ANNAPOLIS (Dec. 19, 2016)—In Maryland, the county you are charged in may determine the quality of representation you receive from your public defender, according to legal experts and public defenders.
Throughout the state's suburban and rural areas, public defenders grouped into 12 districts are juggling many more clients than legal experts say they can effectively represent. While the state has set non-binding caseload limits for each region, certain districts exceed these standards far more than others.
As a result, indigent defendants in those jurisdictions run a higher risk of receiving ineffective counsel, legal experts and public defenders say. This creates an unequal justice system, with some clients enjoying a higher quality of representation than others.
"This is an ongoing problem," said Delegate Kathleen Dumais, vice chair of the House Judiciary Committee. "Some counties have fewer public defenders, and as a result their caseloads can be difficult because they may be handling more than they should."
The caseload standards, which the state adopted in 2005, aim to ensure effective counsel and vary according to region (urban, rural or suburban). Though every Office of the Public Defender district struggles to keep attorney caseloads below their respective limits, some exceed their targeted numbers by a greater rate than others, according to statistics published by the public defender's office.
Attorneys in the Upper Shore region, which constitutes Caroline, Cecil, Kent, Queen Anne's and Talbot counties, exceeded their circuit court caseload standard by an average of 282 cases per attorney in 2014, the most recent year for which data is available. That's 148 percent above the circuit court caseload standard for the state's rural regions, the public defender's office reported.
Attorneys in Prince George's County exceeded their circuit caseload standard by an average of 30 cases per attorney in 2014; 21 percent above the circuit caseload standard for suburban regions, according to public defender's office statistics.
"The concept of uneven justice between counties is pretty common," said Shawn Armbrust, executive director of the Mid-Atlantic Innocence Project, a nonprofit organization that aims to overturn and prevent wrongful convictions.
One explanation for the disparity is the distribution of alleged crime, said Ricardo Flores, director of government relations for the Office of the Public Defender. The number and type of crime committed in each county fluctuates from year to year, meaning average attorney caseloads do, too.
"That's not anything anyone can control," Flores said in an interview with the University of Maryland's Capital News Service.
One example is a recent population shift away from Baltimore City and into Prince George's County and Southern Maryland, which the public defender's office rearranged resources to account for, Flores said.
"There have been shifts in our personnel to help alleviate caseload burdens produced because of those changes," Flores said.
However, these efforts can be stunted by public defenders who are unable or unwilling to be relocated.
"There's a certain limit because people may or may not be willing to transport themselves or travel to further offices in other counties or places in the state," Flores said.
'A processing system'
Regardless of their location, Office of the Public Defender districts across the state are struggling to keep caseloads low.
Caseload standards were met by just 25 percent of district offices in 2014 (the most recent year data is available). That proportion is not projected to change in 2016, according to statistics published by the public defender's office.
No district office met the standards in both circuit and district court.
This excessive volume of cases exacerbates the challenges of an already difficult job, lawmakers and public defenders say.
"There's an inherent problem in an enormous disparity of resources between the prosecution and the defense," said Michele Nethercott, director of the University of Baltimore Innocence Project Clinic, a legal clinic that helps secure exonerations for those wrongfully convicted in Maryland.
Public defenders face an intrinsic discrepancy in investigative resources, Nethercott said. While state prosecutors have access to police officers and the power of subpoena, public defenders must hire their own investigators and persuade witnesses to testify of their own accord.
Add to that inadequate funding, and it's almost impossible for public defenders to do their job, Nethercott said.
"There's a crisis in indigent defense," said Nethercott, who became a public defender herself in 1988. "There just aren't enough resources to get caseloads for attorneys to the place they need to be to get the appropriate amount of attention."
By being asked to represent far more clients than they can efficiently counsel, public defenders become unable to represent the accused efficiently, legal experts say.
"The constitutional right to effective assistance of counsel requires limitations on client representation," said Douglas Colbert, a professor of law at the University of Maryland who specializes in public defense. "Without a mechanism for lawyers to prevent their caseloads from becoming too high, the risk leads to having a warm body next to an accused rather than a lawyer zealously defending that person."
"It has hit this brutal level where you just cannot give proper representation to people," said Colin Starger, co-director of the University of Baltimore's Pretrial Justice Clinic, a legal clinic that works to aid poor people accused of crimes in Baltimore City. "There's less human dignity, less contact, less counseling.
"It moves on the spectrum away from a justice system towards one that's a processing system."
'Not unique to Maryland'
Maryland isn't the only state to struggle with overworking of public defenders.
Public defender agencies across the nation are underfunded and understaffed, disadvantaging poor defendants and jeopardizing the constitutional right to legal counsel, legal experts say.
