PROVIDENCE, R.I. — A national study of the Rhode Island Public Defenders' Office has found "profound and dramatic understaffing" that leaves lawyers laboring under excessive workloads and unable to dedicate the recommended time to many cases, including those in which defendants are facing up to life behind bars.
The study — named The Rhode Island Project: A Study of the Rhode Island Public Defender System and Attorney Workload Standards — documents staggering caseloads that cause public defenders to sometimes spend less than half the time on cases that is recommended under national standards.
"Meaningful representation can't happen when lawyers have too many cases," said Bonnie Hoffman, director of public defense reform and training at the National Association of Criminal Defense Lawyers. "The numbers tell us the attorneys don't have the time they should have to handle these cases."
The study, undertaken by the accounting firm BlumShapiro, the American Bar Association Standing Committee on Legal Aid and Indigent Defendants and NACDL, was conducted at the request of the state Public Defenders' Office.
"We've known for years and we've reported for years [in state budget documents] that we have these excessive caseloads," Rhode Island Public Defender Mary McElroy said.
Based on the data collected from October 2015 through April 2016 by the state's 49 public defenders, the study concludes that 136 full-time lawyers would be needed to provide the "necessary minimum level of representation" needed to handle the 15,000 or so new cases the office sees each year.
"Despite the fact that they are considered a good system, they need to either cut their caseload by 64 percent or increase their staffing by 87 attorneys to meet their caseload," Hoffman said.
"It's not a good way to treat people in the system," McElroy agreed.
Since 1842, the Rhode Island Constitution has guaranteed the right to representation in state criminal prosecutions. In 1963, The U.S. Supreme Court ruled that people facing felony charges in state courts have a Constitutional right to representation at the state's expense. Two decades later, the high court specified that the Sixth Amendment right to counsel meant "reasonably effective assistance of counsel pursuant to prevailing professional norms," the study notes.
Asked if defendants' rights are being violated, McElroy responded "I don't know."
The Rhode Island Public Defenders' Office was established in 1941 and is believed to be the first statewide full-service such office in the nation. It represents indigent clients facing a range of charges from murder and serious felonies, to misdemeanors and juvenile delinquency matters, to cases in which parents face losing custody of their children.
Asked about clients' rights, Collin Geiselman, an assistant public defender and president of the Rhode Island Association of Criminal Defense Lawyers, said, "I know that the clients certainly feel that way." Based on standards recommended by the ABA, "yes," but it's not for lack of effort and dedication by state public defenders, he said.
Geiselman estimated that on any given day each trial lawyer in the office in Providence County Superior Court is juggling 60 to 70 cases and plus 10 to 15 capital cases, meaning their clients are facing up to life imprisonment for crimes such as murder, robbery, burglary, rape, and arson.
"Every day I feel like I'm trying to keep my head above water," said Geiselman, who has been with the office for 14-plus years.
Assistant Public Defender Susannah Cotter on typical day in the state's busiest courtroom, Courtroom 9 at the Licht Judicial Complex, fields drug cases, breaking and entering charges; domestic assault allegations; and a raft of other charges clients are facing.
The workload often leads to weekends and evenings spent at the office, as well as time at home.
"The awesomeness of the responsibility, it's very hard to turn off," Geiselman said.
Two more full-time lawyers and an investigator are expected to join the staff in the coming year, according to McElroy.
The study has the attention of the judiciary and state leaders.
“It is a very distressing report. The Public Defenders' Office in Rhode Island performs a valuable service in our criminal justice system and it does a good job. We are fortunate to have statewide coverage from the Public Defender," state Supreme Court Chief Justice Paul A. Suttell said in an email. "By and large, the office is very competent, but clearly it is understaffed. Every public defender in the country is probably understaffed but this report points to the urgent need to appoint more resources to that office in Rhode Island.”
House Speaker Nicholas Mattiello offered this response via email: “I respect the work provided by our public defenders, who have always provided excellent representation for their clients. I’m sure the information included in this study will be considered as the Governor makes her budget recommendations and will also be reviewed by the House in its budget deliberations in the coming months.”
President of the Senate Dominick J. Ruggerio also weighed in: “The Senate recognizes the importance of the Public Defender’s office and the unique challenges they face. They are the biggest criminal defense firm in the state. The employees are highly qualified and do an outstanding job on behalf of their clients. The office has been provided modest but steady increases in state funding over the past several years, and we will continue to review their funding as part of the budget process.”
David Ortiz, spokesman for Governor Raimondo, said change is in the works. "Adequate funding of Public Defenders' Office is crucial to the fair administration of the criminal justice system, and Governor Raimondo is committed to that goal. This administration has previously recommended increased funding for the Public Defender’s Office as part of our Justice Reinvestment initiative," Ortiz said in an email, referring to a packing of criminal justice laws past last sessions that are aimed at reforming the system.
Rhode Island is not alone in grappling with an overburdened public defense system. Indeed, it is a pervasive problem nationwide, according to a report undertaken for the ABA entitled Securing Reasonable Caseloads Ethics and Law in Public Defense.
High court rulings dictating that states pay for representation in criminal, juvenile and other matters are in essence an unfunded mandate.
In some states, the American Civil Liberties Union has sued over the excessive cases loads. When public defenders in Louisiana began to refuse cases, for example, the ACLU launched an unnsuccessful, accusing the state of violating defendants' right to counsel and due process.
The Supreme Judicial Court of Massachusetts, however, held in 2004 that defendants were being deprived of the right to representation under that state's Constitution due to the shortage of lawyers willing to accept indigent cases based on the low pay rate. The court ordered the release of defendants held for seven days without a lawyer as well as the dismissal of charges for defendants facing felonies without the assistance of a lawyer for 45 days. The next year the legislature made sweeping changes to improve services for indigent clients.
Rhode Island law governing public defenders dictates that they "shall" represent indigent clients, leaving its lawyer unable to turn away cases, McElroy said.
McElroy envisions legislative fixes that might model the federal system in which public defenders handle the bulk of indigent cases while others are assigned to private attorneys. Such a system would give more young lawyers a chance to gain experience, she said.
McElroy plans to reach out to the judiciary, prosecutors and police agencies to see what other measures can be taken to reduce caseloads.
"Can we cut out a bunch of cases without impacting public safety?" she said. "In my opinion, it's a multifaceted problem that needs a multifaceted solution."
Hoffman, of NACDL, says change is a must.
"When you don't fund your public defender system, the costs are tremendous," she said. "And it's not just the price of the defendants sitting in jail too many days."