supreme Court on the appointment
of counsel, which provides that counsel must be appointed
before or at the defendant’s first appearance before a judicial officer.51

17

Recommendations —
Absence of Counsel
1.

The right to counsel should be observed in
accordance with Argersinger v. Hamlin
and Alabama v. Shelton.

As the Supreme Court stated in Argersinger, “[u]nder the
rule we announce today, every judge will know when the
trial of a misdemeanor starts that no imprisonment may be
imposed, even though local law permits it, unless the accused is represented by counsel … and therefore know
when to name a lawyer to represent the accused before the
trial starts.”52 Despite this pronouncement, more than 35
years later, the Court’s ruling is widely ignored.

It is indefensible that, despite Gideon, Argersinger and
Shelton, a significant percentage of defendants in misdemeanor courts do not have a lawyer represent them. The
U.S. Supreme Court has time and again acknowledged that
defense counsel is an integral part of the adversary system,
and necessary to ensure accurate outcomes in court. The
absence of counsel in misdemeanor cases fundamentally
undermines the fairness and reliability of the criminal justice system.

2.

Waivers of counsel should be handled carefully, with judges ensuring that the defendant fully understands his or her right to
counsel, as well as the dangers of waiving
counsel.

“Counsel is needed so that the accused may know precisely
what he is doing, so that he is fully aware of the prospect of

The Terrible Toll of America’s Broken Misdemeanor Courts

Problems

going to jail or prison, and so that he is treated fairly by
the prosecution.”53 A judge should “never attempt to encourage persons to waive their right to counsel, and accept no such waivers unless they are knowing, voluntary
and intelligent, and on the record[.]”54 The dangers of
waiving the right to counsel must be fully explained to
each defendant, before the waiver of counsel is permitted, and the judge must question the defendant fully to
ensure that he or she understands the right to counsel and
the implications of a waiver.
A waiver form is not a substitute for a colloquy. If a
waiver form is used, the colloquy must still ensure that
the defendant fully understands the right to counsel and
the dangers of waiving the right. The form should serve
merely to reinforce the important conversation that the
judge has with the defendant.

18

Additionally, a defendant should be encouraged to consult with counsel before effectuating a waiver. Only by
consulting with a defense attorney can a defendant be
fully confident that waiver is appropriate in his or her
case.

3.

Appointment of counsel should be automatic for any defendant who appears
without counsel until it is demonstrated
through a fair and impartial eligibility
screening process that the defendant has
the financial means to hire an attorney to
represent him or her in the matter
charged.

Counsel must be appointed to any defendant who is financially unable to hire counsel.55 In other words, if a
person cannot afford to hire an attorney without substantial financial hardship, counsel should be appointed.56 Substantial hardship should be determined by
looking at the typical cost of hiring counsel for the type
of charge the defendant is facing. Moreover, the individual’s ability to pay must not only assess his or her income and available resources, but also his or her
expenses, including family support obligations and
debts.57

The assessment of whether an individual can afford to
hire counsel should be made through a formalized
process that ensures uniformity and avoids conflicts of
interest.58 Jurisdictions should “[e]rr on the side of providing counsel, and avoid overly stringent screening criteria that chill the exercise of the right to counsel.”59 A
default in favor of the appointment of counsel encourages authorities to undertake screening quickly and efficiently. Indeed, if attorneys are provided to all
defendants who appear without counsel at first appearance, screening should be completed in advance of any
subsequent hearing, so that the defendant is never forced
to appear without counsel. Additionally, prosecutors
should be excluded from participating in the eligibility
determination process.60

4.

Ethical prohibitions on prosecutors
speaking with defendants should be
strictly enforced.

The American Bar Association House of Delegates
passed a resolution in August 2005, which addressed the
ethical obligations of judges and lawyers to meet the
constitutional guarantee of effective assistance of counsel. The resolution states, “Judges should, consistent
with state and territorial rules and cannons of professional and judicial ethics: … (c) take appropriate action
with regard to prosecutors who seek to obtain counsel
and guilty pleas from unrepresented accused persons, or
who otherwise give legal advice to such persons, other
than the advice to secure counsel.”61
In criminal cases, given that all defendants who cannot
afford counsel are entitled to appointed counsel, it
should be assumed that each defendant is or will be represented by defense counsel until and unless a waiver of
counsel, with a full and appropriate colloquy, is
processed by the court. Until that time, no defendant
should be encouraged or required to talk to a prosecutor.
Indeed, prosecutors should be strictly forbidden from
communicating directly with defendants, and breaches
of this rule should be addressed through the regular bar
disciplinary authority.

Deterrents to Asking
For Counsel
Even when the judge informs the defendant that he or
she has a right to counsel, frequently other factors, such
as delay or the cost of court processes, compel the defendant to waive counsel.

Delay
Judges often make it clear to defendants that there are
no defense lawyers present in the courtroom to assist at
that time, but, if they want the case to proceed that day,
they can proceed without counsel. From observation visits across the country, site team members reported many
judges saying to defendants, “You can wait for counsel,
or you can proceed now without counsel.”
For defendants, delay can cause significant problems.
There is the ongoing burden of having a criminal charge
pending. There is also the burden of multiple court dates.
Often, this obligation requires a person not only to miss
several days of work, but also to find alternate child care.
These inconveniences can significantly strain a defendant’s resources, particularly someone who is indigent.
The threat of delay is particularly acute for those defendants who are in custody. It is a frequent misunderstanding that people accused of misdemeanors,

Minor Crimes, Massive Waste

particularly non-violent misdemeanors, do not remain in
jail during their case. In fact, people charged with misdemeanors frequently are detained pending trial, particularly if they are indigent. In these situations, further
delaying adjudication to wait for counsel means additional time in jail. Sometimes, defendants spend more
time in jail waiting for their day in court than they would
if they pled guilty and were sentenced.
A couple of recent cases, documented by law professors,
aptly demonstrate these problems:62

GEORGIA: Tony Humphries was charged with
jumping a subway turnstile in Atlanta. He sat in jail
for 54 days before a lawyer was appointed, far
longer than the sentence he would have received if
convicted. His incarceration cost the taxpayers
$2330.

MISSISSIPPI: A woman accused of a shoplifting
offense spent a year in jail, before any trial, without even speaking to her court appointed lawyer.

Application fees have a deterrent effect on the exercise
of a defendant’s right to counsel. This deterrent effect
can be stronger in misdemeanor cases where the defendant may erroneously view a conviction as minor or
unimportant. “The potential chilling effect of application
fees is particularly troubling given recent reports of
judges accepting and even encouraging invalid waivers
of counsel and guilty pleas from unrepresented indigent
defendants charged with misdemeanors, in efforts to
move cases through their overburdened dockets as
quickly as possible.”66 When they learn of the fee, defendants frequently choose to waive the right to counsel
to avoid the charge.

Recommendations — Deterrents
To Asking for Counsel
1.

Defense counsel should be available to represent an accused person at the first appearance.

In Allegheny County, Pennsylvania, cases are assigned
to an attorney a day or two before the pretrial conference, which is held six weeks after the “formal arraignment.” During that six-week period, there is no actual
representation. Up to 10 weeks can pass before an attorney actually works on the case. During the site visit, one
of the senior managers in the defender office described
this as “the chief weakness” of the office. Another attorney noted that the court rules require motions to be filed
within 30 days of the formal arraignment, which is impossible because the lawyer is not assigned to the case at
that point.

The Supreme Court frequently has acknowledged that most
defendants are not capable of effectively representing themselves in criminal judicial proceedings. As the Court stated
in Powell v. Alabama, “[t]he right to be heard would be, in
many cases, of little avail if we did not comprehend the
right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law.”67 The simplest, most effective way to ensure
that a defendant understands the charge(s) against him or
her, receives a full explanation of the court’s procedures,
makes informed decisions regarding whether to invoke or
waive critical rights, and does not sit in jail unnecessarily on
a minor charge is to provide representation by a defense attorney at the defendant’s first appearance.

Application Fees

The first appearance is critical, particularly in misdemeanor
cases. Not only are bail determinations made, but because
so many misdemeanor cases are resolved at first appearance, pleas are entered and sentences imposed. Proceeding
without counsel can have a significant prejudicial effect on
the defendant. The defendant may not understand the effect
of speaking to the judicial officer and may incriminate himself. He may be forced to make difficult assessments about
what he should and should not tell the judicial officer. For
example, imagine the defendant is a domestic worker who
is paid in cash by her employer. If the judge asks the defendant whether she is employed — the defendant has to
decide, without counsel, whether to say yes or just not reply.
She likely will worry that saying yes will result in her employer being reported to the Internal Revenue Service, and
that she will lose her job if that happens. Similarly, a defendant asked about family in the area may be hesitant to
answer if the family members are in the country illegally.

To receive public defense services in some jurisdictions, a defendant must submit an application and pay
an application fee.63 In the early 1990s, the use of application fees for those who sought appointed counsel
proliferated.
In South Carolina, for example, an indigent defendant
must pay a $40 fee to be eligible for a public defender.64
Although authorized, waiver of the fee does not occur
often. A defender from South Carolina, in response to
the survey, reported that the fee “keeps many misdemeanor level clients from seeking … services.”
In Washington, one attorney stated that about half of her
clients are college students. They are required to pay a
fee of $200, which many cannot afford. New Jersey allows application fees of up to $200, and some municipalities charge the maximum amount.65

19

When a defendant stands silent with regard to these major
factors in bail determination, he or she is often jailed pending trial, which gives rise to horror stories of persons in jail,

The Terrible Toll of America’s Broken Misdemeanor Courts

Problems

pretrial, for longer than the maximum punishment for the
crime. Such detentions are not only unnecessary, but also extremely expensive, and the costs accrue directly to taxpayers.

20

The potential prejudicial effects become even more serious
when the defendant is considering pleading guilty at first
appearance, not simply addressing the issue of bail. Too
often, misdemeanor defendants are pushed, for expedience
and convenience — for them as well as for the court — to
accept a small punishment quickly and resolve the case.68
Too many defendants plead guilty without understanding
whether they had a defense to the charge, the collateral consequences of the conviction, the conditions of probation, or
the consequences of violating probation, including incarceration.69 It is the role of the defense lawyer to provide this
information, a role that the defense lawyer can only fulfill
if he or she is present when the critical decisions are being
made. Particularly in misdemeanor court, the first appearance is that critical time.

2.

No application fee should be charged for
public defense services.

On its face, a non-waivable application fee is anathema to
the right to counsel. The Minnesota Supreme Court has held
that a “co-payment” required of all public defense clients
was unconstitutional because it made no provision for “the
indigent or for those for whom such a co-payment would
impose a manifest hardship.”70 Similarly, a New Jersey
court reversed a conviction for driving with a suspended license because the trial judge had refused to waive the $50
application fee or consider the defendant’s ability to pay the
fee. The court wrote:
[A] trial judge must be more than an unyielding revenue officer. When the concern for collecting a fifty dollar
application fee is weighed against a defendant’s right to counsel and a fair trial,
the scales of justice shift dramatically in
favor of the defendant. Given the serious
nature of the charge, as well as the apparent bona fide indigent status of the defendant, as demonstrated by the

“[T]he volume of misdemeanor cases,
far greater in number than felony
prosecutions, may create an obsession
for speedy dispositions, regardless

appointment of counsel on other charges,
there were compelling reasons to carefully evaluate the defendant’s request for
the appointment of counsel. Unfortunately, the trial judge’s preoccupation
with the payment of the application fee
foreclosed the defendant’s opportunity to
obtain assigned counsel.71
Application fees can discourage an accused from seeking
court-appointed counsel, particularly where waiver of the
fee is unavailable, not understood by the clients, or rarely
utilized. Those seeking counsel at public expense are doing
so because they lack the funds to hire private counsel. In
many jurisdictions, to be eligible to receive appointed counsel, the defendant must be at or below the poverty line, or
some small multiple thereof.72 If a defendant cannot pay the
fee and does not understand that the fee may be waived, she
may feel she has no other choice but to proceed without
counsel. For this reason, no application fee should be charged
to access counsel in misdemeanor cases.
If a fee must be charged for public defense services, it
should be a contribution fee subject to waiver and the procedure for waiver should be well publicized and easily invoked. In 2004, the American Bar Association adopted
Guidelines on Contribution Fees for Costs of Counsel in
Criminal Cases. Guideline 2 addresses the Determination
of Ability to Afford a Contribution Fee, and states:
An accused person should not be ordered
to pay a contribution fee that the person is
financially unable to afford. Whenever an
order for a contribution fee is under consideration, the accused person or counsel
should be given an opportunity to be
heard and to present information, including witnesses, concerning whether the fee
can be afforded. If a contribution fee is
ordered prior to providing counsel to the
accused person, the decision to require a
contribution fee should be subject to review at the request of counsel and counsel should be given an opportunity to be
heard and to present information, including witnesses, concerning whether the fee
can be afforded.73
Further, the ABA Guidelines require that notice be provided
in advance that a contribution fee may be required “if the
person has the ability to do so without substantial financial
hardship.”74 The notice should state “that counsel will be
provided at all stages of the proceedings regardless of
whether the person actually pays the fee.”75

of the fairness of the result.”
— U.S. Supreme Court, Argersinger v. Hamlin,
407 U.S. 25, 34 (1972).

Misdemeanor Caseloads

No matter how brilliant and dedicated the attorney, if the attorney is given too large a workload, he or she will not be

Minor Crimes, Massive Waste

able to provide clients with appropriate assistance. The National Advisory Commission on Criminal Justice Standards
and Goals set the following caseload limits for full-time public defenders: 150 felonies, 400 misdemeanors, 200 juvenile,
200 mental health, or 25 appeals.76 Established more than 20
years ago, these standards have withstood the test of time as
a barometer against which full-time indigent defender caseloads may be judged. Similarly, in 2007, the American Council of Chief Defenders (“ACCD”) issued a “Statement on
Caseloads and Workloads” recommending that defenders
handle no more than 400 misdemeanors per year.77

Despite these standards, across the country, lawyers who
are appointed to represent people charged with misdemeanors have caseloads so overwhelming that they literally have only minutes to prepare each case:

Caseloads should never surpass the maximum caseload
standards. In fact, there are a variety of reasons that caseloads should be lower than the standards propose. For example, the standards assume that the defender is a full-time
litigator. Accordingly, any administrative responsibilities
allocated to the defender should reduce the expected maximum caseload. Similarly, the caseload standards assume a
relatively close proximity between the defender and the
courthouse. Any significant distances that must be traveled
by the defender in the course of his or her work should reduce the expected caseload.
The caseload standards also assume appropriate levels of
support services. In other words, they assume that the attorney has access to secretarial assistance, paralegal assistance, basic workplace technology, legal research, and
investigatory services. For full-time defender offices, the
Bureau of Justice Assistance has opined that there should be
approximately one paralegal, one secretary, and one investigator for every four attorneys. Offices that do not maintain
the recommended ratios of support staff to attorneys must
reduce their workload expectations for attorneys.78 For
these reasons, the ACCD further recommended that each
jurisdiction review its situation and amend the standards as
necessary, noting that “the increased complexity of practice in many areas will require lower caseload ceilings.”79

During the webinar, the acting director of the office
reported that, in New Orleans, part-time defenders are
handling the equivalent of almost 19,000 cases per
year per attorney, which literally limits them to seven
minutes per case.
In at least three major cities, Chicago, Atlanta, and
Miami, defenders have more than 2,000 misdemeanor
cases each per year.80
According to a response to the survey, in Dallas,
Texas, misdemeanor defenders handle 1,200 cases per
year.
One attorney working in federal magistrate court in
Arizona reported in a survey response that misdemeanor attorneys there carry 1,000 cases per year.

21

In response to the survey, one Tennessee defender reported that the average misdemeanor caseload per attorney in his office was 1,500 per year. Two other
defenders in Tennessee reported handling 3,000 misdemeanor cases in one year, which is 7.5 times the national standards.
In Kentucky, the defenders were assigned an average
of 436 cases per lawyer in fiscal year 2007, of which
61 percent were misdemeanors.81 In other words, each
defender had 170 felonies, which is more than a full
caseload for one attorney, plus 266 misdemeanors,
which by itself is two-thirds of a full-time caseload
under the national standard.

Misdemeanor Caseloads By Jurisdiction
National Caseload Standard

400
2403

Chicago
Grant Co. , Washington

927
2232

Miami-Dade
Dallas

1200

Utah
New Orleans, Louisiana

The Terrible Toll of America’s Broken Misdemeanor Courts

2500
18,720
Problems

An attorney from Utah reported that misdemeanor
public defenders in that state carry caseloads of 2,500.
In Grant County, Washington, in 2006, the four defenders in county misdemeanor court averaged 927.25
cases each.82

6
Hours

The Meaning of the Caseload Numbers

22

A lawyer who takes three weeks of vacation and 10 holidays a year has 47 weeks available to work for clients. If
he or she never takes a day of sick leave and works 10
hours a day, five days a week,83 the attorney’s schedule
would allow about one hour and 10 minutes per case if
the lawyer had a caseload of 2,000 cases per year. A
lawyer with a caseload of 1,200 would have less than two
hours to spend on each case.
The time per case has to cover the client interview, talking with the prosecutor, reading police reports and other
relevant discovery, conducting legal research and factual
investigation, preparing for court, writing motions and
memoranda, including sentencing memoranda, and attending court hearings. There would be no allotted time
for training, reading new appellate cases, or attending
meetings at the courthouse or the local bar association related to misdemeanor practice.
A Kentucky columnist aptly summed up the crisis of excessive caseloads, stating: “The Sixth Amendment to the
U.S. Constitution guarantees the right to an attorney, not
the right to three hours of a grossly overloaded public defender’s time.”84

“I think there has been a sharpening
awareness of the ethical considerations for
public defenders. … Public defenders have
handled caseloads few private lawyers
would have ever thought of handling. Poor
people have a right to a lawyer who is just
as ethical as people of means do.”
— Ernie Lewis, former Public
Advocate, state of Kentucky.85

2

70

Hours

Minutes

7
Minutes

400
cases
per
year

1,200
cases
per
year

2,000
cases
per
year

19,000
cases
per
year

Approximate Time Per Case

Excessive Caseloads Put
Lawyers in Jeopardy
In most state ethical rules, as in the Model Rules of Professional Conduct, the very first substantive rule states, “A
lawyer shall provide competent representation to a client.
Competent representation requires the legal knowledge,
skill, thoroughness and preparation reasonably necessary
for the representation.”86 A number of ethical opinions
have concluded that if her caseload is threatening her ability to competently defend current clients, a public defender
must refuse to accept further cases. Additionally, if refusing future cases is insufficient, the public defender has a
duty to seek to withdraw from existing cases to ensure
competent representation for other defendants.
In 1990, the Arizona state bar issued an ethics opinion stating “when a Public Defender has made a factual determination that his or her Office cannot competently and
diligently represent the number of persons assigned to it,
the Public Defender must take action so that ‘A lawyer’s
workload should be controlled so that each matter can be
handled adequately.’”87 The opinion observed that this
“will require the Public Defender to seek to decline appointments or withdraw from appointments already made
until caseloads are manageable.”88

Minor Crimes, Massive Waste

A Public Defender Stands Up, and Faces Contempt89
n August 15, 2007, a young public defender in Portage County, Ohio, named Brian Jones was assigned to represent a defendant charged with misdemeanor assault. The case was set for trial the
following day.

O

Because of his caseload, the defender had to meet with six other clients the next day, before even looking at the defendant’s file. He then met with the defendant for twenty minutes.
When the case was called for trial, the defender explained to the judge that he would need a continuance
in order to prepare for trial. The judge responded that the defender could have the lunch hour to prepare.
The defender attempted to argue that he needed to speak with witnesses other than those the state had
subpoenaed, but the judge refused the postponement. When court reconvened, the defender argued
again that he should be permitted time to prepare, but the judge ordered the trial to commence.
The defender waived opening statement, informing the judge that he would not be able to participate in
the trial because he was not sufficiently prepared. The judge held the defender in contempt and ordered
him taken into custody. A hearing was later held on the contempt, and an ethics expert testified that the
defender would have been in violation of his ethical obligations had he agreed to proceed to trial unprepared. Despite this testimony, the judge upheld the contempt citation. In upholding the decision, the judge
noted that defenders plead cases and take cases to trial with minimal preparation all the time.90

23

The defender appealed, and the Court of Appeals reversed the conviction, stating:
Under these circumstances, effective assistance and ethical compliance were impossible
as appellant was not permitted sufficient time to conduct a satisfactory investigation as required by Disciplinary Rules 6-101 and 7-101 of the Code of Professional Responsibility,
Rule 1.1 of the Ohio Rules of Professional Conduct, and the Sixth Amendment of the United
States Constitution. It would have been unethical for appellant to proceed with trial as
any attempt at rendering effective assistance would have been futile. Appellant properly
refused to put his client’s constitutional rights at risk by proceeding to trial unprepared.91
More recently, the ABA issued a similar ethics opinion,
finding:
All lawyers, including public defenders
and other lawyers who, under court appointment or government contract, represent indigent persons charged with
criminal offenses, must provide competent and diligent representation. If
workload prevents a lawyer from providing competent and diligent representation to existing clients, she must
not accept new clients. If the clients are
being assigned through a court appointment system, the lawyer should request
that the court not make any new appointments. Once the lawyer is representing a client, the lawyer must move
to withdraw from representation if she
cannot provide competent and diligent
representation. …[L]awyer supervisors
must, working closely with the lawyers
they supervise, monitor the workload of
the supervised lawyers to ensure that
the workloads do not exceed a level that
may be competently handled by the individual lawyers.92

The ABA Opinion further concluded that if a supervisor fails to relieve an individual defender of an overwhelming caseload, the individual defender must pursue
the matter further, including seeking relief directly from
the court.93

“There can be no question that taking on
more work than an attorney can handle
adequately is a violation of a lawyer’s
ethical obligations. … No one seriously
questions that a lawyer’s staggering
caseloads can result in a breach of a
lawyer’s duty of competence.”
— Arizona Ethics Opinion 90-10.94

The Terrible Toll of America’s Broken Misdemeanor Courts

Problems

24

In a number of states, public defense attorneys have been
disciplined for violating ethical rules by handling excessive
caseloads and neglecting their clients. The California
Supreme Court, for example, suspended two defenders for
failures related to excessive caseloads. San Benito County
hired a contract defender to do the bulk of its public defense work. The contract provided that the contractor could
hire a subcontractor. The contract defender handled approximately 1,000 lower level cases per year, plus some
felony cases, while the subcontract lawyer hired by the contract defender handled approximately 250 felony cases.95
According to the bar discipline case against the supervisor,
the subcontract lawyer “did not provide adequate legal services and was frequently not adequately prepared for
court.”96 The contract defender was suspended for one year
for the failure to properly supervise the subcontract lawyer.
The subcontract lawyer was suspended for three years after
admitting that she conducted “no discovery, conducted virtually no investigation, failed to obtain the victim’s rap
sheet, filed no motions in limine, submitted no jury instructions and was unable to concentrate during the trial” of
a man who was charged with rape.97
Similarly, the Washington Supreme Court disbarred a former public defender from Grant County. The state bar disciplinary notice regarding disbarment cites as one of the
reasons for the disbarment the fact that the attorney was
“voluntarily maintaining an excessive caseload while one of
the lawyers under contract to provide indigent criminal defense in Grant County.”98 The hearing officer found that the
attorney’s “excessive caseload was prejudicial to the administration of justice.”99

Recommendations —
Excessive Caseloads
1.