"This is not unique to Maryland," Nethercott said. "It's a problem throughout the country."
Last month, a New Mexico district court judge held the state's top public defender, Bennett Baur, in contempt of court after Baur said the agency could not ethically take on a handful of cases without risking ineffective counsel.
In January, New Orleans's top defender, Derwyn Bunton, began refusing serious felony cases, also citing overworked attorneys.
"The underfunding problem has reached such crisis proportions in recent years that you're seeing a few brave public defenders take the extraordinary step of refusing to take more cases," said Starger.
'Perennially underfunded'
The Maryland Office of the Public Defender's budget increased by $5 million in fiscal year 2017, a 5.1 percent increase from fiscal year 2016, according to a Department of Legislative Services analysis of the Maryland Executive Budget.
"Under Governor Hogan's leadership, the Office of the Public Defender has seen a nearly 5 percent increase in funding, and will remain a priority going forward," Shareese N. DeLeaver Churchill, press secretary for Gov. Larry Hogan, said in a statement. "The Office of the Public Defender plays a critical role in our state, and the governor is committed to making sure they are effectively serving the people of Maryland."
However, the agency remains critically underfunded, some lawmakers and public defenders say.
"Unfortunately, OPD has been given less than they need," Dumais said. "It's hard to be a public defender and be handed the file the day of trial and only have a few minutes to talk to your client before you need to make a representation in court."
Rounds of cuts under Gov. Martin O'Malley and later, Hogan, have left the agency strapped for cash, Flores said.
"The public defender is perennially underfunded," said Starger. "They're always having to make difficult allocation of funding decisions."
Though the budget has grown, the number of people needing representation has grown faster, Flores said.
"We have been forced to do the same or more amount of work with the same or less resources," Flores added.
The lack of enough funding has resulted in fewer public defenders and thus, higher caseloads, lawmakers and experts say.
Though the Office of the Public Defender "puts on a strong case in the appropriations committee," Dumais said, lawmakers have shirked from allocating the agency more money.
A possible reason behind their reluctance is the perception that public defenders are representing clients who don't qualify for public counsel, Dumais said.
"The undercurrent to some of the pushback to funding is members of the General Assembly think the OPD doesn't screen well enough and is representing individuals that should not be qualified for their representation," Dumais said.
However, "public defenders don't have the sense that it's a major problem," Dumais said.
Steps forward
Beyond providing more funding, there are other steps lawmakers could take to alleviate and even up caseloads across the state, lawmakers, legal experts and agency officials said.
For instance, the Legislature could alter the penalties for some crimes, Dumais said.
Because public defenders only represent clients who could be charged with incarceration, removing the possibility of jail time would lighten the burden on attorneys.
Dumais co-sponsored one such bill in the 2016 legislative session. If passed into law, HB347 would have taken away the possibility of incarceration as a penalty for driving on a suspended license; meaning those charged with it would not qualify for representation by a public defender in court. The bill did not make it out of the House judiciary committee.
"That kind of thing and other sentence reductions make cases go more smoothly," Dumais said.
Another potential solution is the subcontracting of private attorneys.
Creation of a public-private partnership between public defenders' offices and the private bar would allow private attorneys to take on cases that exceed the caseload standards, resulting in a "more manageable caseload" for public defenders, Flores said.
"The private sector receives a business opportunity, and Maryland benefits by ensuring meaningful representation and ultimately receiving taxable income from the private bar," Flores said.
The public defender's office introduced a bill that would authorize and fund such a partnership in 2016 and 2015. Sponsored by Delegate C.T. Wilson in 2016, HB1582 "is just a couple of lines" but would have lowered caseloads drastically, Flores said.
However, it was not passed into law; instead, the bill died after its first reading.
"In order for the bill to be implemented, there would have to be substantial appropriations," Flores said. "From the perspective of the budget as a whole, it's not much, but from the kitchen table, it's billions of dollars."
The state's Department of Legislative Services estimates the bill could require an increase of $1.8 billion in expenditures.
The bill is expected to be reintroduced in the upcoming legislative session, which begins Jan. 11, Flores said.
'The bigger price'
By allowing unequal and excessive caseloads to go unaddressed, Maryland risks compromising the fair administration of justice, some lawmakers, legal experts and public defenders say.
"It's shortsighted to underfund fundamental justice, because ultimately the larger community pays the bigger price of alienating and marginalizing a large population," Colbert said. "It's in all of our interest to ensure necessary funding so people believe our system administers fair and equal justice."
For the state's public defenders to provide indigent clients with effective counsel, help—in whatever form—must be provided to keep their caseloads under the caseload standard, no matter their region.
"The constitutional right to counsel is very important," Dumais said. "Caseloads need to be taken into account so public defenders have the proper time to represent their client."