In an opinion piece for the Washington Post in September, Orleans Public Defender Tina Peng wrote, “because we don’t have enough lawyers on staff, the week I passed the bar in 2013, I began representing people facing mandatory life sentences on felony charges.” Her caseload is double the maximum recommended by the American Bar Association; high turnover means after two years on the job, she’s one of the more senior attorneys on staff.
New Orleans is not alone. In the last couple years the Department of Justice has intervened in lawsuits on behalf of poor defendants in Washington, New York, Pennsylvania, and Georgia.
600 - Fresno, CA
500 - Florida
160 - New Hampshire*
Yet in New Hampshire, the public defender program is thriving. The New Hampshire Public Defender’s 115 or so attorneys average the equivalent of 160 felonies a year: ten cases above the ABA’s maximum recommended caseload of 150. In New Orleans, Tina Peng carries twice that. In Fresno, California, public defenders carry four times the ABA maximum recommended caseload.
Things Are Better, In NH
There’s nothing plush about the New Hampshire Public Defender. In Concord, attorney offices are outfitted with the kind of folding desks you expect at a PTA bake sale. In Littleton, a conference table with broken legs is supported by cement blocks and pieces of wood.
If you are facing possible prison time, these might not be comforting details to find at your attorney’s office. But in New Hampshire, poor defendants’ attorneys are likely to be better trained and able to commit more time to each case than in most other states.
“I didn’t want to work anywhere else,” Ben Shiffelbein explained during a five-week attorney bootcamp NHPD holds each year for new recruits. Shifflebein is a recent graduate of Georgetown Law with light brown hair and all the eagerness of a lawyer four weeks into a brand-new job. One of hundreds of law school grads who apply to work at NHPD each year, Shiffelbein interned at NHPD during law school, and clerked at the Maryland’s Public Defender after that. “Attorneys here love their jobs. Retention here is better than it is in other places.”
10%: Annual public defender turnover in New Hampshire.
People accused of a crime are probably lawmakers’ least sympathetic constituents. With limited budgets and volatile legislatures, few states have been able to adequately fund public defenders – even though their services fulfill the state’s constitutional duty to the accused.
What N.H. Gets Right
New Hampshire’s program has two elements that set it apart.
First, the program has some of the nation’s most enforceable caseload limits. Second, the program has – in a way – a lobbyist: an independent government body, respected by lawmakers, which can advocate for it during the budget process.
Without those safeguards, New Hampshire might look more like Missouri. There, the state’s Supreme Court affirmed the Public Defender’s right to refuse cases. Almost immediately, the legislature passed a law making it harder for the state agency to do so. “So we’re back to where we’ve always been,” says that program’s director, Michael Barrett, “which is way too many cases, and not enough lawyers.”
Two Degrees Of Separation
Unlike in Missouri and many other states, NHPD is a nonprofit. And, it is overseen by a body few states have anymore: a Judicial Council. These 25 appointed judges, lawyers and citizens negotiate the public defenders’ $20 million a year contract with the state.
It’s Keating who serves as the independent advocate for public defense in New Hampshire that Michael Barrett in Missouri might envy.
At budget time every two years, Keating puts out a request for proposals -- any organization can apply to provide public defense services for the state. NHPD is usually the only applicant. A Judicial Council subcommittee lays out all of the state’s expectations from the NHPD, and the two organizations agree on how much those services will cost. Then, Keating makes the case to lawmakers for why that funding is necessary.
There is a clause in NHPD's contract that allows the organization to refuse new cases when attorney caseloads get too high. It’s been described by scholars as one of the most binding caseload limits in the nation. When NH public defenders get too busy, Keating explains, “those cases have to spill out to private attorneys. And we pay private attorneys more than we pay the public defender program to handle these cases.” This creates an incentive for lawmakers to make sure NHPD has enough staff attorneys.
When lawyers take their oath, they promise to provide competent and diligent representation for their clients. Norm Lefstein is an expert in public defense, and helps write national standards for the field. “What we see all over the United States, beside the denial of the Sixth Amendment right to counsel,” says Lefstein, “are lawyers who are thrust into a system provided with far too many cases and inevitably are violating their duty as a member of the legal profession.” Lefstein says a driving factor is the “absence of an effective lobbying force on behalf of public defense.”
As national scrutiny of criminal defense intensifies across the nation, states might look to New Hampshire for inspiration -- at least when it comes to getting poor defendants access to justice.