All persons representing indigent defendants should be subject to caseload limits
that take into account the unique nature of
the jurisdiction and its misdemeanor practice and, under no circumstances, exceed
national standards.

Excessive caseloads dramatically diminish the effectiveness of representation. For this reason, as noted above, national legal practice standards and ethical guidelines
universally call for defender workload to be controlled. As
one Tennessee respondent to the survey stated, “a better
system would allow us to … have fewer clients, so we
could focus more and earlier on the needs of each client.”
A number of defender offices successfully set and maintain
caseload standards. The Defender Association in Seattle,
Washington, for example, maintains a caseload maximum
of 380 cases per year per attorney in the Seattle Municipal
Court. This limit is imposed both by city ordinance, which
the Defenders helped to draft, and by collective bargaining
agreement.100 Similarly, the King County District Court

lawyers have an annual ceiling of 450, and the county budgeting process is based on that number. The Defender Director noted that in the last several years her office has
managed to keep the district court caseloads lower than the
450 case credit ceiling.101
In Massachusetts, the Committee for Public Counsel Services uses assigned counsel to handle most of its misdemeanor cases. The lawyers are limited to 300 cases a year
and “[a]ny counsel who is appointed or assigned to represent indigents within the private counsel division is prohibited from accepting any new appointment or assignment
to represent indigents after he has billed 1,400 billable
hours during any fiscal year.”102
In Wisconsin, caseload limits for public defenders are set by
statute.103 The standards were, in part, based on a caseweighting study conducted in the early 1990s by The Spangenberg Group.104 The statute acts as a “safety-valve.”105
When caseloads reach the standards set forth in the statute,
the public defender can obtain relief, and overflow cases
are assigned to private counsel by the courts.

2.

When caseloads become burdensome, defenders, pursuant to their ethical obligations, should seek to discontinue
assignments and/or withdraw from cases
until the caseloads become manageable.

To avoid a breach of the attorney’s ethical duty, a defender
office or individual defender confronting an excessive caseload is obligated to move the court to cease appointment of
new cases and, if necessary, move to withdraw from existing cases.106 In the past few years, a number of public defender offices have successfully petitioned courts to reduce
their caseloads to prevent violations of the attorneys’ ethical obligations and ineffective assistance. These cases provide ample precedent for the duty of defenders to reduce
caseloads to prevent breaches of their ethical obligations.
In 2008, the public defender in Mohave County, Arizona,
won a motion to withdraw from a series of felony cases.107
The order granting the motion stated:
The evidence presented at the hearing
leaves the court with no doubt whatsoever
that the attorneys in the Public Defender’s
Office cannot continue representing the
Defendants in these cases in light of their
already existing caseload. … Requiring or
even allowing the Public Defender’s Office to remain as appointed counsel in
these cases would likely compromise
them from an ethical standpoint and deprive the Defendants in these cases of
their rights to effective representation.108
The Miami-Dade County Public Defender also recently
moved for appointment of other counsel in non-capital
felony cases because he did not have enough attorneys to

Minor Crimes, Massive Waste

represent the clients effectively.109 In granting the motion,
in part, the judge stated, “the evidence shows that the number of active cases is so high that the assistant public defenders are, at best, providing minimal competent
representation to the accused.”110 The court concludes, “the
testimonial, documentary and opinion evidence shows that
[the public defenders’] caseloads are excessive by any reasonable standard.”111 The state’s attorney immediately appealed the order, and the appeal is now pending before the
Third District Court of Appeals of the State of Florida.112
In California, public defenders have an established practice
of declaring that they are unavailable to take cases when
the caseload reaches whatever limit the office has set. The
origin of this practice is a 1970 court case, in which a California appellate court stated, “When a public defender reels
under a staggering workload … [he or she] should proceed
to place the situation before the judge, who upon a satisfactory showing can relieve him, and order the employment
of private counsel at public expense.”113

Why Are Misdemeanor
Caseloads So High?
The need to reduce caseloads to ensure that indigent defendants across the country receive competent representation is obvious. It therefore requires an examination of the
factors that lead to excessive caseloads.

Overcriminalization

One issue noted by both researchers and conference attendees concerning misdemeanor courts was the ardent
enforcement of crimes that were once simply deemed
undesirable behavior and punished by societal means or
a civil infraction punishable by a fine. Conferees gave
examples from around the country, including unleashed
pet laws, seatbelt laws, laws prohibiting people from
putting their feet on subway seats or lying down across
two subway car seats, and laws against riding bicycles
on the sidewalk.
The offense of sleeping in a cardboard box is criminalized in New York under the New York City Administrative Code § 16-122(b). It is punishable by a
fine of not less than $50 or more than $250, imprisonment for not more than 10 days, or both.114
It is also a crime in New York to occupy more than
one seat, sleep, or litter on a subway.115 Each of these
crimes is punishable by a fine of up to $25, imprisonment for not more than 10 days, or both.116

25

In Orlando, Florida, it is a crime to feed the homeless.117
A number of defenders noted that their dockets are clogged
with crimes that they do not think should be punishable by
jail, including underage possession of alcohol, turnstile

Lower Kittitas District Court Cases

41% Driving
with license
suspended

21%
Minor in
possession
of alcohol

38% Other

29 cases total on a single day
The Terrible Toll of America’s Broken Misdemeanor Courts

Problems

jumping, fish and game violations, driving with a suspended license, and pedestrian solicitation. In Tampa, the
site team observed defenders preparing to try a case for solicitation of alcohol, which involved an exotic dancer accused of improperly soliciting a patron to purchase an
alcoholic beverage.
On the day of the site visit to the Lower Kittitas District
Court in Washington, 29 cases were heard. Twelve were
driving with license suspended, third degree cases. Six were
minor in possession of alcohol cases. Another Washington
court, Lynnwood Municipal Court, has similar statistics. In
January 2008, 104 cases were assigned to the contract public defender. Of these, 36, or more than one-third, were
driving with suspended license, third degree, cases.

26

In fact, driving with a suspended license charges make up a
significant part of the caseload in many jurisdictions. Most
of these charges result from the failure to pay fines or fees,
such as tickets for a broken tail light or not having insurance, parking tickets, or even failure to pay child support. 118
Many defenders observed that criminalizing driving with a
suspended license is problematic because the charge usually
results from a license suspension for failure to pay fees or
fines. The charge thus frequently criminalizes the inability
of a defendant to pay, which creates an unbreakable cycle.
A North Carolina defender who handled 600 misdemeanor
cases last year noted in a survey response:
One of the most common charges is driving while license revoked. Since we have

no public transportation, it is unrealistic
to expect that people will not drive. Licenses are revoked for non-payment of
child support, failing to pay fines, and
failure to appear in court. Once a license
is revoked, any moving violation convictions suspend the license even longer,
which usually leads to more revoked
driving charges.
An NLADA report similarly observed that in Grand Traverse
County, Michigan, “approximately 10 percent of all cases are
for driving with a suspended license (DWSL). … The prosecutor also noted that DWLS needs to be addressed, that ‘it’s
an economic issue,’ and that most of the defendants have no
other criminal record.”119

Misdemeanor Indigent Defenders
Take Brunt of Budget Shortages

Experts have observed innumerable times that public defender offices across the country are underfunded.120 What
is essentially unreported is how this underfunding disparately impacts those accused of misdemeanors. Indigent
defenders facing budget shortages almost always prioritize
felony cases, to the detriment of persons accused of misdemeanors. It is simple triage. The funding is not there to
adequately staff both misdemeanor and felony cases. Indigent defenders scramble to provide the best defense to
those in the most dire need. Thus, they prioritize clients

Atlanta City Public Defender Office Caseloads
3,400
cases per
attorney

2
Hours and

2,400

15

cases per
attorney

Minutes

1,050

59

cases per
attorney

Minutes

42
Minutes

2007

2008

2009
(projected)

2007

2008

2009
(projected)

Minor Crimes, Massive Waste

who are at-risk for the lengthiest incarceration or death
sentences.
A Cook County defender reported that there is undoubtedly
a choice to prioritize serious felonies. The office has a specialty division for homicide cases in which caseloads are
closely controlled. The misdemeanor caseload, however, is
more than five times the national standard.
In Allegheny County, Pennsylvania, one lawyer observed
that a felony is more likely to go to trial than a misdemeanor. Another attorney in the office told a site team
member that, with as many cases as they have, they have
to set priorities, and they are going to be “more concerned
about the guy going up the river than one looking at probation.” A supervising defender in Missouri, whose 19
lawyers handled 3,487 cases in the past year, bluntly reported, “The clients who are cheated attorney time are
those with misdemeanors or lower-grade felonies.”121
When budgets are cut, misdemeanor public defense is often
among the first services to be adversely affected. In Atlanta,
for example, when the city faced a shortfall, among the first
cuts was the city court’s defender. The Atlanta City Public
Defender Office, which handles the low level city court
cases, was already overburdened. In 2007, the office had
20 lawyers who together represented clients in about 21,000
cases (1,050 cases per attorney).122 After budget cuts, the
director reported that in addition to having to lay off six
lawyers, four other attorneys had resigned, leaving her with
10 attorneys to handle an estimated 24,000 cases this year
(2,400 per attorney, or six times the national standards). According to press reports, additional cuts may require reduction to only seven attorneys. These cuts would bring
caseloads to over 3,400 per lawyer or more than eight times
the national standards. Each lawyer would have to handle
more than 13 cases each work day. The defender observed,
“It’s an unfortunate situation that because of the city’s
budget difficulties, we have to take our share.”123
Budget cuts also often lead to the increased use of flat-fee
contracts for public defense services. A flat-fee contract is
one in which a defender receives a fixed amount of money
to handle a percentage or all of the public defense cases in
a jurisdiction or court, or a defender is given a flat-fee per
case without limit on the number of cases the defender can
accept (or a limit that exceeds national standards).124 Recently, the use of flat-fee contracts for public defense services has expanded dramatically.125 A report in California
noted that “[c]ontract defenders are the primary provider of
indigent felony and misdemeanor representation in 24
counties (41 percent). … The amount of compensation afforded by these contracts is often based upon a fixed fee
per case or a flat-fee for the expected annual caseload.”126
Flat-fee contracts put enormous pressures on defenders,
particularly when the caseload rises above expected levels
and the defender does not have access to additional resources to handle the increase. The defender then is forced
to decide that some cases will receive little or no attention,
creating a conflict of interest.

Recommendations — Causes
Of Excessive Caseloads
1.

Offenses that do not involve a significant risk to public safety should be decriminalized.

As the Supreme Court observed in Argersinger, “[o]ne partial
solution to the problem of minor offenses may well be to remove them from the court system.”127 Many misdemeanor
crimes do not involve significant risks to public safety, yet
they result in high numbers of arrests, prosecutions, and people in jail. In fact, many do not involve any risk to public
safety. The criminal justice system would operate far more
efficiently if these crimes were downgraded to civil offenses.
The state of Hawaii has undertaken a comprehensive effort
“to make resolution of minor criminal offenses, including
traffic violations, as simple as possible for the average citizen and to ensure that police, prosecutor, and judicial resources are focused on the most serious criminal
offenses.”128 The legislature passed an act requiring the
Legislative Reference Bureau, a non-partisan governmental research institution, “to identify minor criminal offenses
for which typically only a fine is imposed and which may
be decriminalized without undermining the ability of government to enforce laws within its jurisdiction.”129 The Legislative Reference Bureau published the report entitled
“Decriminalization of Nonserious Offenses: A Plan of Action,” in January 2005.130

27

The report found that “numerous criminal offenses remain
on the books outside the Penal Code that are routinely disposed of by a fine but which, because they are technically
criminal, require at least one court appearance and all of
the time and expense that goes with it. Some of these are
traffic offenses but many are offenses that have become arcane, sometimes perceived as being irrelevant with the passage of time.”131
The report recommended identifying and considering for
decriminalization “those offenses that, despite the possibility of serious penalties, are routinely and consistently being
disposed of with fines.”132 In the 2008 legislative session,
the Hawaii legislature, following the recommendations of
the report, passed a law decriminalizing, among other
things, a number of agricultural and conservation-related
offenses, as well as transportation and boating offenses.133
The legislature also established a procedure for proposing
the decriminalization of other offenses in the future,134 and
it is expected that additional statutes will be reviewed in
coming legislative sessions.
Similarly, the Massachusetts legislature, in response to the
rising costs of indigent defense services, established a commission “to identify all violations of the general laws that are
currently classified as a misdemeanor,” determine how often
each such law is charged, and determine how the cases are resolved.135 Based upon this information, the commission is to

The Terrible Toll of America’s Broken Misdemeanor Courts

Problems

“determine the feasibility of classifying misdemeanor offenses as either ‘class A’ misdemeanors or ‘class B’ misdemeanors … [such that] ‘class B’ misdemeanors would be
criminal offenses deemed non-serious and warrant assessment of a civil fine with no possibility of incarceration.”136
Although the work of this commission has not yet begun, decriminalization efforts are proceeding in Massachusetts. By
general election ballot measure, the citizens of Massachusetts recently voted overwhelmingly to decriminalize possession of small quantities of marijuana. The punishment for
possession of less than one ounce of marijuana is now a fine
of up to $100 and forfeiture of the drug.137

28

In Lincoln, Nebraska, a formal assessment of the public defender office found the office was handling excessive caseloads and recommended that the city council undertake a
review of ordinances to re-evaluate appropriate punishment.138 Thereafter, the public defender proposed decriminalization of a number of misdemeanor offenses, including
dog leash and trespass offenses, to address rising caseload
and budget challenges.139
The state criminal codes are clogged with offenses that have
little to no impact on public safety, but are nonetheless punishable by imprisonment, triggering the full panoply of due
process rights. Such crimes include feeding the homeless, rid-

Revenue

King
County
Relicensing
Program
Benefits

$270,000

DWLS
Prosecutions

If it is determined that an offense should be switched from
a misdemeanor to a violation, it is critical to also review the
collateral consequences that can result from a conviction.
Often, the collateral consequences are worse for the defendant than the punishment for the offense. For a violation, a
defendant does not have access to a defender to instruct him
or her on the collateral consequences of a conviction. Under
these circumstances, to impose harsh collateral consequences, like housing limitations, deportation, and employment limitations would be fundamentally unfair.

2.

Diversion programs should be expanded.

Increasingly, diversion is seen as a practical alternative to
full criminal court prosecution of minor offenses. The
American Bar Association has urged “federal, state, territorial and local governments to develop, and to support and
fund prosecutors and others seeking to develop, deferred
adjudication/deferred sentencing/diversion options that
avoid a permanent conviction record for offenders who are
deemed appropriate for community supervision[.]”140
As noted above, driving offenses, particularly the offenses
equivalent to driving with a suspended license, make up an
extraordinary proportion of the misdemeanor caseloads in
many jurisdictions. For this reason, Miami-Dade County,
Florida began a diversion program called Drive Legal,
which permits an individual to pay down the fines that resulted in the suspension of his or her driver’s license over
time and/or through community service.141
Similarly, King County, Washington, has a diversion and
relicensing program. The creation of the program was a
combined effort of The Defender Association, the King
County prosecutor, the district court, and the county executive and county council. In the relicensing program, which
is available to individuals whose license has been suspended regardless of whether they have charges pending,
the person is given an opportunity to pay the underlying
fines that led to the suspension through community service
or work crew.142 If completed, the prosecutor dismisses the
pending charges.

24%
84%

ing a bicycle on the sidewalk, fish and game violations, and
public urination. Every state should undertake a systematic
review of misdemeanor offenses for the purpose of identifying offenses that can be decriminalized without substantially
impacting public safety.

1,330

In 2004, a consultant analyzed the program and concluded
that, in the first nine months of operation, there was an 84
percent reduction in prosecution filings in driving with a
suspended license cases and a 24 percent reduction in jail
costs, with 1,330 fewer jail days. In addition, the program
generated twice as much revenue than it cost, both in producing payments on tickets and in savings for prosecution
and defense as well as jail.143

Days
in jail

Spokane, Washington, recently re-instituted a relicensing
program. It had 340 graduates in the first three months of

Jail
Costs

Minor Crimes, Massive Waste

operation. The city prosecutor described the program in an
email as follows:
It helps all but the most violent offenders who have lost their driver’s license
for failure to pay tickets get into a structured repayment program in a non-collection agency status. Said another way,
we help people with a program that allows them to pay down the original debts
free of interest and collection fees. The
twist that really makes this work is that
we lift their license holds and allow them
to get their license BEFORE the debts
are paid in full.
Like the program in King County, an individual does not
have to have a pending charge to enter the program.144 The
potential impact of this program on the overall caseload is
significant, as the Spokane County public defender reported
that one-third of his misdemeanor cases are DWLS 3. The
state Office of Public Defense is funding a half-time position in the Defender office to assist clients to enter and complete the program.
The Sacramento public defender reported in an email that,
in addition to statutorily created diversion programs, they
have established others as the result of negotiations with
the district attorney’s office:

We have the standard drug diversion. …
If the counseling classes are completed[,] then the case is dismissed and
the client can report that he has never
been arrested or convicted of a drug offense. … We [also] have diversion for
theft, battery, vandalism, and other low
end misdemeanors.
These examples demonstrate that not only are diversion
programs successful, they also can be cost effective, and
provide benefits to the public. Indeed, the impact on the
defendant, the court system, the taxpayer, and the community can be profound.
Consider Lynnwood Municipal Court in Washington
State. As noted above, in January 2008, 104 cases were
assigned to the contract defender. Of these, 36, or 34.6
percent, were DWLS 3 cases. Eight were possession of
drug paraphernalia or marijuana. Pre-filing diversion of
those 48 cases would have reduced the defender caseload
by 46 percent, as well as drastically reducing the court
docket. Instead, according to the contract defender, most
defendants stipulate to the police report and are found
guilty. The court then gives them up to 90 days to address
the problem and return with a license. Less than half return, and often, the court issues warrants. This results in
new arrests, which the public defender and courts must
then handle.

29

Lynnwood, Washington
Misdemeanor Caseload January 2008

34.6%
Driving with license
suspended

57.4%
Other

8%
Possession of drug
paraphernalia or marijuana

The Terrible Toll of America’s Broken Misdemeanor Courts

Problems

3.

Funding for misdemeanor defense should
permit the maintenance of appropriate
caseloads.

To the extent misdemeanor offenses carry a possibility of
incarceration, the legislative body with responsibility for
funding the public defender program must appropriate
funds that permit defenders to maintain reasonable caseload limits. Funding should be based on estimates of the
number and types of cases the program is expected to handle in the upcoming year, with the expectation that each defender will have a caseload appropriate for the jurisdiction
while not exceeding national standards.145 In the event that
the caseload increases, the program should be permitted to
seek supplemental funds, or be permitted to stop accepting
cases in order to maintain appropriate caseloads.

30

A number of jurisdictions have been able to maintain caseload limits by tying funding to the number of cases to which
the public defender is assigned. As previously noted, in
Washington, the King County district court lawyers have
an annual caseload limit of 450 cases, and the county budgeting process is based on that number.146 In Colorado, the
limits are based on a comprehensive, jurisdiction-specific
case weighting study that occurred in the mid-1990s, which
has been periodically updated.147 “The Colorado legislature
has accepted the formula for purposes of both budgeting
and analyzing the fiscal impact of proposed legislation.”148

4.

Counties and states should discontinue the
use of flat-fee contracts as a means of providing indigent defense services.

