Public defense attorneys are often overworked, under-resourced, and are representing clients who are overrepresented in the criminal legal system.
By Matt Keyser
National Partnership for Pretrial Justice
Published: Sept. 30, 2021
The first time Anita Nabha met Kenneth Humphrey, she met a man in jail full of confidence.
As a public defense attorney with the San Francisco Public Defender’s Office, Nabha was assigned to the case of the 64-year-old Black man who was accused of entering a neighbor’s home, threatening the elderly man, and stealing a $5 bottle of cologne.
Humphrey had languished in jail for nearly a year, unable to afford his $350,000 bail that would buy his freedom as he awaited resolution in his case. But the former shipyard worker had cause for hope, despite the threat of facing up to life in prison under California’s three-strikes law. With the help of a previous attorney from the public defender’s office, Humphrey had appealed his original bail amount of $600,000 and won.
Although the lowered amount was still more than he could afford, Humphrey planned to continue his fight against the state’s unjust bail system, believing that no person should be detained because they can’t afford unreasonably high bail.
Though she was new to his case, Nabha agreed to fight the case as far as it would go, inspired by Humphrey’s desire to push ahead.
“He was unwavering in his confidence that he would be successful,” Nabha said recently.
With the advocacy of Nabha and attorneys from Civil Rights Corps [an NPPJ partner], the First District Court of Appeals sided with Humphrey, setting up a landmark decision that would later be affirmed by the state Supreme Court. Now in California, judges must take into account a person’s financial conditions when setting bail.
The historic ruling became known as the “Humphrey Decision.”
Humphrey’s case is a prime example of the power people hold—whether incarcerated or not—when they have quality attorneys representing them. But in the United States, not everyone benefits like Humphrey from having adequate representation in the courtroom.
Often, public defense attorneys are overburdened, overworked, and lack the needed resources to plan a strategic defense. It’s a stark contrast from prosecutor offices that have the support of local law enforcement that’s equipped with investigators, crime scene analysts, and various experts who can help prosecute a case.
In an effort to create a more equitable public defense system, Arnold Ventures is funding various projects nationwide that will focus on three main issues: access to counsel, quality of counsel, and independence.
“I think it’s significant that the right to counsel is articulated in our Bill of Rights,” said Rebecca Silber, director of criminal justice for Arnold Ventures. “It is fundamental to a legitimate criminal justice system that people who are prosecuted by the state have a lawyer to represent them to fight off those charges. When we fail to do that, our system is not functional and it’s fundamentally against our values of justice and due process and fairness.”
In her decade fighting for the underprivileged in the courtroom—“fighting for the underdog,” she says—Nabha has seen firsthand how race plays a role in the courtroom, whether it’s having conversations in judges’ chambers or during jury selection.
She recalled a time picking a jury when she asked a potential juror about the charge against her Black client, to which the juror, she said, responded: “Well, I think Black people are more violent.”
“The air gets sucked out of the courtroom,” Nabha said. “These are not things you learn in law school. How do you continue that conversation with a room full of strangers to make sure that your client gets a fair trial? And how do you facilitate that dialogue when the judge is trying to shut it down. [The judge] doesn’t want the whole jury struck down because they’re racist or hateful. They want to impanel a jury and move on.”
A 2009 study by Evident Change found that communities of color are overrepresented in America’s legal system and were far more likely to rely on a public defender than a white person.
The study, Created Equal: Racial and Ethnic Disparities in the U.S. Criminal Justice System, found that Black people who were detained pretrial were nearly 5 times more likely to rely on a public defender. A Hispanic person, meanwhile, was 2 times as likely.
The study found that people of color are less likely to receive probation when compared to white people and are given longer prison sentences.
“If we want a system that is fair, we need to have a strong and well-resourced public defender’s office. We can’t have one system for the poor and another for the rich,” Jeff Adachi, the former lead public of the San Francisco Public Defender’s Office, said in 2009.
‘Criminal Processing System’
For more than 50 years, Stephen Hanlon has fought for public defenders. In that time, he’s learned an unfortunate truth about the entire legal system.
“I say this with great reluctance, because I’ve been practicing law for 55 years and I’m proud of my profession, it’s a noble profession, but we have failed miserably. All of us,” Hanlon said. “Not just public defenders, but judges, lawyers, bar disciplinary boards, state supreme courts, trial courts. We have become the principal facilitators of mass incarceration.
