The price of misdemeanor representation.

• Author: Hashimoto, Erica J.

ABSTRACT

Nobody disputes either the reality of excessive caseloads in indigent defense systems or their negative effects. More than forty years after Gideon v. Wainwright, however, few seem willing to accept that additional resources will not magically appear to solve the problem. Rather, concerned observers demand more funds while state and local legislators resist those entreaties in the face of political resistance and pressures to balance government budgets. Recognizing that indigent defense systems must operate in a world of limited resources, states should reduce the number of cases streaming into those systems by significantly curtailing the appointment of counsel in low-level misdemeanor cases, thereby freeing up resources for more effective representation of those charged with more serious crimes. States can achieve this result without violating constitutional requirements by: (1) amending overbroad appointment statutes, (2) reducing penalties for certain minor offenses, (3) amending probation statutes, and (4) requiring judges and prosecutors to identify at the beginning of the proceedings those misdemeanor cases that are the most serious.

Although it may appear that denying counsel to some misdemeanor defendants will prejudice their interests, empirical evidence suggests that counsel in misdemeanor cases do not typically provide significant benefits to many of their clients. Rather than spending resources on low-value representation, states should use those resources to reduce the caseloads of indigent defenders, thereby increasing the quality of representation in felony and serious misdemeanor cases. To ensure that result, states should, and indeed must, couple reforms designed to reduce counsel appointment in misdemeanor cases with enforceable, numerical limits on per-attorney caseloads.

TABLE OF CONTENTS INTRODUCTION I. THE CASELOAD CRISIS II. SOURCES OF THE CASELOAD CRISIS A. Providing Counsel to More Defendants: The Increasing Number of Cases 1. The Constitutional Standard: Broadening the Scope of the Sixth Amendment 2. Increased Number of Prosecutions 3. Rising Rates of Indigence 4. Overall Effects B. Indigent Defense Budgets: The Failure To Keep Pace III. FOCUSING RESOURCES ON SERIOUS CASES A. Empirical Evidence of the Limited Value of Counsel in Misdemeanor Cases B. Reducing the Appointment of Counsel in Misdemeanor Cases 1. Amending Statutes To Require Appointment of Counsel Only When There Is a Constitutional Right 2. Eliminating Imprisonment Penalties for Minor Offenses 3. Amending Probation Statutes 4. Requiring Judicial and Prosecutorial Triage IV. THE IMPERATIVE FOR MANDATORY CASELOAD CAPS CONCLUSION INTRODUCTION

Outrageously excessive caseloads have compromised the quality of indigent defense representation. (1) Nationwide, even public defenders representing defendants charged with serious felonies sometimes represent as many as 500 clients per year. (2) As one public defender put it: "When caseloads are so high that a public defender can only spend 3.8 hours per case, including serious felony cases, [our] public defenders cannot ensure reliability." (3) Despite the scarcity of attorney resources, indigent defense systems force counsel to direct significant attention to low-level misdemeanor cases. In North Carolina, for instance, an indigent criminal defendant charged with a second littering offense has a right to court-appointed counsel. (4) In order to help solve the indigent defense crisis, states should redirect resources now spent on such matters to reduce indigent defender caseloads so that those who represent defendants charged with more serious crimes will have more time to spend on those cases.

The two major sources of the caseload problem are easy to identify. First, the number of court-appointed criminal cases in state and local courts has increased sharply, more than doubling and perhaps even tripling during the past twenty years. (5) Those increases are traceable to: (1) the Supreme Court's decision to expand the right to counsel in misdemeanor cases; (6) (2) steady increases in the number of cases prosecuted; (7) and (3) rising levels of indigence among criminal defendants, (8) Second, indigent defense budgets have not kept pace with the increased number of cases pouring into the indigent defense system. (9) Lacking sufficient funds to hire additional attorneys to handle the influx of new cases, decision makers at every level of government have simply piled additional cases on top of the existing caseloads of indigent defense attorneys.