The primary goal of flat-fee or fixed price contracting is
not quality representation but cost limitation. These contracts require an attorney to handle an undefined number of
cases for a fixed price, or establish a fixed price per case
and allow an attorney to accept an unlimited number of
cases. In both instances, flat-fee contracts encourage attorneys to process cases quickly. If an attorney gets to count
the case — and receive payment — once the case is arraigned, the attorney is motivated to dispose of the case as
quickly thereafter as possible to maximize profit. These
contracts discourage investigation, consultation of experts
or specialists, and taking cases to trial. Accordingly, flat-

“The ‘Rawhide’149 imagery [of cattle

fee contracts create a conflict of interest between attorney
and client, in violation of well-settled ethical proscriptions.150 Taking the lowest bidder in a flat-fee contract
process serves only to emphasize that the primary concern
is cost containment and not the constitutional obligation to
the defendants.151
Recently in Grant County, Washington, a defendant who
was wrongly convicted received a $3 million verdict after
a federal court jury found that his attorney’s representation
was inadequate.152 The attorney had a flat-fee contract to
handle indigent defense cases in the county and carried a
caseload of more than 500 felony cases a year. He refused
to hire an investigator or other experts, or to pay for a polygraph in the defendant’s case.153
In part because of the kind of conduct involved in this
case, the Washington Supreme Court, in September 2008,
amended the Rules of Professional Conduct regarding
conflicts of interest with current clients to specifically bar
flat-fee contracts where the contract requires the attorney
to pay for any conflict attorney, investigative costs, or expert fees out of the contract.154 The explanation of the new
rule stated:
An indigent defense contract by which
the contracting lawyer or law firm assumes the obligation to pay conflict
counsel from the proceeds of the contract, without further payment from the
governmental entity, creates an acute financial disincentive for the lawyer either
to investigate or declare the existence of
actual or potential conflicts of interest requiring the employment of conflict counsel. For this reason, such contracts
involve an inherent conflict between the
interests of the client and the personal interests of the lawyer. These dangers warrant a prohibition on making such an
agreement or accepting compensation for
the delivery of indigent defense services
from a lawyer that has done so.155
According to the press report following the verdict, as a result of the new ethics rule, “17 other rural Washington
counties began dumping their ‘flat-fee’ contracts with contractor public defenders.”

being herded] is perfect. If you turn
off the sound and watch Manhattan
Criminal Court, there is no way you
don’t think it is a cattle auction.”
— A veteran New York attorney.

Misdemeanor Defense
In Practice

The extraordinarily high caseload numbers in misdemeanor
practice inevitably require lawyers to cut corners. Site
teams witnessed and were told the same things across the
country: defenders do not have enough time to see their
clients or to prepare their cases adequately, there are no witness interviews or investigations, they cannot do the legal

Minor Crimes, Massive Waste

research required or prepare appropriate motions, and their
ability to take cases to trial is compromised.
In Allegheny County, Pennsylvania, for example, a lawyer
who had about six months of experience told a site team
member that generally the lawyers have reviewed the file
before coming to court for the preliminary hearing, and they
arrive early and talk to the officers and the prosecutor. Another lawyer explained that she will review the files for a
few minutes each the night before, then meet with the client
for about five minutes in court, negotiate a possible deal
with the police officer, and discuss the deal with her client.
One attorney described the process as a scramble, and another mentioned that with seven clients, seven officers, and
seven DAs in one morning, “[y]ou have to be on your toes
the whole session.”
A law professor recently spoke with a lawyer working in a
defender office with crippling caseloads, who “candidly reported that, prior to the increase in cases in her office, she
had conceived of her role as looking for the single issue that
would give her client a plausible argument to make in her
defense.” With case overload, the same lawyer “now looked
for the one issue that she could identify to convince her
client to resolve the case short of trial.”156
A respondent to the survey from Nassau County, New York,
admitted, “[m]ost interviews happen on court days in the
courthouse. Motions are filed but are discouraged by the
court and by the fiscal restraints.” The Spangenberg Group
report on indigent defense in New York157 also noted deficiencies in how misdemeanor cases are handled:
In the city court, one public defender reported an open caseload of 800 misdemeanors; she has so many clients that her
voice mail cannot hold all of their messages. Another reported 800-850 open
cases in the arraignment part in that
court. We were told that the city court
cases are “triaged” and not all are fully
investigated. The Monroe County Public
Defender described the situation to the
Commission as “outrageous.”158
Crippling caseloads make it all but impossible to take cases
to trial. As one supervising lawyer in Cook County, Illinois,
noted, her attorneys “do go to trial, but not as often as they
could if the numbers were lower. … [M]ost trials are bench
[trials] and only last a couple of hours.” A line defender in
Cook County confirmed her assessment, stating, “You can
try cases [but only] with severe triaging.” One of the
Chicago supervisors stated at the May 9 conference in New
York that most of the attorneys fresh out of law school want
to take cases to trial, but “they tend to get beaten down by
the system.”
One defender in Washington reported handling 900
cases in a year. Of those 900, he performed only eight
jury trials and one bench trial (a trial rate of 1 percent).

A Texas defender from a small city who reported having 100 misdemeanor cases and 300 felony cases last
year, reported, there are “only 1-2 misdemeanor trials
a year for the entire county.”
Across the country, over burdened defenders reported taking
approximately one in every hundred cases to trial or even
less. If a defender does take a case to trial, it cuts even further into the amount of time available for the remainder of
her cases. Even a trial that lasts a day or two severely affects
the lawyer’s ability to prepare the other cases.

Meet and Plead
In many jurisdictions, cases are resolved at the first court
hearing, with minimal or no preparation by the defense. Misdemeanor courtrooms often have so many cases on the
docket that an attorney has mere minutes to handle each case.
Because of the number of cases assigned to each defender,
“legal advice” often amounts to a hasty conversation in the
courtroom or hallway with the client. Frequently, this conversation begins with the defender informing the defendant
of a plea offer. When the defendant’s case is called, he or she
simply enters a guilty plea and is sentenced. No research of
the facts or the law is undertaken. This process is known as
meet-and-plead or plea at arraignment/first appearance.

31

“[C]lients are forced to make VERY
difficult decisions with very little
investigation or discussion … due to
the number of clients and the short
notice we have when appointed.”
— A Tennessee public defender.
According to Professor Adele Bernhard, “In 2000 in New
York City, assigned counsel lawyers handled 177,965 new
defendants in the Bronx and Manhattan. 124,177 of those
cases were disposed of at the first appearance — most by a
plea of guilty entered after no more than a 10-minute consultation with their lawyers.”159 Similarly, Professor Steven
Zeidman, who directs the defender clinic at the CUNY
School of Law, reported that “somewhere in the vicinity of
two-thirds of all misdemeanor cases are ‘disposed of’ at the
accused’s very first court appearance.”160
The Justice Department published a story about a rural
California county contract defender who assigned all misdemeanor cases to one associate.161 “She carried a caseload of between 250 and 300 cases per month. She was
expected to plead cases at the defendant’s first appearance

The Terrible Toll of America’s Broken Misdemeanor Courts

Problems

in court so she could move on to the next case.”162
The misdemeanor associate was fired for seeking
a continuance to address pretrial suppression issues in a case.163

New York City Misdemeanor
Guilty Pleas at First Appearance

Site team members observed similar pleas at arraignments in a municipal court in Lynnwood,
Washington. Two contract defenders advised as
many as 132 defendants on an arraignment calendar
in a three and a half hour period. Frequently, the defense lawyer was talking with other defendants in
the audience gallery while another of his clients was
at the podium talking to the judge.

32

Once in front of the judge, the total time from
presentation of charges to sentencing took about
five minutes. While some defendants opted for
continuances in order to meet with an attorney or
negotiate further with a prosecutor, many did not.
Instead, they stipulated to the admission of the police report, which resulted in a finding of guilt.
There was no colloquy regarding the rights being
waived — including the right to a jury trial and
the right to confront witnesses. The judge simply
proceeded to sentencing. One defendant appeared
and was sentenced to 10 days in jail and a $500
fine for marijuana possession in less time than it
takes to get a hamburger from a McDonald’s
drive-through window.

30%
Other

70%
Disposed
of at first
appearance

In Maricopa County, Arizona, one of the more experienced
defenders explained that, having advised a client and negotiated a guilty plea, defenders do not always go to court
with the clients for plea and sentencing because of the long
wait time in court. The defenders prepare the client, often
spending a couple of hours on preparation, but they rely
on the court to ensure that the plea and sentence is fair. By
way of explanation the defender noted that the judges “are
supposed to bring us in if there is a question.”
There is a growing body of evidence that suggests that innocent people frequently plead guilty. As early as the 1960s,
scholars observed the likelihood that pressures to plead were
resulting in innocent people pleading guilty.164 Innocent de-

fendants often plead guilty because the punishment offered
by the prosecutor in the plea agreement sufficiently outweighs the risk of greater punishment at trial.165 In the misdemeanor context, this pressure can be even more
compelling because the punishment in the plea offer, frequently time served or probation, appears minimal, and the
prospect of fighting the charge has not only the risk of more
substantial punishment, but also tremendous inconvenience,
including possible ongoing pretrial detention, missing additional days of work, and having to find alternate child care,
among others.166 Adding to this pressure is the demonstrable
fact that the assigned defense attorney has neither the time
nor the resources to adequately prepare a trial defense.

Denial of Bond/Inability to Make
Bail and the Pressure to Plead

“Most of the PDs do not have enough time
to do thorough investigations, meet with
the clients at length, research all of the
potential issues, and file all potential
motions specifically tailored to each case.”
— A Florida public defender.

At the New York conference held on misdemeanor courts,
attendees noted that the meet and plead situation is partially driven by defendants. In misdemeanor cases, the difference between pleading guilty at arraignment and further
investigation pending trial is often related to the defendant’s custodial status. A client will plead guilty at arraignment, even against counsel’s rigorous advice, because
it means he or she will be released that day or soon thereafter. A client will waive a compelling suppression motion
or a viable defense in order to avoid another day in custody, particularly when that time might affect her job or
the care of her children.

Minor Crimes, Massive Waste

A Phoenix defender observed during the site visit, “If you
can bond yourself out, your perception of our justice system
is completely different. … The system uses in-custody status
as a way to coerce pleas.” It was evident at the New York
conference that defenders, as well as clients, feel great pressure from the volume of in-custody clients who cannot make
bail. One survey respondent from New York wrote, “[b]ail is
set (so high) which forces us to give up on cases in order to
get the client out.” Another New York defender summed it up
perfectly, stating that it is hard to fight against the excessive
bonds and in-custody status. “Clients want to be home.”
A Philadelphia defender reported that they have a chronic
problem with homeless and/or poverty-stricken individuals who remain in custody on minor misdemeanor charges
such as public urination or disorderly conduct because they
cannot pay bail amounts as low as $100. When they finally
get an opportunity to appear in court, they all plead guilty
to time served, which by then is frequently longer than they
would have served if found guilty of the offense.
A veteran New York defender, in a survey response, noted
that the pressure to plead due to failure to make bail is often
greater on defendants of color. Judges often set bails equally
across defendants, but those bails are, in his experience,
harder for minority defendants to pay. “Black kids and to a
lesser extent Latino kids are held on bails that they are far
less likely to meet … A judge may hold … client A to a
$1000 bail and … client B to the same, but for A it is a
weekend in the city, for B it is two weeks salary or two
months of public assistance.”

Prosecutorial Pressure to Plead
Often, prosecutors put pressure on defendants to plead
guilty at the first court appearance by offering a more favorable plea bargain if, and only if, the client pleads guilty
that day. Time and time again, defenders reported getting
plea bargain offers just before the first hearing that would
allow the client to go home, if they accepted the plea that
day. Such plea offers place enormous pressure on the
clients, who, as noted above, want nothing more than to go
home. One blogger from Texas described an experience that
is consistent with the reports from around the country:
My First Job...was with the Wichita
County Public Defender. It did not prove
satisfactory for a few reasons. First of all,
the misdemeanor prosecutor would offer
time served and no fine to 90 percent of
my clients. The Sheriff had a policy of
giving 2 for 1 credit for time spent in jail.

Typically I would be assigned a defendant who had spent 21 days in jail. Defendant would be placed on the jail chain
and dragged into court. The DA would
offer 42 (21x2) days time served, with
fine and court costs paid for. The defen-

“A system of ‘meet’em, greet’em, and
plead’em’ … where overworked defense
attorneys actually don’t even meet clients
before disposition hearings — is a recipe
for wrongful convictions and a pervasive
lessening of respect for the rule of law.”
— Judge Joseph Bellacosa, New York.167

33

dant had a decision to make — Get out of
jail with no fine, or fight the case and
stay in jail. Hmmmmm..... Tough choice.
It was a no brainer for defendant’s [sic]
to accept the plea bargain. I spent most
of my time explaining plea papers and
guilty plea consequences.168
Similarly, a lawyer responded to a survey question concerning whether effective assistance is possible given the
caseload as follows:
It’s a complicated question. On regular
dockets, I think we do provide effective
counsel, but we have a “review docket,”
which is usually within 24 hours of arrest. On a review docket, there is a nonnegotiable offer from the DA that we
convey. We have no prior knowledge of
the case and do not have time to talk to
the defendant before getting offers from
the DA. We have a very, very short time
with each defendant. In my opinion, we
do not usually provide effective assistance on the review docket. You cannot
represent 30-40 people in a two-to threehour period effectively.

“There is no question a lot of those
folks are pleading guilty to get out.”
— A judge in the City of Phoenix court.

The Terrible Toll of America’s Broken Misdemeanor Courts

Problems

34

As this story demonstrates, plea bargains received just before the first hearing, which will expire just after the hearing, also place extraordinary pressure on defenders. They
must either stand up with the client as he or she accepts the
plea without knowing whether a factual or legal investigation would lead to a better result or convince the client to
allow further investigation even though it would require the
client to remain in jail and might not lead to a better result.

eral consequences for a particular defendant and then develop evidence to challenge any conditions precedent to the
consequence. For example, one of the most common types
of collateral consequence is a sentencing enhancement for
prior convictions, meaning the defendant will get a greater
penalty if she previously has been convicted of certain types
of crimes. To try to avoid the sentencing enhancement, the
defender must assess any past convictions the defendant
may have and develop an argument to challenge the applicability of the enhancement.

Impact of Increased Collateral
Consequences on
Misdemeanor Caseloads

Professor Zeidman observed that, with the rise of collateral
consequences, one should see trial rates increase, particularly
for low-level offenses, where the direct consequences of the
conviction are not as severe. “In these days of burgeoning
collateral consequences, when arrests and pleas can result in
deportation, eviction, loss of government benefits, mandatory DNA samples, etc., one would expect to see defense attorneys impelled to aggressively contest the legality of their
clients’ arrests.”169 In other words, the increase in collateral
consequences should increase not just the amount of research
and training needed by misdemeanor attorneys but also the
amount of in-court advocacy they are doing.

The secondary impact of a criminal conviction, particularly
a minor criminal conviction, has expanded significantly since
the caseload standards were created in the 1970s. As Seymour James of the New York Legal Aid Society observed at
the conference in New York, even a disorderly conduct conviction can result in harsh civil penalties, including losing eligibility for public housing, deportation, and suspension of
college student aid. As discussed in the introduction, a conviction for a misdemeanor can affect all aspects of life from
child custody arrangements to employment.
This vast array of collateral consequences has a dramatic
impact on the work of the defender: (1) it adds to the research and advocacy that must be done in each case, thus
decreasing the number of cases that a defender can effectively handle in any given period of time; (2) it changes the
cost-benefit analysis of accepting a plea bargain; and (3) it
places the client at greater risk of unforeseen harm if the
defender is too overburdened by his caseload to properly
advise the client of the impact of the decision to plead guilty
or proceed to trial. Additionally, defenders often cannot accurately advise their clients regarding future collateral consequences that might be imposed because there is no
uniform enforcement of collateral consequences.
As David Newhouse of the Spangenberg Group pointed out
in an email, “Even where misdemeanor caseloads may not
have increased over time, workload has due to collateral
consequences [and] enhanced sentences[.]” Defenders need
to spend considerable time researching the possible collat-

“A lot of the problems with the public
defense system are structural. We can’t
expect an attorney to function properly
with the caseloads they have.”
— Cory Stoughton, New York
Civil Liberties Union.

To the contrary, no person interviewed related an increase
in the number of trials conducted in misdemeanor courts as
a result of the expansion of collateral consequences. In fact,
the overwhelming evidence reveals that trials are nearly
non-existent in misdemeanor courtrooms.170
This lack of trial activity may be due to the fact that defenders, particularly those overburdened by excessive caseloads, do not have time to research the impact of collateral
consequences on their clients. At the New York conference,
many defenders acknowledged that they do not know the
range of collateral consequences in their jurisdictions. A
district attorney in attendance noted that prosecutors do not
know of all the consequences either. Attendees also stated
they believe most judges do not understand the collateral
consequences.

Early Disposition Projects
In response to overwhelming caseloads, a number of jurisdictions have established early disposition projects. Intended to assist clients by resolving cases quickly, these
projects have some very positive features, such as the integration of social service organizations into the adjudication
process. However, they also often require defenders to carry
overwhelming caseloads and frequently demonstrate how
the pressure to move cases quickly results in an assembly
line plea process.
In Pittsburgh, the site team observed the Allegheny County
Early Disposition Project. The project was intended to benefit clients by promoting coordination between the courts and
social service agencies to help clients get out of jail and resolve their cases earlier. One of the supervisors noted that the
program accepts cases with minimal or no trial issues and can

Minor Crimes, Massive Waste

resolve the case within a week, as opposed to four or five
months. He observed that the program’s efficiency provides
the defendant with more of a connection between the punishment and the behavior.
However, because of the emphasis on speed and the failure to
allocate sufficient resources to the project, defense lawyers
have defaulted to a meet and plead system. One assistant public defender reported that, in the first year of the Early Disposition Project (EDP), he represented defendants in 1,800
guilty pleas. He reported spending far less than one hour on
each client’s case. He stated that he spent 10 to 15 minutes
with the client, reviewing the allegations, the client’s version
of events, the prosecutor’s offer, and the likely sentence. The
EDP attorney estimated that about 100 of the 1,800 received
jail time, often concurrent with some other case.
The EDP attorney noted that it is impossible to meet clients
the day before the hearing. He also stated that he does not
receive the offers from the district attorney until the night
before the hearing. The office recently assigned him a legal
assistant, but not the additional attorney he felt was needed
“to make sure bases are covered and get a bit of a break
once in a while.”
The spectrum of cases resolved on the EDP calendar included possession of drugs, drunk driving, retail theft, and
prostitution. The defender reported typically doing no research or fact investigation, stating, “[t]hese are not situations that necessitate that.” But, one observer told a site
team member that the prosecutor sends some drug possession cases to EDP because they involve questionable arrests, which raises the possibility that if the facts and law
were investigated properly the court might conclude that
the cases should be dismissed. And, another defender reported that, contrary to the EDP attorney’s assertion, a DUI
case requires a lot of preparation.171
A different early disposition project in Washoe County
(Reno), Nevada, suffered from similar problems. The Early
Case Resolution (ECR) project was originally intended to
eliminate many non-serious cases from the court docket. The
program was examined by the Supreme Court Task Force on
the Elimination of Racial, Gender, and Economic Bias in
2000, which raised serious questions about whether the defendants in the program were receiving appropriate advice.
The Task Force Report suggested that defendants in the program felt coerced to accept pleas, whether or not they were
guilty of the crime charged. The report noted that public defenders routinely advised clients to plead, despite “not always hav[ing] the state’s discovery in the client’s file before
discussing the plea with him or her.” The report further observed that “one of the most notable effects of the ECR program is that the Washoe County Public Defender office takes
only approximately 30 cases to trial each year” out of approximately 6,300: a trial rate of less than half a percent.172
In January 2008, the Nevada Supreme Court issued an order
establishing performance standards for public defenders,
intended to ensure appropriate representation for all per-

“Clients feel like they are a cog
in a large wheel and attorneys
are unable to provide the
quality time they need.”
— An Oregon public defender.
sons charged with criminal offenses.173 Although the standards did not include formal caseload limits, they require
the defense lawyer to “make available sufficient time, resources, knowledge, and experience to afford competent
representation.”174 The standards go on to require counsel to
prepare for and conduct an initial client interview, which
must be held before any court proceeding.175

35

After the adoption of the performance standards, Washoe
County immediately suspended the ECR project, noting
that practices in the program may not comply with the performance standards.176

Effect of Excessive Caseloads
On the Clients

When caseloads are unmanageable and defenders are unfairly forced to skip steps, they render less than adequate
services. One-third of the respondents to the survey fully
acknowledged that the caseload of the public defense
lawyers in their jurisdiction does not allow them to provide
effective assistance of counsel. As one former Miami public defender recently noted, “[W]e don’t know our cases
through and through. The potential to make a mistake is
enormous.”177
The rush caused by excessive caseloads has a substantial
negative effect on the clients. One Miami defender, testifying tearfully at a hearing on a motion to obtain caseload relief, gave a compelling example of the harm caused to a
client. She stated that, stressed with 13 cases set for trial in
one week, “she failed to convey a prosecutor’s plea offer
to her client. As a result, the state revoked the offer of 364
days in county jail, and the defendant was stuck accepting
the state’s subsequent offer of five years in state prison.”178
One Oregon attorney summed up the client experience in
this scheme of excessive caseloads:
Clients feel like they are a cog in a large
wheel and attorneys are unable to provide
the quality time they need. Many of the
clients are first time offenders — they
need an attorney who will guide them
through the process in a respectful man-

The Terrible Toll of America’s Broken Misdemeanor Courts

Problems

ner and build a relationship of mutual trust
and understanding. The high caseloads
prevent this from happening.