“You can’t do mass incarceration unless our entire profession rolls over and plays dead.”
Hanlon wants to blow up what he calls the “criminal processing system” and replace it with a “criminal justice system.”
He has spent the past decade collecting data in various states that spotlights how overburdened public defenders in the United States really are.
In a Louisiana study from 2016, Hanlon found that public defenders carried a workload five times the rate of national standards.
Those standards, developed in 1973 by the National Advisory Commission, recommend an attorney should work no more than 150 felony cases and no more than 400 misdemeanors per year. Hanlon called those standards “preposterous—simply preposterous.”
Based on caseloads in Louisiana in 2016, the study found that state public defenders were equipped to handle 21 percent of the current caseload and provide effective representation.
At the Orleans Public Defender’s Office, which includes New Orleans, staff attorneys at times carried 200 or more cases, ranging from serious felonies to low-level misdemeanors. The COVID-19 pandemic worsened the problem as attorneys and investigators were furloughed, and cases clogged the already overwhelmed court system.
In June 2020, staff attorney Diana Yu wrote in a blog post:
For all of us who feel like we are losing months of our lives in limbo, some of my clients are spending those months stuck in a dystopian trap. They’re presumed innocent. They were promised they would get their day in court. But when that day will come now, nobody knows.
Our clients deserve their day in court. They deserve freedom while they’re presumed innocent, especially if we cannot even give them their day in court. They deserve a fully-funded public defender who can do adequate investigation to stand up to the police narrative. They deserve lawyers, period.
Our clients deserve better.
Hanlon conducted studies similar to Louisiana in Missouri, Rhode Island, Colorado, and Indiana—all found public defenders were carrying caseloads two or three times higher than those outdated standards.
Hanlon compared the repercussions to that of a doctor’s office that was operating beyond its capacity.
“If an obstetrician had five times as much work as they could handle competently, terrible things would happen,” he said. “If a public defender has five times as much work as they could handle competently, terrible things would happen.”
Data Drives Reform
Equipped with a wealth of data from various states that gave concrete evidence to the problem, Hanlon began fighting back.
His findings in the Missouri study made their way to the state supreme court in 2012. The justices ruled that trial judges were violating the Constitution by appointing the state’s public defenders to cases they couldn’t adequately represent.
It was the first big victory for Hanlon as he set forth to reform the system.
“Public defenders in Missouri have an enormous lever to force reform,” Hanlon said. “First by reforming themselves. And second, by reforming the criminal justice system and insisting that they will no longer violate ethical rules and violate the Constitution by taking more cases than they can handle with reasonable confidence.”
State supreme courts in Florida and Massachusetts have issued similar rulings.
Now, Hanlon is taking his extensive data to U.S. Congress.
Working with Rep. Ted Deutch, D-Florida, Hanlon hopes to create a more uniform approach to the public defense system at the federal level.
He’s also working with various partners, including the RAND Corporation and the National Center for State Courts, to conduct a meta-study to provide updated caseload standards.
Using the Delphi Method, a rigorously tested methodology for needs analysis, Hanlon plans to break down the number of working hours needed to adequately represent each case type. A murder or high felony, he says as an example, will require more work than a probation violation.
Once a consensus is reached, those caseload standards will be added to the Ensuring Quality Access To Legal Defense (EQUAL) Act, authored by Rep. Deutch. [The bill was originally introduced by then-Sen. Kamala Harris in 2019. Harris was since elected vice president of the United States.]
The bill would provide federal standards for reasonably effective assistance of counsel, updated caseload standards, and provide $1.2 billion in funding for state and local governments to fix the broken system.
But, Hanlon is quick to point out, that money would come with stipulations. In order to qualify for funds, jurisdictions would have to agree to shrink their misdemeanor dockets and stop criminalizing issues of poverty, homelessness, and mental illness; reform their “draconian sentences”; and provide reliable data such as timekeeping, caseloads, and case resolution.
The bill has currently been introduced to Congress and remains in the House Judiciary Committee.
Though the cogs of Congress can move slowly, Hanlon remains patient. He’s been fighting for this reform for the past decade, after all.
“It took us 50 years to dig this hole and we’re not going to get out of it overnight,” he said.