For years, indigent defense advocates have clamored for more funding to address this crisis. Not only have those pleas fallen on deaf ears, (10) but the continued focus on additional resources has also obscured discussion of the other--and no less pressing--cause of excessive caseloads: the increase in the number of cases in which counsel are appointed. After all, if the total number of cases were to drop rather than to rise, caseloads would decrease even if budgets did not increase except for inflation adjustments. Although one might examine a number of factors contributing to increased caseloads, this Article focuses on low-level misdemeanor cases--cases in which states currently appoint counsel but in which those counsel do not appear to provide significant benefit to the defendants--and the ways in which a state could limit appointment in those cases.

A focus on reducing the appointment of counsel in misdemeanor cases is appropriate because new data suggest that the value added by defense counsel in misdemeanor cases is lower than the value added in more serious cases. (11) In terms of both overall outcome (conviction or no conviction) and sentencing outcomes (the severity of the penalty imposed in the event of conviction), pro se misdemeanor defendants in federal court have significantly better results than do represented misdemeanor defendants. (12) Indeed, in the federal system, pro se misdemeanor defendants have better outcomes than every category of represented misdemeanor defendants, including those who retain attorneys and those represented by appointed counsel. (13) The data do not definitively establish that appointment of counsel for misdemeanor defendants is not necessary, especially because data exist only for misdemeanor defendants in federal court and not state court. At the very least, however, the empirical evidence suggests that the value added by counsel in less serious misdemeanor cases is far lower than the value added in more serious cases.

In light of this data, it appears that states could reduce the number of cases in which counsel is appointed without significantly undermining the accuracy of results in those proceedings. There is, however, a significant obstacle to simply discontinuing the appointment of counsel in low-level misdemeanor cases. The difficulty is that the Constitution requires appointment of counsel for many, though not all, misdemeanor defendants, and the Supreme Court has not made it easy to ascertain, at the time the decision regarding appointment of counsel is made, whether a misdemeanor defendant has the right to counsel. Essentially, a misdemeanor defendant's right to counsel depends on the sentence he receives at the conclusion of the proceeding. Because it is so difficult to determine the sentence at the beginning of the case, states appoint counsel in many cases in which it later turns out no right to counsel existed. Indeed, many states have adopted statutes explicitly providing a right to counsel for misdemeanor defendants even in the absence of a federal constitutional right. (14)

Despite the confusion created by the Supreme Court in this area, there are four steps that states can take to limit appointment of counsel to those cases in which the need for appointment is most justified. First, states that currently provide a statutory right to counsel in all misdemeanor cases--regardless of penalty--should amend their statutes so that the defendant's statutory right to counsel mirrors the federal constitutional right to counsel. Second, states should modify penalties for some minor offenses so that those offenses do not give rise to a right to counsel. Third, states should alter the structure of probation so that the imposition of a probationary sentence does not give rise to a right to counsel. Finally, states should establish procedures so that determinations regarding potential sentences in misdemeanor cases are made at the outset of the case.

If implemented, these reforms should produce a decrease in the number of cases entering the indigent defense system, thereby leading to a reduction in the caseloads of indigent defenders. In order to ensure that the reduction in the total number of cases actually leads to a caseload reduction, rather than a reduction in the budgets for indigent defense systems, jurisdictions should couple these reforms with the adoption of enforceable, numerical caseload limitations. Because the Supreme Court has failed to recognize caseload limitations as a constitutional requirement, states must take the initiative in adopting them. These limits can take many forms and can be enforced through a variety of mechanisms. To be successful, however, these initiatives must include specific numerical limitations and those limitations must be enforceable. Adoption of such measures will ensure that decreases in the number of cases requiring appointment of counsel will in fact lower the caseloads of indigent defense providers.

This Article contains four parts. Part I describes the excessive caseloads in indigent defense systems and the problems associated with excessive caseloads. Part II examines the causes of those excessive caseloads, including the fact that the total number of cases has risen between 100 percent and 200 percent over the past twenty years, whereas indigent defense funding has increased, at most, 75 percent. Part III proposes...