Recommendations — Misdemeanor
Defense in Practice
1.

36

Guilty pleas should not be accepted at first
appearance unless the attorney has fully informed the defendant of the options, the potential defenses, the potential outcomes, the
consequences of foregoing further investigation and discovery, the possible sentences,
and the collateral consequences of conviction, and the defendant understands and
chooses to plead guilty. In addition to conducting a full and vigorous colloquy, judges
should require defense attorneys to aver, on
the record, that these steps have been taken.

Although the decision of whether or not to plead guilty resides squarely and exclusively with the defendant, the judge
has the obligation to ensure that a plea of guilty is entered
knowingly and voluntarily. A plea entered upon first appearance should be inherently suspect under this standard.
The defense attorney has the obligation to ensure that the
defendant has been fully informed of all options and risks,
including potential defenses, potential outcomes, sentences,
and collateral consequences. Accordingly, the defense attorney should be willing to state, on the record, that the defendant has received full and appropriate counseling in these
areas before the plea is accepted.
The plea colloquy performed prior to a guilty plea being accepted at first appearance should be more probing and vigorous. Judges should not merely ask the defendant to
confirm that they were fully informed of their options and
the consequences of the plea. They should ask open-ended,
probing questions that require the defendant to demonstrate

“The prompt disposition of criminal cases
is to be commended and encouraged.
But, in reaching that result, a defendant
… must not be stripped of his right to
have sufficient time to advise with
counsel and prepare his defense.
— U.S. Supreme Court, Powell v. Alabama,
287 U.S. 45 (1932).

an understanding of the information provided. For example,
the judge should ask what the defendant understands to be
the collateral consequences of the plea. Only after a defendant demonstrates some understanding and the defense attorney states that all options and consequences have been
fully explained should the judge proceed to allocution.

2.

The impact of bail and bond determinations
on the pressure to plead should be considered with regard to each defendant.

As the American Bar Association has declared, “The law
favors the release of defendants pending adjudication of
charges. Deprivation of liberty pending trial is harsh and
oppressive, subjects defendants to economic and psychological hardship, interferes with their ability to defend
themselves, and, in many instances, deprives their families
of support.”179 Accordingly, “[i]t should be presumed that
defendants are entitled to release on personal recognizance
on condition that they attend all required court proceedings
and they do not commit any criminal offense.”180 To justify
pretrial detention, a prosecutor must show substantial evidence that the defendant is a risk for non-appearance, or a
threat to the community or an individual.181
Under these standards, pretrial incarceration is usually inappropriate for alleged misdemeanants. The relatively
minor nature of the charges generally means that the defendant does not pose a risk to society if released. However, defendants accused of misdemeanor offenses are often
jailed pretrial. This frequently occurs because a judge sets
bail or bond to ensure that the defendant appears at a subsequent hearing, and the defendant cannot pay the amount
necessary to obtain release.
Factors considered in bail and bond determinations are
broad, ranging from seriousness of the pending charge, to
previous criminal convictions, to employment, to family
and the role the defendant plays in supporting a family, to
other ties to the community. Among the considerations that
judges should take into account when looking at bail and
bond is the coercive effect that the amount may have in
pressuring the defendant to plead guilty.182
For misdemeanor defendants, a recognizance bond should
be considered in every case. As Professor Zeidman observed,
defenders “have to attack the premise that someone pleading not guilty stays in jail, and the guilty person goes home.”
Cash or security bail and bond should be set only if there is
evidence of danger to the community or evidence of risk
failure to appear at the subsequent hearing. Then, the misdemeanor defendant should be questioned regarding
whether he or she can afford the bail or bond contemplated
before it is set. Even if a judge concludes that a misdemeanor defendant needs intensive supervision, the judge
should take steps to alleviate the pressure to plead that
might be created by pretrial incarceration, including granting work release during pretrial detention, and ensuring that
the detention is minimized through a speedy trial.

Minor Crimes, Massive Waste

Defenders should be permitted the time and resources necessary to gather information relevant to bail and bond determination, and present the information the court. Counsel
should insist that the court review whether probable cause
exists to believe that the defendant committed the alleged
crime. If probable cause does not exist, the defendant
should be released.

Section’s Standards on the Defense Function require defense
counsel to “conduct a prompt investigation of the circumstances of the case and explore all avenues leading to facts
relevant to the merits of the case and the penalty in the event
of conviction.”186 The standard specifically states that the
duty to investigate exists even if the defendant states that he
or she is guilty or expresses a desire to plead guilty.187

If, after learning of bail and bond, a defendant says that he
or she would like to plead guilty, the defendant should be
carefully questioned regarding motivations. Judges should
refuse to accept pleas if, after colloquy, it appears the defendant is pleading guilty for expediency and without a full
understanding of the potential consequences of the plea.

The only appropriate solution is to remove the necessity of
defense counsel making this Hobson’s choice. Prosecutorial offices should require early plea offers to be valid for a
period of days to permit the defense attorney to comply
with his or her obligation to fully assess the plea and make
a recommendation to the client.188

An example of a thoughtful approach to the court’s bail decision process is the Washington State court rule on release.183 The rule has a presumption of release on personal
recognizance. “If the court determines that the accused is
not likely to appear if released on personal recognizance,
the court shall impose the least restrictive of” a number of
conditions including restrictions on travel that the court
finds are likely to ensure appearance.184

Moreover, as the practice frequently places defenders in the
position of having to violate their performance obligations,
the use of time-limited plea offers should not be countenanced by judges or court administrators. Too often, judges
and administrators are tacitly complicit, if not actively encouraging, in the use of coercive tactics, like time-limited
plea offers, to resolve cases because it helps move dockets.
Such complicity has led to the overall prioritization of expediency above compliance with ethical and performance
standards, as well as justice. This must be reversed, and
prosecutors who do not engaged in one time only pleas
should be supported.

3.

Prosecutors should not utilize time limits
on plea bargains to coerce early pleas,
particularly when the time limit does not
permit defense counsel to fully assess the
appropriateness of the plea and advise
the client.

Often, particularly in misdemeanor court, a prosecutor arrives at a hearing and says to the defense attorney something like “If your client pleads today, I will recommend
time served, or probation, but she has to plead today.” The
defense attorney has a matter of hours, or sometimes minutes, to help the defendant make a decision. These timelimited plea offers serve only to coerce defendants to act
quickly, regardless of whether he or she is fully informed.
In essence, these plea offers present defense attorneys with
a Hobson’s choice. They can recommend against the plea
bargain because they cannot fully assess its appropriateness
for the client in the time allotted for decision-making, in
which case they run the risk of having lost a significant opportunity for a reduced sentence for the client. Alternatively, they can accept the plea without having done the
necessary investigation, and run the risk that they have encouraged a client to plead guilty who may have had a successful defense to the charge. Moreover, without time to
assess the possible collateral consequences, the attorney
cannot advise the client on the consequences of the choice
and may be foregoing an opportunity to negotiate a plea
that would have fewer consequences. Arguably, the defense
attorney may provide ineffective assistance regardless of
the choice he or she makes.
Additionally, foregoing an investigation in a case where one
might prove useful is a violation of national performance
standards, as well as the performance standards of many
states.185 The American Bar Association Criminal Justice

37

Once freed of the pressure of a time-limited plea, defenders can seek, when advisable, to convince defendants to permit them the time to adequately research, investigate and
assess the case, even if it means that they have to return to
court again. Professor Zeidman observed at the New York
conference that there are “very few clients who say ‘absolutely not’ when you ask for one adjournment.” Professor
Babe Howell agreed, stating “I can convince just about anyone to give me a change to fight for [his or her] case.” Convincing defendants to allow defenders to appropriately
investigate the case is significantly easier when the defendants know that, if the defenders assessment of the case
turns out poorly, the plea deal will still be available.

4.

When setting the caseload standards for a
jurisdiction, particular attention should be
paid to the collateral consequences of convictions in that jurisdiction and the time
needed by the defender to research, understand, and advise clients with regard to collateral consequences.

While caseloads should never exceed the national standards, there are a variety of jurisdiction-specific reasons
that caseloads should, in fact, be lower. If, for example, the
defender office serves defendants in two courthouses separated by 100 miles, the defender caseloads should be lowered to account for the travel time required. Similarly, if the
scheme of collateral consequences is particularly complicated in a jurisdiction, the defender caseload should be lowered to account for the amount of time a defense attorney
will have to spend researching the potential effects of a con-

The Terrible Toll of America’s Broken Misdemeanor Courts

Problems

viction for each defendant and advising the defendant on
these consequences. In a number of jurisdictions, collateral
consequences are not just located in the state criminal
statutes, but also in various administrative codes, as well as
county and city ordinances. Defense attorneys are often unfamiliar with these laws and the research to uncover potential consequences for the clients is, as a result, time
intensive. Finding them may require consulting with attorneys who specialize in areas in which collateral consequences arise, such as housing, immigration, employment,
and benefits. This time must factor into the number of cases
the defense attorney is assigned.

Despite the critical nature of these support services to
their work, in a number of jurisdictions, misdemeanor defenders do not have regular access to legal research, investigators, experts, or social workers. In Washington
State, for example:

There is nothing in the national standards that permits an exception to ethical obligations, performance standards, or the
national caseload standards for early disposition projects. To
the contrary, the Commentary to the ABA Ten Principles
states clearly: “Counsel’s workload … should never be so
large as to interfere with the rendering of quality representation or lead to the breach of ethical obligations. … National
caseload standards should in no event be exceeded.”189 While
efforts to assist defendants in accessing social services and
resolving cases quickly are to be applauded, they cannot
come at the expense of effective representation.

Another Washington defender who worked in four
counties noted that courts discourage the use of investigators. The lawyer reported using an investigator in only one case and an expert in only two.

5.

38

Early disposition projects should not be exempted from caseload limits.

“I get calls all day from lawyers who don’t
have time to punch up Lexis.”
— A supervising attorney in Chicago.

Misdemeanor Defenders Lack
Access to Support Services
To defend a client effectively, certain support services,
such as the access to computers and legal research to
prepare and file motions, are essential. Investigation
services and expert witnesses can help defense attorneys
to understand fully the facts of a case, and, depending
on the case, are critical to determining what occurred
and whether the defendant is properly charged. Social
workers can help assess mental health and addiction
needs, which can assist defenders in evaluating the intentions of their client as well as in advocating for diversion or probation.

In Lower Kittitas District Court, by contract the
court sets aside $5,000 per year for these services,
but nine months into the new contract, the court
was not aware of any requests for these funds.
Grant County contract defenders did not make any
requests for expert services in a two-year period in
which they handled 7,700 cases. In the same period, they made only five investigation requests.

An Oklahoma defender reported that the use of investigators required approval from state headquarters, but that it
is “[n]ot even worth asking.” And a supervising attorney
from Chicago said at the New York conference that, due
to excessive caseloads in Cook County, the public defenders “don’t have time to do research and investigation.
I get calls all day from lawyers who don’t have time to
punch up Lexis.”
Among the survey respondents, 11 percent did not have
investigation services available at all, and two percent
reported having investigation only if they paid for the
services out of their salary.
The lack of mental health evaluation assistance for misdemeanor defenders is particularly problematic. A significant percentage of misdemeanor defendants are
mentally ill and end up in jail because there are inadequate mental health services available.190 A Justice Department study found that in 2005, 64 percent of state
jail inmates had a mental health problem. Compounding
that, 49 percent of inmates in local jails were found to
have both a mental health problem and substance dependence or abuse.191
Despite the obvious utility of providing mental health
support services to assist defenders in identifying and
addressing clients’ mental health issues, 48 percent of
respondents reported no social work resources at all,
with two percent reporting that they could have social
work assistance, but only if they paid for it out of their
salary. An Oregon defender wrote that one of the greatest challenges in misdemeanor practice is “[c]lients with
mental health issues that are aggravated by being in the
system. There is no point to them being in the system for
such minor offenses when it just makes them worse.”

Minor Crimes, Massive Waste

Recommendations —
Lack of Support Services
1.

Misdemeanor defenders should have access
to legal research tools, investigative resources, and expert witnesses.

The ABA Criminal Justice Standards, Providing Defense
Services, provide that investigation, expert witness, and
other necessary services should be available for defenders:
The legal representation plan should provide for investigatory, expert, and other
services necessary to quality legal representation. These should include not only
those services and facilities needed for an
effective defense at trial but also those
that are required for effective defense participation in every phase of the process.192
To comply with this standard, every defender should have
access to legal research services, investigators, and experts.
If the defender has to pay for these services out of his or her
own pocket or contract amount, it creates a conflict of interest between lawyer and client. The lawyer may be motivated not to use investigators or experts to preserve funds
for himself, even when the case warrants the use of outside
services. To prevent this conflict of interest, the costs of
these services should not be borne by the defender. For contract defenders and appointed counsel, the administrators of
the program should have a separate fund to pay for services.

2.

Social workers or other mental health support services should work in tandem with
defenders to screen clients for mental
health issues.

Given the extraordinary number of defendants with mental
health issues, all defenders should receive training to assist
them in spotting possible mental health issues in their
clients and have access to social workers, counselors or
psychologists, specific to the defense, to evaluate clients
whenever appropriate. Like other expert services, the costs
of these consultations should not be borne by the defender.
Identifying mental health issues in defendants early may
help combat recidivism by identifying, and, ideally, obtaining treatment for, underlying causes of criminal behavior. Defenders should not have to rely on government social
workers to develop release or dispositional alternatives for
their clients.

Inexperienced Counsel
In Misdemeanor Courts
Many public defenders start in misdemeanor courts after
being hired right out of law school. They are handed a stack
of case files and told their courtroom assignment. No su-

“Many times I don’t have time to reflect
on what advice to give clients”
— A Tennessee public defender who
reported handling approximately
3,000 misdemeanor cases a year.

pervisor accompanies them and there is no training before
they begin. On their first day, they will talk to clients, negotiate plea deals, appear before a judge and, frequently,
advise clients to plead guilty.

39

Former Miami-Dade Chief Defender Bennett Brummer explained that his office is forced to hire attorneys straight from
law school with no trial and very little other experience “because we can’t pay a competitive salary … so we need to
train them.” That training is what Brummer described as “the
farm system.” Defenders start at the “little league” misdemeanor court before moving up to felony cases.193
One Washington attorney wrote that one of the greatest
challenges is the “learning curve.” The attorney added, “I
am a recent graduate and have been a misdemeanor attorney for 6 months. There’s a lot one needs to know to effectively counsel a client and to effectively advocate for them.
I feel that both the load itself and the fact that a lot of the
learning is concurrent with its practice is challenging and
very time intensive.”
Another defender observed, “Often misdemeanors is how
attorneys start their public defense practice and law school
does not do a good job at teaching the actual practice or
mechanics of law. I even took a public defense clinic where
I represented someone during my third year in district court
and there was a lot that was unfamiliar to me.”

Lack of Training
Appropriate training is critical to practice, regardless of
level. Misdemeanor practice, like felony practice, involves
trials. To be effective, lawyers must understand, among
other things, how to conduct a direct examination and a
cross-examination of a witness, how to navigate the rules of
evidence, how to give an opening and closing argument,
and how to authenticate evidence. Attorneys representing
clients in driving while intoxicated cases need to understand
the forensic evidence, such as how breath tests work, to be
able to assess whether there is an appropriate challenge to
the test, and how to bring it. And, in any number of crimes,
defenders need to understand police identification procedures and the science behind eyewitness identification in

The Terrible Toll of America’s Broken Misdemeanor Courts

Problems

order to understand the reliability of the evidence offered
against their clients. Attorneys also need to understand sentencing options, including, for example, what is involved
in domestic violence treatment, to be able to advise and advocate effectively for their clients.
Most of the survey respondents said that they have training
appropriate to their practice, and 76 percent said that they
have funding for it. Some defenders noted, however, that
training was superficial or minimal. For example, 31 percent had no training on immigration issues.

40

In some jurisdictions, training, particularly training relevant
for misdemeanor courts, remains elusive. One South Carolina attorney wrote that there was no training for misdemeanor practice, saying, “This area of training is completely
ignored by the state bar and the state indigent defense system[, although t]here are some private DUI seminars.”
In Allegheny County, Pennsylvania, the defender provides mentoring in the first few months, but within five
months attorneys are doing felonies as well as misdemeanors. One of the supervisors said that “within six
months our lawyers are seasoned.”

“[There are] simply too many cases
for inexperienced lawyers to provide
effective assistance.”
— A Colorado lawyer who stated that
the caseload of the local defenders did
not allow effective representation.

Lack of Supervision

As in other professions, before undertaking something independently, lawyers should be supervised. A homeowner
would not allow a plumber to remove the water heater if he
had never done it before and there was no experienced
plumber around to make sure he did it correctly. Supervision is critical to ensuring that attorneys just out of law
school, new to the jurisdiction, or just starting to practice
criminal law, do not make a mistake. For this reason, the
American Bar Association’s Ten Principles of a Public Defense Delivery System require defense counsel to be “supervised and systematically reviewed for quality and
efficiency.”
Supervision of misdemeanor defenders is sorely lacking, and, often, performance reviews are non-existent.
Many defenders report that supervision in their offices

is informal. One former Florida public defender noted
that, officially, there were two senior attorneys assigned
to supervise the approximately 30 misdemeanor attorneys in the office. However, the supervising attorneys
had active felony caseloads. If a misdemeanor lawyer
wanted assistance, he or she had to seek out a senior attorney and ask for assistance. She noted that, when one
did this, the attorneys were happy to help when they
could. When asked about a supervisor coming to court
with her, the defender said, “Occasionally you could get
a senior public defender to come with you if you needed
to pressure the prosecutor to offer a plea.”

Recommendations — Inexperienced
Counsel in Misdemeanor Courts
1.

Public defense attorneys should be required
to attend training on trial skills, substantive
and procedural laws of the jurisdiction, and
collateral consequences before representing clients in misdemeanor court. Thereafter, regular training on topics relevant to
the practice area should be required on an
ongoing basis.

Misdemeanor practice cannot itself be considered training. Defense attorneys must receive training prior to taking on misdemeanor cases. National standards require
that “defender organizations … provide training opportunities that insure the delivery of zealous and quality
representation to clients.”194
In an institutional defender office, the office should provide
an extensive training program that covers the practices and
procedures in the specific jurisdiction, as well as basic pretrial and trial skills, before the attorney is ever sent to a
courtroom alone. In assigned counsel and contract programs, trainings should be required before a defense attorney can join the misdemeanor assigned counsel list or
receive a contract.
A number of defender offices have exceptional training programs. In Philadelphia, for example, all new attorneys complete a three-week training program before ever
representing a client. Topics covered include substantive
law topics such as search and seizure law, drug statutes, the
sentencing scheme, identification law, procedural law topics including evidence, discovery and motions practice, and
trial advocacy skills such as interviewing techniques and
direct and cross-examination.195 After the training, a senior
lawyer goes to court with the new attorney for a week.
Thereafter, lawyers attend weekly training and consultation
sessions for the remainder of the first year.
Similarly, in Kentucky, the Department of Public Advocacy conducts three week-long training programs that all
attorneys who join the public advocate’s office must complete. For attorneys just graduating from law school, the

Minor Crimes, Massive Waste

first two weeks of the program occur shortly after they
enter the office. The training is intensive, interactive, and
limited to only 20 participants per session. In the first
week of training, the attorneys become familiar with all
aspects of misdemeanor practice by working through 32
common scenarios in district court. Each attorney researches and analyzes the legal issues, and then participates in mock events based on the scenarios, including
client and witness interviews, bond hearings, negotiations
sessions with the prosecutor, and motion arguments. The
second week is a trial skills institute, and the third week
covers a variety of relevant substantive and procedural
law topics. Additionally, the department holds several
other training events every year, including several on misdemeanor practice. A number of these trainings are held
through a distance learning module, which permits replay
of the training at a later date for defenders who could not
attend or for defenders who wish to watch a portion of the
training again.196
In Massachusetts, the Committee on Public Counsel Services hosts a variety of training events monthly, including
certification events, which an attorney must complete before being qualified to serve as appointed counsel.197 Similarly, the Public Defender Service in the District of
Columbia provides training not only for its own staff attorneys, but also for assigned counsel.198

2.

Public defenders and assigned counsel in
misdemeanor court should be actively supervised by experienced trial attorneys.

It is inevitable that defender programs will continue to utilize relatively inexperienced attorneys in misdemeanor
courts. For this reason, it is essential for misdemeanor defenders to have active supervision. Where possible, new attorneys should be partnered with experienced trial attorneys
in the same courtroom to provide ongoing supervision. To
achieve this, experienced attorneys should rotate back
through misdemeanor practice. Such rotations not only
serve to provide junior attorneys with supervision, but may
also benefit senior attorneys by combating burnout.