A ‘Holistic’ Approach
As the EQUAL Defense Act now works its way through Congress, leaders in Harris County, Texas have taken their own approach to reform.
Until recently, judges would appoint counsel for indigent defendants by hand-picking lawyers who would then provide donations to the judges’ election campaigns. The creation of a dedicated public defender’s office is helping to make that corrupt practice a thing of the past.
Now the Harris County Public Defender’s Office has hundreds of staff representing the county’s most vulnerable, using a holistic approach that provides services both in and out of the courtroom.
“We’re a big office that does many different things. And that’s a bit unusual, at least in the scope of public defender offices in the country,” said Alex Bunin, the office’s chief public defender who’s leading those efforts.
Bunin took charge shortly after the office’s creation in 2010, at the time of questionable campaign donations and when the system paid appointed attorneys per appearance and not work done on a case. The office grew over the years, but it wasn’t until 2018 when Democrats swept the local elections that it finally began to reach its necessary capacity.
County Judge Lina Hidalgo, a first-term Democrat, and the Democrat-majority commissioners court pumped millions into the office to hire more staff and provide pay parity with the district attorney’s office.
That support goes beyond the courtroom, too.
The office is unique in that it has a holistic services division that provides help for people outside of their legal case. People can turn to the office to have their records cleared, when dealing with family law matters, or if they need help with drug treatment or mental health.
Bunin said those resources are important in addressing the root problems in someone’s life that could ultimately lead them back to the courtroom, such as a lack of stable housing, or difficulty connecting with needed social services.
“If you don’t have a place to live, that’s why you’re going to get caught for trespassing,” Bunin said.
In fact, research by the RAND Corporation found that holistic defense services offered by Bronx Defenders led to better case results for their clients.
When it comes to reforming the public defense system, Bunin said his office has benefitted from the support of the commissioners court, which ultimately decides budgets for all county departments. But he’s aware that given the current system, he’ll always be tied to the political nature of the court.
Instead, he’d like to see an independent commission in charge of funding, whether on the state or federal level, that isn’t tied to the whims of politicians.
For now, though, he’ll let the data from the office speak volumes about the work being done. Two independent studies on the office done by the Council of State Governments Justice Center and the Meadows Foundation examined that data and have shown the importance of its work.
“They found that we are taking a higher percentage of cases to trial, we are winning more cases, and we are getting more dismissals,” Bunin said. “Those are the kind of measures that can give you an indication that the result of our work is an improvement on the system.”
‘I’m Gonna Make It’
In San Francisco County, where Kenneth Humphrey was arrested, its public defender office, too, benefits from county leaders who believe in the importance of a strong public defense system.
After languishing in jail for nearly a year, Humphrey was finally released in May 2018, almost a year to the day after his arrest. As promised, his attorney Anita Nabha fought for his release for months, long after the appeals court ruling that no one can be held in jail because they can’t pay cash bail. After all, little stops Californians from leaving jail before trial if they have cash on hand. There’s an irony in the Humphrey Decision that thousands of people were released on cash bail while the courts struggled with the decision to release Humphrey himself.
On that sunny May afternoon, Humphrey walked out of the San Francisco Jail in a red blazer and a checkered shirt, with a beaming smile.
“I didn’t think it was gonna happen,” he told a crowd of reporters with Nabha at his side. “I thought I was never gonna see the streets again.”
He added: “I feel good. I think I’m gonna make it.”
After his release, he spent weeks in a residential recovery center for seniors, a show of good faith to the judges and prosecutors that he could abide by the conditions of his release. As the weeks passed, Nabha filed motions to lessen those restrictions.
Today, Humphrey is living with his longtime partner away from San Francisco. He keeps in close contact with Nabha and has attended all of his court dates. He’s still awaiting trial for his case that ultimately led to the landmark Humphrey Decision. Due to the backlog of cases caused by the pandemic, no trial date has been set.
Occasionally, Nabha will send him a box of face masks or the occasional grocery card. Recently, he told her, he had eye surgery to repair cataracts in both eyes. Nabha was shocked, unaware he suffered with vision problems. If he was still in jail, he’d likely be dealing with those problems, Nabha said, since cataract surgery is an elective surgery, according to the state.
Instead, Humphrey has clear vision moving forward.
Just the other day he stared out his window and, for the first time, watched the slow-moving waters of a nearby river flow by.
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