In court appointed counsel and contract programs, defenders should be regularly subject to review by an experienced
panel of defense attorneys who observe the defender in court,
review any complaints filed, and review defender files. In
New York’s First Department, a comprehensive application
is reviewed by a member of a Central Screening Committee
before the attorney can join the assigned counsel list. 199 The
screening committee also investigates client complaints, and
conducts recertification reviews.200

Lack of Standards

Performance standards serve to guide a defense attorney
through every step of litigating a criminal case. For example, national performance standards address preparing and
conducting the initial client interview, preparing for ar-

raignment, conducting investigations, obtaining discovery,
filing pretrial motions, negotiating with the prosecutor,
preparing for trial, conducting voir dire, making opening
statements, confronting the prosecution’s case, presenting
the defense case, making closing statements, drafting jury
instructions, and preparing post-trial motions.201
While each step need not be undertaken in every case, the
standards set out what steps should be considered by the
defense attorney, how the attorney should evaluate whether
the step is necessary, and, if the attorney decides the step
is necessary, how the attorney should proceed. As one set
of state standards notes, “These standards are intended to
serve as a guide for attorney performance in criminal cases
at the trial, appellate, and post-conviction level, and contain a set of considerations and recommendations to assist
counsel in providing competent representation for criminal
defendants.”202
Enacting performance standards establishes an expectation
about the thought process that will be used to evaluate the
case of each accused defendant. They also serve to synthesize the ethical obligations with the actual practice of public defense, and provide support for defenders when they
seek continuances or caseload reductions in order to ensure
that all clients receive adequate representation.

41

The absence of standards too often has the opposite effect
of confirming that there should be no expectations with regard to services. The lack of standards can lead to excessive
caseloads, inadequate compensation, and ineffective representation.
Nearly 70 percent of the survey respondents said that there
was no limit on caseload by standards in their jurisdiction.
Moreover, some of the respondents who noted an applicable
standard referred not to a standard in their jurisdiction, but to
the National Advisory Commission Criminal Justice Standards and Goals or NLADA recommendations. Sixty-three
percent said there was no limit by internal office policy.

Recommendations — Lack of Standards
1.

Jurisdictions should adopt practice standards applicable to all attorneys representing indigent defendants.

As noted above, standards establish an expectation that certain steps are considered with regard to every criminal case.
In so doing, they assure defendants, as well as the governmental bodies that fund the indigent defense system, that
each criminal case is evaluated appropriately, based upon its
particular facts and circumstances.

A number of jurisdictions have adopted performance standards:
The Washington Defender Association has comprehensive Standards for Public Defense Services, most

The Terrible Toll of America’s Broken Misdemeanor Courts

Problems

of which have been adopted by the Washington State
Bar Association. The standards address caseload, supervision, support services, training, evaluation, accountability, qualifications, client complaints,
compensation, and guidelines for awarding defense
contracts.203
In Massachusetts, which is primarily an appointed
counsel system, the Committee for Public Counsel
Services has adopted Performance Guidelines, which
apply to all representation of indigent persons in
criminal cases.204
The Nevada Supreme Court adopted comprehensive
performance standards earlier this year by order.205

42

The New York State Bar Association House of
Delegates adopted Standards for Providing Mandated Representation intended to “establish the
minimum requirements for a mandated representation system.”206

Public Defender
Salary vs. Debt

2.

Jurisdictions should have an active process
for enforcement of standards.

In addition to adopting standards, jurisdictions should have
a process for reviewing the performance of indigent defense
practitioners against the performance standards, as well as
receiving and addressing complaints from clients. As noted
above, not each step addressed in the performance standards
should be undertaken automatically in every case. “Steps actually taken must be tailored to the requirements of a particular case.”207 However, standards do provide a set of
guideposts for the evaluation of performance. For example,
when standards call for prompt client interviews, and a review of a defender shows that his or her practice is not to interview clients until the day before a preliminary
examination, that practice should be addressed. Similarly,
standards call for considering, in each case, the utility of a
variety of pretrial motions. If a defender or defender office
never files pretrial motions, that practice should be addressed.
A number of states have instituted formalized processes for
defender review, including receiving and addressing client
complaints. In both Louisiana and Virginia, legislators seeking further funding and reform of the state’s indigent defense system viewed the establishment of a
review program or compliance officer as
critical to ensure accountability and the wise
use of taxpayer dollars. In Virginia, the Virginia Indigent Defense Commission
(VIDC), which oversees all court-appointed
counsel and public defender offices in the
state, is responsible for enforcement of the
state’s performance standards. The VIDC
has a formal process for receiving and investigating complaints from clients, after
which a panel of VIDC staff attorneys holds
an informal hearing to try to achieve resolution of the complaint. If resolution cannot
be achieved at the informal hearing, the matter goes to formal hearing before three
members of the Virginia State Bar.208

Inadequate
Compensation
For Defenders in
Misdemeanor Courts

$45,000

$57,000

$88,000

Average
Salary

Public Law
School Debt

Private Law
School Debt

Senator Dick Durbin recently noted that
“the median starting salary for state and
local prosecutors and public defenders is approximately $45,000.”209 This may seem
like a decent salary, but, the average debt for
graduates of private law schools is nearly
$88,000, and the average debt for graduates
of public law schools is $57,000.210 And, by
comparison, the median starting salary at
law firms is $95,000.211

Minor Crimes, Massive Waste

Public defenders are often on the lower side of the median,
as they are frequently paid less than their colleagues in the
prosecutor’s office.212 More than two-thirds of survey respondents (81 of 121) report that their salaries are different
from the salaries of prosecutors. While a few report that
they are paid more than prosecutors, the bulk of respondents reported salaries that are between 10 percent and 50
percent lower than prosecutors. One Oregon defender reported that at the top of the scale, prosecutors make double
what defenders receive.
In the City of Phoenix, the contract attorneys are paid
$57,120 for a caseload of 270 per year, with the possibility
of an additional $5,000 in extraordinary compensation.
They do not receive any benefits. By contrast, the starting
salary for prosecutors is approximately $64,000. The prosecutors also have benefits, including retirement.
Having competitive salaries is essential to keeping experienced attorneys in the public defender office. One Illinois
defender noted, “Turnover in my office is quite high and
we’ve lost some great attorneys as a consequence.” The attorney reported that the bulk of the turnover is attorneys
leaving for higher salaries in private practice.
One Oregon defender wrote:
Pay needs to be increased to (at least)
parity with the state. We need to attract
and retain good, talented attorneys who
are dedicated to helping our clients. Public defenders shouldn’t have to choose
between paying their mortgage or paying
their student loans — a choice I make
every month.

“Public defenders shouldn’t have to
choose between paying their mortgage
or paying their student loans —
a choice I make every month.”
— An Oregon defender.

lawyers longer. He said that it is disheartening to come to
court every day and be the lowest paid person in the room.
It is noteworthy that the starting salary for deputy sheriffs
is $60,000, more than $20,000 greater than a public defender.214
In Miami-Dade County, Florida, the Chief Defender recently pointed out that for non-capital felony attorneys, the
starting salary of $42,000 is well below the median starting
salary of new lawyers in the region, and, in some instances,
half of the starting salary offered by non-state, governmental entities in the area.215
Inadequate compensation is also a problem for court-appointed counsel. As a Nassau County, New York, lawyer
wrote in a survey responses:
Attorneys need to be paid far better. I
cannot believe that a private lawyer gets
60 dollars an hour. That is not close to
what it costs just to keep an office open
in this neighborhood, forget make a living wage.

Another wrote:
After practicing for two years, I feel like
I’ve really become a good attorney. But,
now that I have a husband and baby to
support, I find it nearly impossible to continue as a public defender. It’s frustrating
to come out of law school with $150,000
in school debt and begin working a difficult job that barely pays the loan bills.
In Allegheny County, Pennsylvania, turnover among
lawyers is high, which many people attributed to the low
salaries. In July 2008, the Defender was advertising an attorney position with a maximum salary of $3,208.33 per
month, or $38,499.96 per year.213
One Allegheny defender reported that he takes home
$24,000 per year, and noted that a lot of the lawyers in the
office have second jobs. He said that he planned to get a
job waiting tables, which would allow him to make $500 a
weekend. Another attorney said that “what we’re paid is
barely enough to get by, let alone pay debt.” One of the supervisors stated that if they could pay more, they could keep

43

Recommendation —
Inadequate Compensation
1.

Misdemeanor public defense counsel
should receive fair compensation, including medical and retirement benefits.

Defenders should be compensated at a level that reflects the
importance of their work to the efficacy of the criminal justice system. A defender salary should be ample enough to
attract and retain qualified lawyers. Principle 8 of the ABA
Ten Principles of a Public Defense Delivery System states
that there must be “parity between defense counsel and the
prosecution with respect to resources.”216 The comment to
the principle notes that there “should be parity of workload,
salaries and other resources (such as benefits[)].”217 It further states that “assigned counsel should be paid a reasonable fee in addition to actual overhead and expenses.”218

The Terrible Toll of America’s Broken Misdemeanor Courts

Problems

Judicial Conduct in
Misdemeanor Courtrooms
Judges set the tone for what happens in the courtroom.
While not true of all judges, often in misdemeanor courts,
judges emphasize expediency over justice, to the detriment
of defendants and their attorneys. Some courts advise defendants of their right to counsel, but do not provide counsel at initial appearances. Others will encourage defendants
to talk with the prosecutor before obtaining a lawyer. Still
others permit counsel, but push docket movement so much
that defendants and their attorneys feel extraordinary pressure to enter guilty pleas.

44

One judge observed for this report told defendants that, despite defendants’ right to counsel, he would not appoint a
lawyer. Another judge, in the city of Phoenix, noted that by
convincing people to proceed without counsel, he can deal
with a lot of cases faster. He observed that without lawyers
on either side, “[o]n a good day, I can take 35 suspended license pleas.”
One veteran Massachusetts lawyer asserted that the greatest challenge to the misdemeanor practice is “[p]ressure
from courts to turn cases over quickly instead of preparing
the defense of them.” Similarly, an Oklahoma lawyer, responding to a question about recommendations for change,
wrote, “Teach judges that just because they are misdemeanors doesn’t mean they are not important. Judges here
convince defendants every day to go pro se and plead just
to speed up the process without regard for the consequences
to these peoples’ lives.”
One Oregon defender observed:
Many courts treat misdemeanors like
nuisances and fail to appreciate the complexity of the cases and the fact that both
the public defender and the client are
human beings, deserving of respect.
Comments from the bench (on the
record) make it clear that some judges
think all of these clients should just plead
out and do not deserve a trial.
In the ABA hearings, then chief criminal Judge Michael
Spearman from King County, Washington, said:

“[I]t’s easy for judges to let their
frustration get the best of them and look
for ways to move the calendar along.”
— Judge Michael Spearman,
King County, Washington.

In dealing with large calendars and pro
se defendants inexperienced with the law
and legal process, it’s easy for judges to
let their frustration get the best of them
and look for ways to move the calendar
along. There has been more than one
documented case in Washington where
judges have not fully advised defendants
of their right to counsel and to trial by
jury or have explicitly encouraged defendants to waive those rights in the
name of efficiency.

In 2006, the New York Times did an extensive investigation
of the town and village courts in New York State, which
handled more than 300,000 low-level criminal matters annually. Nearly three-fourths of the judges in those courts
were not lawyers. The investigation “found overwhelming
evidence that decade after decade and up to this day, people have often been denied fundamental legal rights. Defendants have been jailed illegally. Others have been
subjected to racial and sexual bigotry so explicit it seems to
come from some other place and time. People have been
denied the right to a trial, an impartial judge, and the presumption of innocence.”219

Disparate Treatment
Of Indigent Defendants

In many court systems, defendants represented by public
defense attorneys are treated more harshly than defendants
who have retained private counsel. In fact, more than twothirds of the survey respondents said that both the judges
and the prosecutors treat defenders and their clients differently than they treat the clients of retained attorneys.
One of the Tennessee respondents to the survey explained:
Courts hear private attorneys first and
give them more leeway in continuances.
Prosecutors give better offers to private
attorneys. There is definitely favoritism
towards college students and affluent defendants — there is a HUGE disparity in
offers between clients who have the
means to make bond and those who do
not. Many of the judges treat the privately represented clients with more respect. Judges tend to sentence clients
who are on bond to probation and clients
who have not been able to make bond to
more jail time.
Another Tennessee respondent confirmed:
Often times, judges will take retained
counsel cases earlier. … Judges and DAs
are often more respectful of private counsel, and more willing to believe that de-

Minor Crimes, Massive Waste

fendants who have hired counsel are
more deserving of a break. I think there
is often a presumption that PD clients are
lazy, good-for-nothings whose futures
are irrelevant to them.

“Judges here convince defendants
every day to go pro se and plead just

A Colorado lawyer, who was a defender and is now in private practice, responded in the survey: “Often [you] get better deals on private cases [because] prosecutors view clients
in a different light. Also, [the] PD does not generally have
resources for investigation and expert assistance as described above, so [they] cannot present as persuasive a negotiation to [the] prosecutor.”

Judges Face Discipline for Not
Honoring Right to Counsel

Judges can be disciplined for failing to protect the right to
counsel. Although it is not clear how often this occurs, because frequently the records are not public, the examples
below bring into stark relief the level of abuse that can
occur in misdemeanor courtrooms.
In recent years, a number of judges have been disciplined in Washington State for not meeting their obligations regarding counsel for the indigent. In one case
suspending a municipal court judge, the Washington
Supreme Court wrote:
People appearing pro se and without
legal training are the ones least able to
defend themselves against rude, intimidating, or incompetent judges. The conduct here denigrates the public view of
municipal courts as places of justice.220

The same judge was subsequently charged with misconduct, which again included consistently failing to advise
defendants that they have a right to counsel, requiring defendants who pleaded not guilty to waive their right to
counsel and to a jury trial, and failing to appoint counsel.
The judge stipulated to his ineligibility to hold office.221
In 2004, the Washington State Commission on Judicial
Conduct censured a district court judge for failing to observe defendants’ fundamental due process rights.222 After
a warning in 2002, the judge had continued to advise defendants improperly prior to requiring them to enter a plea.
She “routinely failed to advise unrepresented defendants
of various rights, including but not limited to: (i) the perils of proceeding without counsel, (ii) the right to remain
silent, and that anything the accused says may be used
against him or her.”223
The Commission noted, “Because the practices implicate
the constitutional rights of the defendants involved, the nature of the violations cannot be overstated.” The Commission added: “Protecting the rights of accused individuals is
one of the highest duties of any judicial officer. Respon-

to speed up the process without
regard for the consequences
to these peoples’ lives.”
— An Oklahoma defender.
dent’s failure to adequately perform that duty calls into
question the integrity of her office.”224
In 2006, following a new proceeding in the Commission,
the state Supreme Court suspended the judge for 30 days.225
Among the problems identified in the new complaint, the
judge, in many cases, advised criminal defendants of their
right to counsel after they entered a plea. In every case,
there was a waiver of counsel in the file. The commission
pointed out that the intent to plead was entered before a
waiver of attorney had been obtained. In addition, the judge
failed to reiterate adequately to defendants at probation review hearings that they have a right to counsel and failed
adequately to obtain waivers of counsel.

45

In 2006, an investigative report by the New York Times
found that 1,140 of the district justices in New York State
“received some sort of reprimand over the last three
decades — an average of about 40 a year, either privately
warned, publicly rebuked, or removed” by the Commission
on Judicial Conduct.226

Recommendations — Judicial
Conduct in Misdemeanor Cases
1.

All judges handling misdemeanor cases
should receive extensive training on the importance of criminal charges and the direct
and collateral impact of pleading guilty on
the defendant.

Judges should receive regular training on the effects of
criminal judgments on a defendant. Not only would such
training ensure that proper respect for the proceedings is
maintained, regardless of the level of charge faced by the
defendant, but it would also ensure that judges can verify
that defendants have received sufficient information regarding the consequences of a conviction before agreeing to
plead guilty.
Judges should be equally respectful of all defendants, regardless of their ability to pay for counsel, and of all attorneys, regardless of whether they represent the people or the

The Terrible Toll of America’s Broken Misdemeanor Courts

Problems

defendant, as well as whether they are being paid by the jurisdiction or the client.
The Code of Judicial Conduct requires that a judge “be patient, dignified, and courteous to litigants,” and that a judge
“perform judicial duties without bias or prejudice … including, but not limited to, bias or prejudice based upon
… socioeconomic status.”227 It is a central principle of the
American legal system that every individual is equal before the law. This principle is grossly undercut when
judges treat defendants who are represented by publicly
funded defense attorneys differently from defendants who
can afford private counsel. Judicial training should include
the importance of equal treatment for all defendants, and
attorneys who witness disparate treatment by judges
should report that treatment to presiding judges and other
authorities as appropriate.

46

2.

Judges should be disciplined for failing
to enforce the constitutional rights of
defendants.

Judges must refrain from pressuring indigent defendants
to waive counsel, and they must refuse to accept waivers
of counsel that are not entered into knowingly, voluntarily, and intelligently.228 A judge’s failure to honor the
basic rights of defendants constitutes judicial misconduct.229 Accordingly, disciplinary action should be pursued whenever a judge fails to enforce the constitutional
rights of a defendant.

“I do not believe that there is any relief in
sight and I am looking for another job.”
— A defender in a rural,
southern area.

Lawyer Burnout in
Misdemeanor Courts

The impact on defenders of excessive caseloads, lack of access to support services, supervisors or mentors, and a court
that is constantly applying pressure to move the docket can
be overwhelming both mentally and physically. One former public defender recalled the following:
I was a brand new appointed assistant PD
in a division that moved rapidly (rocket
docket). I remember on my third day in
the courtroom, the Judge, from the

bench, publicly screamed at me in front
of my clients something like, “You don’t
know what you are doing, let me plea
these clients.” Although there were two
defenders in the courtroom, we both had
an excessive amount of cases and could
barely handle our own. I ended up getting a serious … infection which landed
me in the ER. … For almost 6 months of
my life I could not get better.
A public defender in a county in central Washington State
reported that she works 10 hours a day, goes to the jail every
day to visit her clients, and is a firm believer in public defense. This lawyer, who serves part time as a pro tem judge
in another court, said that she was in “a burnout mode.” Before taking a couple days off in April, she had gone 17
months without a vacation.
One survey respondent wrote that the biggest challenge was
“staying motivated with little to no support, little guidance/supervision or feedback as to performance. Minimal
pay and benefits; lack of paralegals, resources (i.e., books,
etc.) and frequently being short staffed.”

Recommendation — Lawyer Burnout
1.

Defender programs should have an active
plan for combating attorney burnout.
It pays employers to address burnout as
soon as they see it because burnout has
tremendous economic cost for legal employers. … Burnout can result in absenteesism, job turnover, low productivity,
decreased job satisfaction, and reduced
commitment to the job. Burned out attorneys work a suboptimal pace and
produce work inferior to their capabilities. … Ultimately, the lawyer will quit
the work environment[.] 230

The costs of burnout in public defender offices, in lack of
efficiency and frequent turnover, accrue directly to the
taxpayers. And, the cost to clients can be high. For these
reasons, defender program administrators should be
proactive in combating burnout.
Every state bar association, and most local and county bar
associations, have a lawyers’ assistance program that can
help individual defenders, and often defender programs, to
combat burnout. The programs help lawyers combat a
number of the aspects of burnout including depression,
anxiety, stress, financial problems, work-life balance issues, as well as substance abuse, gambling, eating disorders, and other mental health issues. Lawyer assistance
programs are staffed by social workers and psychologists
who may be able to help defender administrators develop
programs to combat burnout. Additionally, every public

Minor Crimes, Massive Waste

defender, contract defender, and private attorney accepting
court appointments should be made aware of the lawyers’
assistance programs available in the jurisdiction.
Fair compensation, reasonable caseloads, adequate training, and provision of support services are necessary to recognizing the importance of the work and what is needed
to provide effective representation to clients. But, there
are also other things that are less dependent upon the
availability of funds that defender program administrators
can do to combat burnout. Recognition programs that
honor victories, promotions, and longevity in the office
are helpful in reducing burnout. Rotation of attorneys into
other areas of practice can also be helpful.
Attorneys choose public defense work because they believe in certain principles — the importance of protecting
constitutional rights and ensuring that only the guilty are
punished, for example. Regular events, even CLE or other
education events, at which these positive principles are celebrated and the unity of purpose is venerated will also help
to eliminate burnout. Several state defender organizations,
including those in California, Wisconsin, New York, and
Washington, have annual conferences that provide training for CLE credits, as well as offer inspiration and networking opportunities for defenders.

Disproportionate Effect
On Minority Communities

Hispanic Whites living in poverty was eight percent. By
comparison, the percentage of non-Hispanic Blacks living in poverty was 23 percent and the percentage of Hispanics living in poverty was 22 percent.232
Another reason people of color make up such a high percentage of the defendants utilizing public defense services is that minority communities are disproportionately
policed, so minorities are disproportionately arrested
and charged.
Eighty six percent of those stopped and searched in
New York City are black or Latino.233
A Florida lawyer responded to a racial disparity
question in the survey by stating: “It is quite obvious. Black people are … more likely to be arrested
and have charges filed.”
A Tennessee defender wrote: “Obviously, young
black men get arrested more often for drug charges.
Cops go into black neighborhoods and approach
folks asking if they have crack or pipes on them.”

47

A number of investigative reports have demonstrated
the enormous disparity in arrests in Seattle. African
Americans make up approximately eight percent of the
population of Seattle. Yet, a recent six-month study of
drug arrests showed that more than half of the people
arrested for drug crimes in Seattle were African American.234 Similarly, a recent report concluded that African
Americans in Seattle are also disproportionately arrested for obstruction, a misdemeanor often called “contempt of cop.” Indeed, “African Americans are arrested
solely for the crime of obstruction eight times as often
as whites when population is taken into account.”235

Criminal defendants of color are more likely to utilize
publicly funded defense services than white defendants.
For example, in Alabama in 2001, nearly 60 percent of
the defendants using the indigent defense system were
Black, despite the fact that African Americans only
make up 26 percent of the state’s population. 231 Although actual statistics are rare, public defenders across
the country report that their clients are almost entirely
Black or Hispanic. For example, in response to a survey
of public defenders conducted for this report, a Tennessee respondent wrote: “People arrested for and
charged with simple possession are by and large from
poor, minority communities.” Similarly, a New York
lawyer wrote: “Over 90 percent of the people arrested in
Brooklyn are Black or Hispanic.”

Because of the higher rates of minority poverty and the
higher rates at which minorities are arrested, public defenders and court-appointed counsel have a disproportionate number of minority clients. As a result, the
crisis in America’s public defense system has a much
more acute impact on communities of color. The dramatic under-funding and lack of oversight of America’s
indigent defense services, described at length above,
has placed people of color in a second class status in
the American criminal justice system.

In Lynnwood, Washington, during one of the site visits
for this report, four out of seven men (57 percent) on the
in-custody calendar were observably men of color. Lynnwood, Washington, is a city of about 35,000 people,
which, according to the 2000 census has a racial makeup
that is 74 percent White, 14 percent Asian, seven percent
Latino, three percent African American, and one percent
Native American.

Given the state of public defense services and the frequency with which those services are used by minority
defendants, it is not surprising that minority defendants
make up a disproportionate number of the wrongfully
convicted. In fact, 64 percent of the people who have
been wrongfully convicted of rape and then exonerated
through DNA are Black, even though African Americans
make up only 12 percent of the U.S. population.236

One reason African Americans and Latinos utilize indigent defense services more often is that they are more
likely to live in poverty. In 2002, the percentage of non-

The Terrible Toll of America’s Broken Misdemeanor Courts

Problems

Recommendations — Disproportionate
Impact on Minority Communities
1.

48

Defender offices should gather data regarding racial and ethnic disparities.

Most defender offices do not keep statistics on the race of
the clients assigned to them. Others collect the data haphazardly, through defender reporting based on appearance.
Systematic collection of racial and ethnic data can assist
jurisdictions to uncover disproportionate arrest trends, as
well as other incidents of racially disparate treatment in
the criminal justice system. For this reason, each institutional defender office, as well as each administration overseeing assigned counsel and contract defender programs,
should find a systematic way to ensure that such data is
collected from every defendant to whom a public defense
attorney is assigned.

2.

Defenders should make efforts to address
racial disparities in the criminal justice
system.

Once it is demonstrable, disparate treatment — or lack of
equality — is a powerful agent for reform. Too often, defenders observe racial disparity without seeking to address
it. For example, a New York attorney observed in response
to a survey question that there appears to be disparate application of bail guidelines. “Black kids and, to a lesser extent, Latino kids are held on bails that they are far less likely
to be able to make.” This is the type of practice that, if organized, a defender system can document and bring to the
attention of the judiciary.237

Some defenders have been enormously successful at addressing racial disparities in the criminal justice system,
including in the context of racial profiling, selective enforcement, and sentencing issues, as well as in amending
facially neutral programs that have a disparate impact on
minority communities. In New Jersey, defenders were
recognized for their groundbreaking work in challenging racially disparate police practices.238 The defenders
were instrumental in bringing a civil rights lawsuit that
brought to light the New Jersey state police practice of
racial profiling. Their work sparked a Department of Justice investigation, as well as other lawsuits, which together led to significant changes in law enforcement
practices in the state, as well as ongoing monitoring.
In Seattle, the Defender Association established a Racial
Disparity Project in 1999. 239 The project initially focused on helping people charged with driving with a
suspended license because of the disproportionate number of people of color facing this charge. It then helped
to obtain repeal of an ordinance requiring cars driven
by drivers with a suspended license to be impounded.
Since its formation, project staff have “participated in
many discussions with community based organizations,
courts and prosecutors, and local law enforcement authorities, and have participated in discussions with local
and state legislators on a variety of issues” related to
disproportionate treatment in the criminal justice system.240 The project was initially funded by a grant from
the Justice Department and has been maintained through
grants from private foundations.

T

CONCLUSION
his report demonstrates that the misdemeanor courts in America are in an alarming state of disrepair. The problems identified in this report significantly compromise the reliability of the
criminal justice system, and, in turn, the public confidence in courts. Worse, the assembly
line production of misdemeanor convictions is permanently disadvantaging huge swaths of the American public at incalculable societal cost. The recommendations in the report are intended to serve as
guideposts for judges, lawyers, and policymakers who must address these problems.
The problems of misdemeanor courts, and their solutions, are related and interdependent. It is unlikely
that the adoption of any one recommendation alone will solve a problem. But viewed holistically, the
recommendations, if adopted, will dramatically improve the functioning of misdemeanor courts, and
ensure that all defendants receive justice, regardless of the seriousness of the crime with which they
are charged, and regardless of socioeconomic, racial, or ethnic background.

Minor Crimes, Massive Waste

Endnotes
12.

1. Pew Center on the States, One in 31: The Long Reach of American Corrections, The Pew Charitable Trusts (March 2009), at

2. Chief Justice Jean Hoefer Toal of the Supreme Court of South Carolina, South Carolina Bar Association, 22nd Annual Criminal Law Update (January 26, 2007).
3. COLO. REV. STAT. § 16-7-301(4) (2008).
4. Abdon M. Pallasch, Call to Limit Cases Amuses Public Defenders, CHICAGO SUN TIMES, (July 24, 2006); Erik Eckholm, Citing
Workload, More Public Defenders Are Refusing Cases, N.Y. TIMES (Nov. 8, 2008) (noting Miami misdemeanor public defenders have
approximately 2,400 cases). Regarding Miami, according to documents filed in court, the defender office in Dade County had 21 misdemeanor attorneys in 2006-2007. By the 2006-2007 fiscal year, those attorneys handled 46,888 new cases (2,232 per attorney). By the
2007 calendar year, they handled 50,115 cases (2,386 per attorney).
5. The authors use the term “public defense” to cover any publicly funded defense service, whether provided by an institutional
public defender office with attorneys on salary, a contract defender, or private defense attorney accepting appointment from the court.
Similarly, we use the term public defense attorney to refer to all attorneys who accept public defense work, whether as part of a public
defender office, through a contract, or by appointment.
6. The questionnaire was distributed to defense attorneys. The goal was to learn what was happening in as many jurisdictions
around the country as possible. The goal was not to secure statistically accurate responses. Individuals who participated in the survey
were assured that their identities would be kept confidential. Full results, with the exception of identifying information, are available
upon request from Indigent Defense Counsel at the National Association of Criminal Defense Lawyers.
7. This project focuses on state courts and will not discuss either federal or tribal courts.
8. In some states, including Iowa, Massachusetts, North Carolina, Colorado, and Maryland, the sentence can be two years, or even
longer.
9. A recent New York Times article examining New York’s town and village courts, which are frequently presided over by nonlawyer judges, reported that 30 states continue to use non-lawyer judges. William Glaberson, In Tiny Courts of N.Y., Abuses of Law and
Power, N.Y. TIMES (Sept. 25, 2006), at A1.
10. National Center for State Courts, 2007 Criminal Caseloads Report at 45, available at http://www.ncsconline.org/D_Research/csp/2007_files/Examining percent20Final percent20- percent202007 percent20- percent207 percent20- percent20Criminal.pdf
(last visited Mar. 2, 2009).
11. Other experts have presented similar estimates. Testifying in Congress on June 25, 1997, Chief Judge George P. Kazen of the
U.S. District Court for the Southern District of Texas stated that in 1996 there were 9.4 million misdemeanors filed in state courts.
See Transcript, House Judiciary Committee Hearing (June 25, 2007), available at http://commdocs.house.gov/committees/judiciary/hju43386.000/hju43386_0f.htm (last visited Mar. 2, 2009).
12. The volume of misdemeanors in federal court is much lower than in state court, but it is growing. A recent federal court newsletter reported: “The Border Patrol has proposed filing 26,000 petty and misdemeanor offenses a year in the Tucson division at this time,
or 100 per work day added to the court’s normal daily docket. Ultimately, the goal of the Border Patrol is to prosecute an additional
700 defendants a week, or 36,000 new cases a year.” Federal Courts Hit Hard by Increased Law Enforcement on Border, THE THIRD
BRANCH (July 2008).
13. See, e.g., District of Columbia v. Clawans, 300 U.S. 617 (1937); Smith v. Illinois, 380 U.S. 129 (1968).
14. Duncan v. Louisiana, 391 U.S. 145 (1968); Baldwin v. New York, 399 U.S. 117 (1970). Some states provide for a jury trial in
all cases in which a jail sentence is possible. See, e.g., CAL. PEN. CODE § 689 (2008).
15. Gideon v. Wainwright, 372 U.S. 225, 244 (1963).
16. John M. Junker, The Right to Counsel in Misdemeanor Cases, 43 WASH. L. REV. 685, 685 (1968) (citations omitted).
17. Argersinger v. Hamlin, 407 U.S. 25 (1972).
18. Alabama v. Shelton, 535 U.S. 654 (2002).
19. Id. at 667 (quoting United States v. Cronic, 466 U.S. 648, 656 (1984)).
20. 407 U.S. at 33.
21. It is interesting to note that, at the time of the Argersinger decision, annual misdemeanor caseloads across the country were
estimated at between four and five million court cases, approximately half of the estimated annual caseload today. Id. at 34.
22. Id. at 34-35.
23. Id. at 38 (citations omitted).
24. “The term ‘collateral sanction’ means a legal penalty, disability or disadvantage, however denominated, that is imposed on a
person automatically upon that person’s conviction for a felony, misdemeanor or other offense, even if it is not included in the sentence.”
Collateral Sanctions and Discretionary Disqualification of Convicted Persons, American Bar Association Criminal Justice Section
Standards, Standard 19-1.1.
25. For a summary of New York law concerning criminal convictions and deportation, see Manuel Vargas, Immigration Consequences of New York Criminal Convictions, available at http://blogs.law.columbia.edu/4cs/immigration/ (last visited Mar. 16, 2009).
26. See Clyde Haberman, Ex-inmate Denied Chair (and Clippers), N.Y. TIMES (Feb. 25, 2003) at B1; Nora V. Demleitner, Preventing Internal Exile: The Need for Restrictions on Collateral Sentencing Consequences, 11 STAN. L. & POL’Y REV. 153, 156 (1999)

The Terrible Toll of America’s Broken Misdemeanor Courts

49

Endnotes

50

(noting that professional licenses for which ex-offenders can be ineligible “range from lawyer to bartender, from nurse to barber, from
plumber to beautician”).
27. See Editorial, Marijuana and College Aid, N.Y. TIMES (Nov. 2, 2007) at A26.
28. Most collateral consequences are established by state and local law, and thus the impact of a conviction varies widely by jurisdiction. There are a couple of guides that index the collateral consequences for specific jurisdictions. The New York State Unified
Court System, in conjunction with Columbia University, created a Web site that summarizes collateral consequences in New York
State. The Web site, Collateral Consequences of Criminal Charges – New York State, is hosted by Columbia University and is available at http://www2.law.columbia.edu/fourcs/ (last visited Mar. 16, 2009). The Washington Defender Association publishes a guide for
defenders entitled Beyond the Conviction, available at http://www.defensenet.org/publications.byond-conviction (last visited Mar. 2,
2009).
29. See Bridget McCormack, Economic Incarceration, WINDSOR Y.B. ACCESS TO JUST. 25, no. 2, 223-46 (2007).
30. See 18 U.S.C. § 3553(f); U.S.S.G. § 5C1.2.
31. See id.
32. William Hellerstein, The Importance of the Misdemeanor Case on Trial and Appeal, 28 THE LEGAL AID BRIEFCASE 151, 155
(April 1970).
33. Caroline Wolf Harlow, Defense Counsel in Criminal Cases, NCJ 179023 (Nov. 2000) at 6, Table 13. In federal court in fiscal
year 1998, 38.4 percent of people charged with misdemeanors did not have counsel. Id. at 3, Table 2.
34. The BJS study was only of in-custody defendants. Many misdemeanor defendants do not receive jail sentences, particularly
on the first conviction, so it is likely that the percentage is far higher. The ABA has also documented the widespread failure to provide counsel in misdemeanor cases. See American Bar Association Standing Committee on Legal Aid and Indigent Defense, Gideon’s
Broken Promise: America’s Continuing Quest for Equal Justice (Dec. 2004), at 22-23, available at http://www.abanet.org/legalservices/sclaid/defender/brokenpromise/ (last visited Mar. 16, 2009).
35. Chief Justice Jean Hoefer Toal of the Supreme Court of South Carolina, South Carolina Bar Association, 22nd Annual Criminal Law Update (January 26, 2007). Similarly, in North Dakota, judges appeared to be under the impression that if they sentenced the
defendant to jail time, but suspended that portion of the sentence, appointment of counsel was not required. This stands in direct contradiction to the Supreme Court’s holding in Alabama v. Shelton, 535 U.S. 654 (2002).
36. Texas Fair Defense Project Web site, http://www.fairdefense.org/about.php (last visited Mar. 16, 2009).
37. National Legal Aid and Defender Association, Evaluation, Report & Recommendations, Riverside County Public Defender
(Dec. 2000). Since the publication of the NLADA report, Riverside County has changed its practices.
38. Cait Clarke, Taking Alabama v. Shelton to Heart, THE CHAMPION (Jan/Feb 2003), at 25.
39. National Legal Aid and Defender Association, A Race to the Bottom: Speed and Savings Over Due Process: A Constitutional
Crisis (June 2008), at 15, available at http://www.mynlada.org/michigan/michigan_report.pdf (last visited Mar. 16, 2009).
40. Iowa v. Tovar, 541 U.S. 77, 91 (2004).
41. Faretta v. California, 422 U.S. 806, 835 (1975).
42. See, e.g., State v. Chavis, 644 P.2d 1202, 1205 (Wash. 1982) (citing Von Moltke v. Gilles, 332 U.S. 708 (1948)).
43. American Bar Association, Pleas of Guilty, Standard 14-1.3(a).
44. Brennan Center for Justice at NYU Law School, Eligible for Justice (2008), at 11, available at http://www.brennancenter.org/content/resource/eligible_for_justice (last visited Mar. 16, 2009).
45. Rule 3.160(e) states:
Defendant Not Represented by Counsel. Prior to arraignment of any person charged with the commission of a
crime, if he or she is not represented by counsel, the court shall advise the person of the right to counsel and, if he
or she is financially unable to obtain counsel, of the right to be assigned court-appointed counsel to represent him
or her at the arraignment and at all subsequent proceedings. The person shall execute an affidavit that he or she is
unable financially or otherwise to obtain counsel, and if the court shall determine the reason to be true, the court
shall appoint counsel to represent the person. If the defendant, however, understandingly waives representation by
counsel, he or she shall execute a written waiver of such representation, which shall be filed in the case. If counsel is appointed, a reasonable time shall be accorded to counsel before the defendant shall be required to plead to
the indictment or information on which he or she is to be arraigned or tried, or otherwise to proceed further.
46. Gideon, 372 U.S. at 340, 344.
47. See Eligible for Justice, supra. n. 44, at 7-8.
48. MODEL RULES OF PROFESSIONAL CONDUCT 4.3 (2004).
49. Id. at 3.8(b).
50. Id. at 3.8(c).
51. Rothgery v. Gillespie County, 128 S. Ct. 2578 (2008).
52. Argersinger, 407 U.S. at 40.
53. Id. at 34.
54. American Bar Association House of Delegates Resolution 107, adopted August 9, 2005, available at
http://www.abanet.org/legalservices/downloads/sclaid/indigentdefense/res107.pdf.

Minor Crimes, Massive Waste

55. ABA Criminal Justice Standards, Providing Defense Services, Standard 5-7.1 and Commentary:
Counsel should be provided to persons who are financially unable to obtain adequate representation without substantial hardship.
Counsel should not be denied because of a person’s ability to pay part of the cost of representation, because friends or relatives have
resources to retain counsel or because bond has been or can be posted.
56. See id.
57. See, .e.g, Rev. Code of Wash. 10.101.020 (2) (“In making the determination of indigency, the court shall also consider the anticipated length and complexity of the proceedings and the usual and customary charges of an attorney in the community for rendering
services, and any other circumstances presented to the court which are relevant to the issue of indigency. The appointment of counsel
shall not be denied to the person because the person’s friends or relatives, other than a spouse who was not the victim of any offense
or offenses allegedly committed by the person, have resources adequate to retain counsel, or because the person has posted or is capable of posting bail.”).
58. See generally Eligible for Justice, supra. n. 44.
59. Id. at 19.
60. Id. at 9. Prosecutors should also be prohibited from participating in the selection of defenders. The independence of the defense function cannot be maintained if the prosecutor, the adversary of the defender, has a role in selecting the defender. See American
Bar Association, Ten Principles of a Public Defense Delivery System (Feb. 2002), at Principle 1 and Commentary (noting the importance of the independence of the defense), available at http://www.abanet.org/legalservices/downloads/sclaid/indigentdefense/tenprinciplesbooklet.pdf (last visited Mar. 16, 2009). For this reason, an ethics opinion drafted by NACDL ethics counsel forbids a district
attorney from having any involvement in the operation or administration of the public defender’s office. See NACDL Ethics opinion
95-1, available upon request from NACDL.
61. American Bar Association Resolution 107, supra. n. 54.
62. Mary Sue Backus and Paul Marcus, The Right to Counsel in Criminal Cases, A National Crisis, 57 HASTINGS L.J. 1031, 1032
& 1035 (2006).
63. Application fees must be distinguished from reimbursement or recoupment. An application fee is a flat rate fee for use of publicly funded defense service that is assessed at the outset of the criminal proceeding, often before any representation is provided. Reimbursement or recoupment is generally charged at the conclusion of a representation and the amount of the charge generally represents
the cost of the particular representation or a portion thereof. ABA policy is to forbid the use of a reimbursement charge unless the defendant engaged in fraud to obtain the public defense services. See ABA Standards for Criminal Justice, Providing Defense Services,
Standard 5-7.2(a) (“Reimbursement of counsel or the organization or governmental unit providing counsel should not be required, except on the ground of fraud in obtaining the determination of eligibility.”).
64. S.C. CODE ANN. § 17-3-30 (2008).
65. See, e.g., Freehold Township Web site, http://www.twp.freehold.nj.us/departments/Municipal-Court/public-defender.asp; For
a summary of statewide fee programs, see also The Spangenberg Group, Public Defender Application Fees: 2001 Update (2001), available at http://www.abanet.org/legalservices/downloads/sclaid/indigentdefense/pdapplicationfees2001-narrative.pdf.
66. ABA Standing Committee on Legal Aid and Indigent Defense, Report to Board of Governors in Support of Adoption of Guidelines (Aug. 2004), at 5, available at http://www.abanet.org/legalservices/downloads/sclaid/indigentdefense/rec110.pdf.
67. Powell v. Alabama, 287 U.S. 45, 68-69 (1932); see also Johnson v. Zerbst, 304 U.S. 458, 462-63 (1938) (“[T]he obvious truth
[is] that the average defendant does not have the professional legal skills to protect himself.”); Argersinger, 407 U.S. at 32 n.3 (“That
which is simple, orderly and necessary to the lawyer – to the untrained laymen – may appear intricate, complex and mysterious.”).
68. See Misdemeanor Defense in Practice, infra. notes 156-168 and accompanying text.
69. It is for this reason that ABA standards require an attorney to investigate a case before the defendant enters a guilty plea. See
ABA Criminal Justice Section, Standards on the Defense Function, § 4-4.1, available at http://www.abanet.org/crimjust/standards/dfunc_blk.html#4.1 (last visited Mar. 2, 2009):

51

Standard 4-4.1 Duty to Investigate: Defense counsel should conduct a prompt investigation of the circumstances
of the case and explore all avenues leading to facts relevant to the merits of the case and the penalty in the event of
conviction. The investigation should include efforts to secure information in the possession of the prosecution and
law enforcement authorities. The duty to investigate exists regardless of the accused’s admissions or statements to
defense counsel of facts constituting guilt or the accused’s stated desire to plead guilty.
70. State v. Tenin, 674 N.W.2d 403, 410-11 (Minn. 2004).
71. State v. Jolicoeur, 327 N.J. Super Ct. 91, 95-96 (N.J. Super. Ct. 1999). By contrast, an application fee that is subject to waiver
for inability to pay has been upheld. See Stephen Cameron v. Justice of the Taunton District Court, Slip Op. (Supreme Judicial Court
for Suffolk County, June 5, 1992).
72. See, e.g., OHIO ADMIN. CODE § 120-1-03(B)(2) (“Applicants with an income over 187.5 percent of the federal poverty level
shall be deemed not indigent.”). Federal poverty level for a single person in the lower 48 states and the District of Columbia is $10,400.
See Federal Register, Vol. 73, No. 15 (Jan. 23, 2008), at 3971-72. Accordingly, an individual making greater than $19,500 per year is
ineligible for public defense services in Ohio, regardless of the charge they are facing. For recommendations on how indigent defense
eligibility guidelines should be structured, see Eligible for Justice, supra. n. 44.

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Endnotes

52

73. ABA, Guidelines on Contribution Fees for Costs of Counsel in Criminal Cases, Guideline 2, available at
http://www.abanet.org/legalservices/downloads/sclaid/indigentdefense/rec110.pdf (last visited Mar. 2, 2009).
74. Id. at Guideline 6.
75. Id.
76. A number of states also have established caseload standards. See U.S. Department of Justice, Office of Justice Programs,
Bureau of Justice Assistance, Keeping Defender Workloads Manageable (Jan. 2001), available at http://www.ncjrs.org/pdffiles1/bja/185632.pdf (last visited Mar. 2, 2009).
77. Statement available at http://www.nlada.org/DMS/Documents/1189179200.71/EDITEDFINALVERSIONACCDCASELOADSTATEMENTsept6.pdf (last visited Mar. 2, 2009).
78. See Keeping Defender Workloads Manageable, supra, n. 76, at 10.
79. See ACCD Statement, supra. n. 76.
80. Abdon M. Pallasch, Call to Limit Cases Amuses Public Defenders, CHI. SUN TIMES (July 24, 2006), at 18; Erik Eckholm, Citing Workload Public Lawyers Reject New Cases, N.Y. TIMES (Nov. 8, 2008), at A1 (noting Miami misdemeanor public defenders have
approximately 2,400 cases). Regarding Miami, according to documents filed in court, the defender office in Dade County had 21 misdemeanor attorneys in 2006-07. By the 2006-07 fiscal year, those attorneys handled 46,888 new cases (2,232 per attorney). By the
2007 calendar year, they handled 50,115 cases (2,386 per attorney).
81. Kentucky Department of Public Advocate, Realizing Justice, Defender Caseload Report Fiscal Year 2007, at 5, available at
http://apps.dpa.ky.gov/library/DefenderCaseloadReport07.pdf (last visited Mar. 2, 2009).
82. Grant County’s public defense services have been under the supervision of the court system following the settlement of a lawsuit alleging systemic deficiencies in felony representation. The caseload information is derived from monthly reports to the county commissioners by the attorney who supervises the defense contractors pursuant to the settlement. Reports were made available through a
public disclosure request.
83. This schedule would require working more than 2,300 hours per year, far in excess of even the billable hours required by large
civil defense law firms in most major cities. National Association for Law Placement, Billable Hours Requirements at Law Firms,
NALP BULLETIN (May 2006) (“Although billable hour requirements ranged from 1,400 to 2,400 hours per year in 2004, most offices
reporting a minimum require either 1,800 or 1,900 hours (24 percent and 21 percent of offices, respectively).”). The Washington Defender Association standards recommend 1,650 billable hours per year. See Washington Defender Association, Standards for Public Defense Services, Standard Three, Commentary. The Office of Management and Budget (OMB) has advised agencies that of the 2,088
hours attributable on an annual basis to a federal employee, each employee works only 1,744 hours per year, which reflects hours
worked after the average amount of annual, sick, holiday, and administrative leave used. Performance of Commercial Activities, OMB
Cir. No. A-76 (Revised) (Aug. 1983), at p. IV-8.
84. Opinion, It’s a Fiction that Secrecy Is Good in Dealing with Kids, THE COURIER-JOURNAL (July 16, 2008).
85. Brandon Ortiz, Public Defenders Sue State Over Funding, LEXINGTON HERALD-LEADER (July 1, 2008).
86. MODEL RULES OF PROFESSIONAL CONDUCT, Rule 1.1; see also ARIZ. ETHICAL RULE, Rule 1.1.; ARK. DISCIPLINARY RULES OF PROFESSIONAL CONDUCT, Rule 1.1.
87. Ariz. Ethics Op. 90-10 (1990), at 6, available at http://www.myazbar.org/ethics/pdf/90-10.pdf.
88. Id. at 8.
89. Unless specifically cited, facts for this story were taken from the Ohio Court of Appeals decision. Ohio v. Jones, Case No. 2008P-0018 (Ohio Ct. App. Dec. 31, 2008), available at http://www.sconet.state.oh.us/rod/docs/pdf/11/2008/2008-ohio-6994.pdf (last visited Mar. 16, 2009).
90. Milan Simonich, Contempt Upheld for Ohio Public Defender, PITTSBURGH POST-GAZETTE (Aug. 25, 2007).
91. Ohio v. Jones, supra. n. 89.
92. ABA Ethics Op. 06-441, available at http://www.abanet.org/cpr/pubs/ethicopinions.html#06441 (last visited Mar. 2, 2009). The
American Council of Chief Defenders came to a similar conclusion in 2003:
A chief executive of an agency providing public defense services is ethically prohibited from accepting a number
of cases which exceeds the capacity of the agency’s attorneys to provide competent, quality representation in every
case. The elements of such representation encompass those prescribed in national performance standards including the NLADA Performance Guidelines for Criminal Defense Representation and the ABA Defense Function
Standards. When confronted with a prospective overloading of cases or reductions in funding or staffing which will
cause the agency’s attorneys to exceed such capacity, the chief executive of a public defense agency is ethically required to refuse appointment to any and all such excess cases.
ACCD Ethics Opinion 03-01 (2003), available at http://www.nlada.org/DMS/Documents/1082573112.32/ACCD%20Ethics%20opinion%20on%20Workloads.pdf (last visited Mar. 16, 2009).
93. See id. at 6.
94. Ariz. Ethics Op. 90-10, supra. n. 87.
95. In re Matter of Robert Pinto Public Defender San Benito County (Cal. State Bar Court Case No. 93-O-10027).
96. Id.

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97. Attorney Discipline, CAL. BAR J. (Feb. 1996), available at http://calbar.ca.gov/calbar/2cbj/96feb/2cbj29.htm (last visited Mar.
2, 2009).
98. Washington State Bar Association, Discipline Notice for Thomas Jay Earl, available at http://pro.wsba.org/PublicView-Discipline.asp?Usr_Discipline_ID=594 (last visited Mar. 14, 2009). Mr. Earl abandoned his appeal, so there is no Supreme Court opinion.
99. Id.
100. See City of Seattle Ordinance 121501 (June 14, 2004).
101. Even though the 380 level is one of the lowest in the country, some defenders feel it still is too high. A lawyer from one of
the other King County defender offices noted that the 380 caseload standard did not allow effective representation, and stated in her
survey response: “The caseload standard is too high, and it results in us very often not being able to do as much for each client as we’d
like to do.” She added that the greatest challenge in the practice is “doing justice to each case when there is such an overwhelming caseload.”
102. MASS. GEN. LAWS ANN., Ch. 211D, §11 (2008).
103. WIS. STAT. ANN. § 977.08(bn) (2008).
104. See Keeping Public Defender Caseloads Manageable, supra, n. 76. at 13-14.
105. Id. at 14.
106. See, e.g., ABA Ethics Opinion 06-411, supra. n. 92; ACCD Ethics Opinion 03-01, supra. n. 92.
107. See Jim Seckler, Judge Allows Public Defender to Withdraw from 39 Felony Cases, MOHAVE DAILY NEWS (Dec. 18, 2007).
108. A copy of this order is available in the online appendix at www.nacdl.org/misdemeanor.
109. See Pleadings, available at http://www.pdmiami.com/ExcessiveWorkload/Excessive_Workload_Pleadings.htm (last visited
Mar. 2, 2009).
110. See Order Granting in Part and Denying in Part Public Defender’s Motion to Appoint Other Counsel in Unappointed Noncapital Felony Cases, Circuit Court of Eleventh Judicial Circuit, Miami-Dade County Florida (Sept. 3, 2008), at 4, available at
http://www.pdmiami.com/Order_on_motion_to_appoint_other_counsel.pdf (last visited Mar. 2, 2009).
111. Id. at 6.
112. Other offices have motions pending. Beginning in 2007, the Knoxville, Tennessee, public defender asked the court to cease
appointing his office to any further misdemeanor cases so that he could reassign attorneys to handle a large backlog of felony cases.
See Jamie Satterfield, Public Defender Battles Load, KNOXVILLE NEWS SENTINEL (July 19, 2007). The battle has continued for more
than a year, with the state attorney general and court administrator’s office opposing the effort. See Jamie Satterfield, Staffing Again an
Issue for Defender, KNOXVILLE NEWS SENTINEL (June 30, 2008). In 2007, the defenders office had 22 attorneys handling a caseload of
approximately 12,500 per year (or 568 cases per attorney). See Caseload Data 2007, Knoxville County Public Defender Office, available at http://www.pdknox.org/800main.htm (last visited Mar. 2, 2009). Assuming the caseload was exclusively misdemeanors, the caseloads would have been approximately one and a half times national standards. In actuality it was much worse. Almost one-fourth of
the caseload was felony cases. See id.
A misdemeanor public defender in the office filed an affidavit in connection with the motion that stated:

53

In misdemeanor court, my caseload assignment is determined by the docket on the particular day I am in court. …
I do not personally count the number of cases I have on a given day. Over the course of the last few years, I have
been in court representing as few as 8 and as many as 50 defendants on a given day. Some defendants have only
one charge, others have multiple charges. … [A]ccording to [our computer case counting system] between January 7, 2008, and February 6, 2008, I closed approximately 107 cases. According to [the same program], between
January 7, 2008 and February 6, 2008, I was assigned 120 new misdemeanor cases[.]
Affidavit of Joseph W. Ramsey, available at http://www.pdknox.org/800main.htm (last visited Mar. 2, 2009). As of March 2, 2009,
the court still has not issued a ruling on the public defender’s motion.
113. Ligda v. Superior Court of Solano County, 85 Cal. Rptr. 744, 754 (1970).
114. Betancourt v. Bloomberg, 448 F.3d 547, 554 (2nd Cir. 2006), cert. denied 2006 U.S. Lexis 8666 (2006) (upholding arrest for
sleeping in a cardboard box against constitutional vagueness challenge).
115. See 21 N.Y.C.R.R. § 1050.7; see also Man Hauled Off by Cops for Using 2 Subway Seats, WORLD NET DAILY (July 19, 2003),
available at http://www.worldnetdaily.com/news/article.asp?ARTICLE_ID=33662 (last visited Mar. 2, 2009).
116. 21 N.Y.C.R.R. §1050.10.
117. See AP, In Orlando, a Law Against Feeding Homeless — and Debate Over Samaritans’ Rights, Associated Press (Feb. 3, 2007),
available at http://www.iht.com/articles/ap/2007/02/04/america/NA-FEA-GEN-US-Do-Not-Feed-the-Homeless.php (last visited Mar.
16, 2009). The same AP article reported, “In Fairfax County, Virginia, homemade meals and meals made in church kitchens may not
be distributed to the homeless unless first approved by the county. … ‘We’ve seen cities going beyond punishing homeless people to
punishing those trying to help them, even though it’s clear that not enough resources are being dedicated to helping the homeless or the
hungry,’ said Maria Foscarinis, Executive Director of the National Law Center on Homelessness and Poverty, a non-profit in Washington,
D.C.” See also National Law Center on Homelessness and Poverty, Feeding Intolerance (Nov. 2007), available at
http://www.nlchp.org/content/pubs/Feeding_Intolerance.07.pdf (last visited Mar. 16, 2009); Las Vegas City Code § 13.36.055.
118. Such charges should be distinguished from license suspensions that result from reckless driving or excessive speeding, which
can be viewed as threatening public safety.

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Endnotes

54

119. See Race to the Bottom, supra. n. 39, at 91.
120. See, e.g., Gideon’s Broken Promise, supra. n. 34, at 7-9; Barbara Mantel, Public Defenders: Do Indigent Defendants Get Adequate Legal Representation?, CQ RESEARCHER, Vol. 18, No. 15 (Apr. 18, 2008), at 340-41.
121. Associated Press, Missouri Public Defenders to Begin Refusing Clients, JOPLIN GLOBE (Sept. 29, 2008).
122. See Eric Stirgus, Mayor Urges Cutting City Lawyers’ Jobs, ATLANTA JOURNAL-CONSTITUTION (Apr. 23, 2008).
123. Id.
124. It is possible to build a budget for a full time defender office or non-profit defender association that is based on a per attorney caseload limit no greater than national standards and that addresses other principles such as supervision, training, and support services including expert witnesses. There also needs to be flexibility to respond to the needs of unusual cases, and provisions for additional
funding when the caseload exceeds an agreed upon level. Contracts that are designed as described here are not “fixed fee” as contemplated in this report.
125. See Gideon’s Broken Promise, supra. n. 34, at 11-12.
126. California Commission on the Fair Administration of Justice, Final Report and Recommendations (Aug. 2008), at 101, available at http://www.ccfaj.org/documents/CCFAJFinalReport.pdf (last visited Mar. 2, 2009).
127. Argersinger, 407 U.S. at 38, fn. 9.
128. S.B. 2400, Hawaii Legislature 2008 General Session, available at http://www.capitol.hawaii.gov/session2008/Bills/SB2400_CD1_.pdf
(last visited Feb. 24, 2009).
129. Act 124, Hawaii Legislature, 2004 General Session, available at http://www.capitol.hawaii.gov/session2005/bills/HB1749_sd2_.htm
(last visited Feb. 24, 2009).
130. See Edwin L. Baker, Decriminalization of Nonserious Offenses: A Plan of Action, Legislative Reference Bureau, Report No. 3, 2005,
available at http://www.state.hi.us/lrb/rpts05/decrim.pdf (last visited Feb. 24, 2009).
131. Id. at v.
132. Id.
133. See Senate Bill 2400, Hawaii Legislature, 2008 General Session, available at http://www.capitol.hawaii.gov/session2008/Bills/SB2400_CD1_.pdf (last visited Feb. 24, 2009).
134. See id.
135. An Act Providing Counsel to Indigent Persons, Chapter 54 of the Acts of 2005, § 6, available at http://www.publiccounsel.net/administration/pdf/Chapter percent2054 percent20of percent20the percent20Acts percent20of percent202005.pdf (last visited
Mar. 2, 2009).
136. Id.
137. David Abel, Mass. Voters OK Decriminalization of Marijuana, BOSTON GLOBE (Nov. 4, 2008).
138. See Elizabeth Neely, Lancaster County Public Defender Workload Assessment, University of Nebraska Public Policy Center, at 17 (July 2008), available at http://ppc.unl.edu/userfiles/file/Documents/projects/Public percent20Defender/Public percent20Defender percent20Workload percent20Assessment.pdf (last visited Feb. 24, 2009).
139. See Kendra Waltke, Public Defender’s Office Stretched Thin, LINCOLN JOURNAL STAR (July 27, 2008).
140. ABA Commission on Effective Criminal Sanctions, Report I: Alternatives to Incarceration (Feb. 2007), available at
http://meetings.abanet.org/webupload/commupload/CR209800/newsletterpubs/ReportI.PDF.121306.pdf.
141. See Program Description, available at http://www.jud11.flcourts.org/programs_and_services/DLFAQFINAL.pdf (last visited
Mar. 17, 2009).
142. See Program Description, available at http://www.kingcounty.gov/courts/DistrictCourt/CitationsOrTickets/RelicensingProgram.aspx.
143. Costs & Benefits of the King County District Court Relicensing Program: Christopher Murray & Associates, 2004, Powerpoint Presentation, available upon request from author.
144. See Relicensing Program Web site, available at http://www.spokanecity.org/government/legal/prosecuting/relicensing/.
145. See Recommendations – Excessive Caseloads, supra. notes 100-105 and accompanying text.
146. See id.
147. Keeping Public Defender Caseloads Manageable, supra. n. 76, at 9.
148. Id.
149. Rawhide was a 1960’s television show about a cattle drive. The lyrics of the show’s theme song read in part as follows:
“Keep movin’, movin’, movin’; Though they’re disapprovin’; Keep them dogies movin’; Rawhide!” See Lyrics on Demand, available
at http://www.lyricsondemand.com/tvthemes/rawhidelyrics.html.
150. See National Legal Aid & Defender Association, Guidelines for Negotiating and Awarding Governmental Contracts for Criminal Defense Services (1984), available at http://www.nlada.org/Defender/Defender_Standards/Negotiating_And_Awarding_ID_Contracts (last visited Mar. 16, 2009); see also U.S. Department of Justice, Bureau of Justice Assistance, Contracting for Indigent Defense
Services (Apr. 2000), available at http://www.ncjrs.gov/pdffiles1/bja/181160.pdf (last visited Mar. 16, 2009).
151. See Ten Principles of a Public Defense Delivery System, supra. n. 60, at Principle 8 (“Contracts with private attorneys for
public defense services should never be set primarily on the basis of cost; they should … provide an overflow or funding mechanism
for excess, unusual or complex cases, and separately fund expert, investigative and other litigation support services.
152. See Bill Morlin, Verdict Rebuffs Flat-Fee Defender Contracts, SPOKESMAN-REVIEW (Jan. 30, 2009).
153. See id. The federal judge told the jury after its verdict:

Minor Crimes, Massive Waste

It is the responsibility of the officials such as county commissioners in those counties to see that persons who are
charged with serious offenses have the effective assistance of counsel. You have found responsibility on the part
of Mr. Earl, but there is responsibility by others to see that the criminal justice system comports with our constitutional protections. Not only by this action, but by reason of the problems that have existed in these other counties
coming to the fore, it is my belief that this case will serve as a catalyst for other counties, not only in the State of
Washington, but probably throughout the country, to reevaluate their system of providing effective assistance of
counsel.
Comments of Judge Quackenbus in Vargas v. Earl, Case No. CV 06-146-JLQ, Spokane, Washington (Jan. 29, 2009).
154. See WASH. RULES OF PROFESSIONAL CONDUCT, Rule 1:8 Conflict of Interest: Current Client: Specific Rules (2008), available
at http://www.courts.wa.gov/court_rules/?fa=court_rules.list&group=ga&set=RPC (last visited Mar. 16, 2009).
155. Board of Governors, Washington State Bar Association, Suggested Amendment to Washington Rules of Professional Conduct,
Rule 1:8 Conflict of Interest: Current Client: Specific Rules, available at http://www.courts.wa.gov/court_rules/?fa=court_rules.proposedRuleDisplay&ruleId=137 (last visited Mar. 16, 2009) (citing WSBA Informal Ethics Opinion No. 1647 (conflict of interest issues
under RPC 1.7 and 1.9 exist in requiring public defender office to recognize a conflict and hire outside counsel out of its budget); ABA
Standards for Criminal Justice, Std. 5-3.3(b)(vii) (3d ed. 1992) (elements of a contract for defense services should include “a policy for
conflict of interest cases and the provision of funds outside of the contract to compensate conflict counsel for fees and expenses”); People v. Barboza, 29 Cal.3d 375, 173 Cal. Rptr. 458, 627 P.2d 188 (Cal. 1981) (structuring public defense contract so that more money is
available for operation of office if fewer outside attorneys are engaged creates “inherent and irreconcilable conflicts of interest”)). As noted
above, the amendment was adopted and became effective on September 1, 2008.
156. Kim Taylor-Thompson, Tuning Up Gideon’s Trumpet, 71 FORDHAM L. REV. 1461, 1509 (2003).
157. Then-Chief Judge of the New York Court of Appeals, Judith Kaye, created The New York State Commission on the Future
of Indigent Defense Services, which was charged with performing a top-to-bottom examination of the state’s criminal indigent defense
system and developing a blueprint for reform. Chaired by Judge Burton Roberts and Professor William Hellerstein, the commission held
statewide hearings beginning in 2005. The Commission also hired The Spangenberg Group, a research firm nationally recognized for
its expertise in indigent defense, to study and report on the current operations of public defense in the state of New York. The comprehensive report was submitted to the commission, and became an appendix to the commission’s recommendations for change published
at the same time.
158. Spangenberg Group, Status of Indigent Defense in New York: A Study for Chief Judge Kaye’s Commission on the Future of
Indigent Defense Services (June 16, 2006), at 45, available at http://www.courts.state.ny.us/ip/indigentdefense-commission/SpangenbergGroupReport.pdf (last visited Mar. 10, 2009).
159. Adele Bernhard, Take Courage: What Courts Can Do to Improve the Delivery of Criminal Defense Services, 63 U. PITT. L.
REV. 293, 346 (2002).
160. A Statement by Kaye Commission Member Professor Steven Zeidman, available at www.nyclu.org/node/1482 (last visited
Mar. 16, 2009).
161. U.S. Department of Justice, Bureau of Justice Administration, Contracting for Indigent Defense Services (2000), at 1-2, available at http://www.ncjrs.org/pdffiles1/bja/181160.pdf (last visited Mar. 16, 2009).
162. Id.
163. The California Commission on the Fair Administration of Justice reported that the fired associate subsequently filed a federal lawsuit against the contract defender and received a settlement. The commission noted, “In a deposition for that lawsuit, the contract attorney boasted that he pled 70 percent of his clients guilty at the first court appearance, after spending 30 seconds explaining the
prosecutor’s ‘offer’ to the client.” California Commission on the Fair Administration of Justice, Report and Recommendations on Funding of Defense Services in California (Apr. 14, 2008), at 9, available at http://www.ccfaj.org/documents/reports/prosecutorial/official/OFFICIAL%20REPORT%20ON%20DEFENSE%20SERVICES.pdf (last visited Mar. 16, 2009).
164. Albert W. Alschuler, The Prosecutor’s Role in Plea Bargaining, 36 U. CHI. L. REV. 50, 60-69 (1968) (offering anecdotal evidence that plea bargaining induces innocent defendants to plead guilty); see also Michael O. Finkelstein, A Statistical Analysis of
Guilty Plea Practice in the Federal Courts, 89 HARV. L. REV. 293 (1975).
165. See, e.g., John L. Barkai, Accuracy Inquiries for All Felony and Misdemeanor Pleas: Voluntary Pleas but Innocent Defendants, 126 U. PA. L. REV. 88 (1977).
166. Cf. id. at 96-97 (noting that an innocent defendant might plead guilty because of: “the disparity in punishment between conviction by plea and conviction at trial; … a desire to protect family or friends from prosecution; … the conditions of pretrial incarceration; … desire to expedite the proceedings, among other reasons”).
167. Joseph Bellacosa, In Defense of a Need to Remedy Public Defense, NEWSDAY (July 28, 2008).
168. Robert Guest (Feb. 27, 2008), blog available at http://www.dallascriminaldefenselawyerblog.com/kaufman_county/ (last
visited Mar. 16, 2009).
169. A Statement by Kaye Commission Member Professor Steven Zeidman, supra. n. 160.
170. See Misdemeanor Defense in Practice, supra. notes 156-166 and accompanying text.
171. In fact, these types of cases produce active motions and jury trial practice in many other jurisdictions. See, e.g., Ted Vosk,
DWI, THE CHAMPION (May/June 2008), at 54 (about unreliable lab testing); Mimi Coffey, DWI, THE CHAMPION (Jan./Feb. 2008), at 5
(arguing that field sobriety tests are not reliable). In King County District Court in Washington State, for example, in 2007, there were

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55

Endnotes

56

4,256 DUI/physical control filings. There were 153 trials, resulting in 31 acquittals, representing a trial rate of approximately 3.6 percent and an acquittal rate of approximately 20 percent. See Courts of Limited Jurisdiction, Annual Caseload Report 2007, available at
http://www.courts.wa.gov/caseload/clj/ann/2007/annualtbls07_wo_staffing.pdf (last visited Mar. 16, 2009).
172. Nevada Supreme Court Task Force Implementation Committee for the Elimination of Racial, Economic and Gender Bias in
the Justice System, Indigent Defense Services in Nevada: Finding and Reccomendations (2000).
173. Nevada Supreme Court Order, available at http://www.nvsupremecourt.us/documents/orders/ADKT411Order.pdf (last visited Mar. 16, 2009).
174. Nevada Performance Standards, Felony and Misdemeanor Trial Cases, Standard 3, available at http://www.nvsupremecourt.us/documents/orders/ADKT411Order01_04_08.pdf (last visited Mar. 16, 2009).
175. Id., Standard 4.
176. Opinion, Upholding Our Standards Will Mean Reaching Into Our Wallets, RENO GAZETTE-JOURNAL (May 7, 2008).
177. The Thin Line of Defense, N.Y. TIMES, Video Report, produced by Kassie Bracken and Erik Eckholm, available at
http://www.nytimes.com/2008/11/09/us/09defender.html?ex=1383973200&en=69517a39c4d1aefb&ei=5124&partner=digg&exprod=digg (last visited Mar. 16, 2009).
178. Jan Pudlow, Judge Allows 11th PD to Stop Taking Cases, Florida Bar News (Sept. 15, 2008).
179. ABA Criminal Justice Standards on Pretrial Release, Standard 10-1.1, adopted by the ABA House of Delegates in February
2002, available at http://www.abanet.org/crimjust/standards/pretrialrelease_toc.html (last visited Mar. 2, 2009).
180. Id. at Standard 10-5.1.
181. See id.
182. Id. at Standard 10-5.3 (“Financial conditions other than unsecured bond should be imposed only when no other less restrictive condition of release will reasonably ensure the defendant’s appearance in court. The judicial officer should not impose a financial
condition that results in the pretrial detention of the defendant solely due to an inability to pay.”).
183. WASH. CRIM. RULES FOR COURTS OF LIMITED JURISDICTION, Rule 3.2.
184. Id.
185. See, e.g., Massachusetts Committee for Public Counsel Services, Performance Standards and Complaint Procedures, Criminal District Court Jurisdiction, § 4.1; § 5.1 (describing duty to investigate and noting that plea negotiations should not occur until
“after interviewing the client and developing a thorough knowledge of the law and facts of the case”), available at http://www.publiccounsel.net/private_counsel_manual/private_counsel_manual_pdf/chapters/manual_chapter_4_criminal.pdf (last visited Mar. 2, 2009).
186. ABA Criminal Justice Section, Standards on the Defense Function, § 4-4.1, available at http://www.abanet.org/crimjust/standards/dfunc_blk.html#4.1 (last visited Mar. 2, 2009).
187. See id. (“The duty to investigate exists regardless of the accused’s admissions or statements to defense counsel of facts constituting guilt or the accused’s stated desire to plead guilty.”).
188. Prosecutors are under tremendous pressure to generate convictions. Conviction percentages, or win/loss records, both for individual prosecutors and for offices, are often used as performance measures, which are reviewed by county and state authorities when
considering prosecutorial performance and budgets, and which are also used by individual offices for review and promotion purposes.
See, e.g., George Fisher, What Prosecutors Can’t Hold Back, NEW YORK TIMES (May 19, 2001), at A13 (noting the “widespread suspicion” that win loss statistics are used to grant promotions and pay raises); Stephanos Bibas, Plea Bargaining Outside the Shadow of
Trial, 117 HARV. L. REV. 2463, 2471-72 (2004) (emphasizing that “prosecutors want to ensure convictions” and that the “statistic of
conviction … matters much more than the sentence”). This pressure is, in part, to blame for the pressure to plea bargain, as a plea bargain counts as a conviction or win, whereas the dismissal of a case counts as a loss. As one prosecutor noted, “When we have a weak
case … we’ll reduce to almost anything rather than lose.” Alschuler, The Prosecutor’s Role in Plea Bargaining, supra n. 164, at 59. In
misdemeanor court, the prosecutor can actually reduce the charge to almost nothing, in the form of probation, without being criticized,
because the nature of the charge is minimal. The defendant, in turn, even if innocent, is under tremendous pressure to accept the plea
because, as noted above, the costs of continuing to challenge the charge appear incredibly high in comparison to accepting the small
punishment. To fully address the problem, the pressure on prosecutors to avoid dismissals must be alleviated. See American Prosecutors Research Institute, Prosecution in the 21st Century: Goals, Objectives, and Performance Measures (2004), at 1-3 (disavowing the
use of conviction rates as a performance measure), available at http://www.ndaa.org/pdf/prosecution_21st_century.pdf (last visited
Mar. 2, 2009).
189. Ten Principles of a Public Defense Delivery System, supra n. 60, at Commentary to Principle 5.
190. In some cases, defendants arrested for petty crimes are held in jail even when they are incompetent to stand trial because there
is no hospital bed available. See Abby Goodnough, Officials Clash Over Mentally Ill in Florida Jails, N.Y. TIMES, (Nov. 15, 2006), at
A1.
191. Doris J. James and Lauren E. Glaze, Mental Health Problems of Prison and Jail Inmates, Bureau of Justice Statistics Special Report (Sept. 2006), available at http://ojp.usdoj.gov/bjs/pub/pdf/mhppji.pdf (last visited Mar. 16, 2009).
192. ABA Criminal Justice Standards, Providing Defense Services, Standard 5-1.4.
193. Lee Molloy, A Class C Defense, THE SUNPOST (Sept. 11, 2008).
194. NLADA Defender Training and Development Standards, Standard 1:1, available at http://www.nlada.org/Defender/Defender_Standards/Defender_Training_Standards#oneone (last visited Mar. 2, 2009). Similarly, national performance standards provide:

Minor Crimes, Massive Waste

(a) To provide quality representation, counsel must be familiar with the substantive criminal law and the law of criminal procedure and its application in the particular jurisdiction. Counsel has a continuing obligation to stay abreast of changes and developments in the law. Where appropriate, counsel should also be informed of the practices of the specific judge before whom
a case is pending.
(b) Prior to handling a criminal matter, counsel should have sufficient experience or training to provide quality representation.
NLADA Performance Guidelines for Defense Representation, Guideline 1.2: Education, Training and Experience of Defense
Counsel, available at http://www.nlada.org/Defender/Defender_Standards/Performance_Guidelines#oneone (last visited Mar. 2, 2009).
195. See Program Description, available at http://www.phila.gov/defender (last visited Mar. 16, 2009).
196. For more information on the Kentucky training program, see http://dpa.ky.gov/ed/ (last visited Mar. 16, 2009).
197. For more information on the Massachusetts training program, see http://www.publiccounsel.net/Training/training_index.html
(last visited Mar. 16, 2009).
198. See Program Description, available at http://www.pdsdc.org/LegalCommunity/TrainingSummerSeries.aspx (last visited Mar.
16, 2009).
199. See N.Y. RULES OF THE COURT, APP. DIV., FIRST DEPT., Rules 612.0-612.12; see also Assigned Counsel Application, application at http://www.courts.state.ny.us/courts/ad1/18BAPPLICATION.1stDept.FINAL.pdf. Attorney reviews should involve attorney-client privileged material only when a client files a complaint concerning an attorney and a waiver, therefore, can be obtained.
Review files should then be confidential, unless subpoenaed as part of a legal proceeding. See, e.g., Washington State Bar Association, Informal Opinion 2035 (2003) (holding that privileged and confidential material should not be turned over to funding agencies); D.C. Bar Opinion 222, Nondisclosure of Protected Information to Funding Agency (Dec. 17, 1991), available at
www.dcbar.org/for_lawyers/ethics/legal_ethics/opinions/opinion223.cfm (last visited Mar. 25, 2009) (same).
200. See N.Y. RULES OF THE COURT, APP. DIV., FIRST DEPT., Rule 612.9 (“The Central Screening Committee may continue to
process complaints against panel attorneys which relate to the discharge of an attorney’s duties under the panel plan.”).
201. See generally NLADA Performance Guidelines for Criminal Defense Representation, supra. n. 194.
202. Nevada Indigent Defense Standards of Performance, Standards 1(b), available at http://www.nvsupremecourt.us/documents/orders/ADKT411AdoptStandards.pdf (last visited Mar. 16, 2009).
203. See Washington State Bar Association Standards for Indigent Defense Services, available at http://www.opd.wa.gov/Trial percent20Defense/080721 percent20wsbastandards408.pdf (last visited Mar. 16, 2009.
204. The Massachusetts Performance Guidelines, available at http://www.publiccounsel.net/private_counsel_manual/private_counsel_manual_pdf/chapters/chapter_4_sections/criminal/criminal_district_court_superior_court_murder_(trial_level).pdf (last visited
Mar. 16, 2009).
205. The Nevada Performance Standards, available at http://www.nvsupremecourt.us/documents/orders/ADKT411AdoptStandards.pdf (available at Mar. 16, 2009).
206. New York State Bar Association, Standards for Providing Mandated Representation, adopted by the House of Delegates on
April 2, 2005, available at http://www.nysba.org/AM/Template.cfm?Section=Home&TEMPLATE=/CM/ContentDisplay.cfm&CONTENTID=2726 (last visited Mar. 16, 2009).
207. Nevada Indigent Defense Performance Standards, Standard 1(c), supra. n. 202.
208. For more on this process, see Standards of Practice Enforcement Web site at http://www.indigentdefense.virginia.gov/StandofPracEnf.htm (last visited Mar. 2, 2009).
209. Press Release, Congress Passes Durbin Bill Providing Student Loan Relief for Young Prosecutors and Public Defenders
(Aug. 4, 2008), available at http://durbin.senate.gov/showRelease.cfm?releaseId=301775 (last visited Mar. 16, 2009).
210. See id.
211. See National Association of Law Placement, What Do New Lawyers Earn? A 15-Year Retrospective as Reported by Law
School Graduates, NALP BULLETIN (Sept. 2007).
212. Inadequate compensation frequently afflicts both prosecutors and defenders. In many cases, both sides are paid inadequately.
See, e.g., Crocker Stephenson, State Assistant Prosecutors Quitting Over Pay, Caseloads, JOURNAL-SENTINEL (Oct. 27, 2008).
213. See Job Announcement, available at http://www.alleghenycounty.us/jobs/OPDdefat.aspx (last visited Feb. 24, 2009).
214. The District Attorneys in Allegheny County are also paid poorly, although their pay increases more with experience than that
of the public defenders. The starting salary in the District Attorney’s office is about $1,000 higher than the public defender at $39,625
per year. It increases to $44,932 at five years, $59,885 at eight to 10 years, $67,663 at 11-15 years, and $71,452 at more than 15 years.
The elected District Attorney salary in 2007 was $151,115. By contrast, the defenders are lagging behind. The Chief Defender’s salary
is $93,000. One of the senior managers receives $62,000. One of the defender attorneys who had 10 years’ experience reported that last
year he received a raise from $48,000 to $58,000 per year.
215. See Memorandum of Law In Support of Motion to Appoint Other Counsel (citing a Florida Bar survey), available at
http://www.pdmiami.com/ExcessiveWorkload/Memorandum_of_Law_in_Support_of_Motion_to_Appoint_Other_CounselOscar_Munoz.pdf (last visited Mar. 2, 2009).
216. Ten Principles of a Public Defense Delivery System, supra n. 60, at Principle 8.
217. Id. at Commentary to Principle 8 (emphasis added).
218. Id.

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57

Endnotes

58

219. See In Tiny Courts of New York, Abuses of Law and Power, supra. n. 9.
220. In re Hammermaster, 985 P.2d 924 (1999) [citation omitted].
221. See Case Summary, available at http://www.cjc.state.wa.us/search/searchResultListSpecificCJC.php?id=3210 (last visited
Mar. 2, 2009); see also In re Michels, 75 P.3d 950 (2003) (disciplining a judge for violating the basic responsibility to make sure eligible people have counsel).
222. In re Ottinger, CJC no. 3811-F-110, available at http://www.cjc.state.wa.us/Case percent20Material/2004/3811/3811 percent20Ottinger percent20Stipulation percent20Final.pdf (last visited Mar. 2, 2009).
223. See id.
224. See id.
225. In re Ottinger, No. 203,389-3, Wash. Supreme Court (July 20, 2006), available at http://www.cjc.state.wa.us/Case%20Material/2006/4475%20Supreme%20Court%20Decision.pdf (last visited Mar. 16, 2009).
226. In Tiny Courts of N.Y., Abuses of Law and Power, supra. n. 9.
227. MODEL CODE OF JUDICIAL CONDUCT at Cannon 3(B)(4)-(5), available at http://www.abanet.org/cpr/mcjc/toc.html (last visited
Mar. 2, 2009).
228. Johnson v. Zerbst, 304 U.S. 458, 464-65 (1938).
229. In re Hammersmith, 985 P.2d 92 (1999) (citing In re Reeves, 469 N.E.2d 1321(1984); In re Field, 576 P.2d 348 (1978); Ryan
v. Comm’n on Judicial Performance, 754 P.2d 724 (1988)).
230. David M. Bateson & Tim Hart, Combating Attorney Burnout, BENCH & BAR OF MINNESOTA Vol. 64, No. 11 (Dec. 2007).
231. David Allan Felice, Justice Rationed: A Look at Alabama’s Present Indigent Defense System with a Vision Toward Change,
52 ALA. L. REV. 975, 994 (2001).
232. Mark Levitan, Poverty in 2002: One-Fifth of the City Lives Below the Federal Poverty Line (Sept. 30, 2003) available at
http://www.cssny.org/userimages/downloads/2003_09poverty.pdf (last visited Mar. 16, 2009).
233. Steven Zeidman, Time to End Violation Pleas, N.Y.L.J. (Apr. 1, 2008), at 2.
234. Sam Skolnik, Drug Arrests Target Blacks Most Often, SEATTLE POST-INTELLIGENCER (May 15, 2001), at B1.
235. Eric Nalder, Lewis Kamb and Daniel Lathrop, Blacks Are Arrested on ‘Contempt of Cop’ Charge at Higher Rate, SEATTLE
POST-INTELLIGENCER (Feb. 28, 2008), at A1.
236. Press Release, 200 Exonerated, Too Many Wrongfully Convicted, Innocence Project, available at http://www.innocenceproject.org/Content/530.php (last visited Mar. 16, 2009).
237. Defenders may also be able to address practices that unnecessarily humiliate defendants based, in part, on the disproportionate way in which these practices apply to defendants of color. One such practice is the shackling of defendants accused of misdemeanor crimes. In many courts, all in-custody defendants appear in court in handcuffs and/or leg chains. As observed above, most such
defendants are people of color. Shackling of defendants is not commonly challenged by defense attorneys, despite the profound effect
that the practice has on clients and despite precedent requiring a showing that restraint is necessary for the safety of the defendant or
others. See, e.g., In re Staley, 364 N.E.2d 72, 73-74 (Ill. 1977) (“Physical restraints should not be permitted unless there is a clear necessity for them.”); State v. Williams, 18 Wash. 47, 51 (1897) (“The right here declared is the right to appear with the use of not only
his mental but his physical faculties unfettered, and unless some impelling necessity demands the restraint of a prisoner to secure the
safety of others and his own custody, the binding of the prisoner in irons is a plain violation of the constitutional guaranty.”
238. See Press Release, Gloucester County Defenders Win National Award for Profiling Work, State of New Jersey, Office of the
Public Defender (June 6, 2001), available at http://nj.gov/defender/news/p010607b.html (last visited Mar. 2, 2009).
239. See Program Description, available at http://www.defender.org/projects/rdp/ (last visited Mar. 2, 2009).
240. Id.

Minor Crimes, Massive Waste

SUMMARY OF RECOMMENDATIONS
Recommendations — Absence of Counsel

The right to counsel should be observed in accordance with Argersinger v. Hamlin and Alabama v.
Shelton.

Waivers of counsel should be handled carefully, with judges ensuring that the defendant fully understands his or her right to counsel, as well as the dangers of waiving counsel.

Appointment of counsel should be automatic for any defendant who appears without counsel until it
is demonstrated through a fair and impartial eligibility screening process that the defendant has the
financial means to hire an attorney to represent him or her in the matter charged.

Ethical prohibitions on prosecutors speaking directly with defendants should be strictly enforced.

59

Recommendations — Deterrents to Asking for Counsel

Defense counsel should be available to represent an accused person at the first appearance.

No application fee should be charged for public defense services.

Recommendations — Excessive Caseloads

All persons representing indigent defendants should be subject to caseload limits that take into account
the unique nature of the jurisdiction and its misdemeanor practice and, under no circumstances, exceed national standards.

When caseloads become burdensome, defenders, pursuant to their ethical obligations, should seek to
discontinue assignments and/or withdraw from cases until the caseloads become manageable.

Recommendations — Causes of Excessive Caseloads

Offenses that do not involve a significant risk to public safety should be decriminalized.

Diversion programs should be expanded.

Funding for misdemeanor defense should permit the maintenance of appropriate caseloads.

Counties and states should discontinue the use of flat-fee contracts as a means of providing indigent defense services.

Recommendations — Misdemeanor Defense in Practice

Guilty pleas should not be accepted at first appearance unless the attorney has fully informed the defendant of the options, the potential defenses, the potential outcomes, the consequences of foregoing
further investigation and discovery, the possible sentences, and the collateral consequences of conviction, and the defendant understands and chooses to plead guilty. In addition to conducting a full
and vigorous colloquy, judges should require defense attorneys to aver, on the record, that these steps
have been taken.

The impact of bail and bond determinations on the pressure to plead should be considered with regard
to each defendant.

The Terrible Toll of America’s Broken Misdemeanor Courts

Recommendations

Prosecutors should not utilize time limits on plea bargains to coerce early pleas, particularly when
the time limit does not permit defense counsel to fully assess the appropriateness of the plea and advise the client.

When setting the caseload standards for a jurisdiction, particular attention should be paid to the collateral consequences of convictions in that jurisdiction and the time needed by the defender to research, understand, and advise clients with regard to collateral consequences.

Early disposition projects should not be exempted from caseload limits.

Recommendations — Lack of Support Services

Misdemeanor defenders should have access to legal research tools, investigative resources, and expert witnesses.

60

Social workers or other mental health support services should work in tandem with defenders to
screen clients for mental health issues.

Recommendations — Inexperienced Counsel in Misdemeanor Courts

Public defense attorneys should be required to attend training on trial skills, substantive and procedural laws of the jurisdiction, and collateral consequences before representing clients in misdemeanor
court. Thereafter, regular training on topics relevant to the practice area should be required on an
ongoing basis.
Public defenders and assigned counsel in misdemeanor court should be actively supervised by experienced trial attorneys.

Recommendations — Lack of Standards

Jurisdictions should adopt practice standards applicable to all attorneys representing indigent defendants.
Jurisdictions should have an active process for enforcement of standards.

Recommendation — Inadequate Compensation

Misdemeanor public defense counsel should receive fair compensation, including medical and retirement benefits.

Recommendations — Judicial Conduct in Misdemeanor Cases

All judges handling misdemeanor cases should receive extensive training on the importance of criminal charges and the direct and collateral impact of pleading guilty on the defendant.

Judges should be disciplined for failing to enforce the constitutional rights of defendants.

Recommendation — Lawyer Burnout

Defender programs should have an active plan for combating attorney burnout.

Recommendations — Disproportionate Impact on Minority Communities
Defender offices should gather data regarding racial and ethnic disparities.

Defenders should make efforts to address racial disparities in the criminal justice system.

Minor Crimes, Massive Waste

Appendix available at www.nacdl.org/misdemeanor

N A TI ON A L A S SO C I A TI ON O F
C R I M I N A L D E FE N S E L A W Y E RS

1660 L Street NW, 12th Floor
Washington, DC 20036

Phone: 202-872-8600; Fax: 202-872-8690

http://www.nacdl.org