The 2023 National Public Defense Workload Study (NPDWS) produced evidence-based standards to help public defense providers determine whether they have enough attorneys to provide each of their clients with effective representation. But the study is complex, and applying the standards can be confusing. To address this challenge, the Deason Criminal Justice Reform Center has published a new online resource that makes it easier for policymakers, researchers, and providers to apply the NPDWS standards.
The National Public Defense Workload Standards
For nearly 50 years, public defense providers relied on the 1973 National Advisory Commission
on Criminal Justice Standards and Goals (NAC) to determine how many cases they could
handle. The NAC standards lacked any evidentiary basis and were widely criticized as grossly
underestimating the time needed for effective and ethical representation.
In 2023, the RAND Corporation, the American Bar Association Standing Committee on Legal
Aid and Indigent Defense, the National Center for State Courts, and Stephen F. Hanlon
produced the National Public Defense Workload Study (NPDWS). The study quantifies the
attorney time needed to provide reasonably effective assistance of counsel across 11 types of
adult criminal cases.
The NAC standards drew no distinction between defending a burglary and a homicide. By
contrast, the detailed NPDWS standards reflect the complexities of modern public defense.
Consistent with both intuition and practice, the NPDWS anticipates that less serious cases take,
on average, less time, and more serious cases take, on average, more time.
The NPDWS standards thus help answer a simple but critical question: Do we have too many
cases?
New Resource for Determining Constitutional Workloads
While the NPDWS is comprehensive, it is challenging to apply. So, the Deason Center has
published a new online resource to guide providers, policymakers, and researchers through this
process in five steps:
The Deason Center’s web tool also provides illustrations, examples, and answers to frequently asked questions. In short, it translates the NPDWS into a practical roadmap.
“[P]ublic defenders [are] never going to cry uncle. They’re never going to tap out. … So we’re trying to train ourselves to put our hands down and say no, and really look at our obligations to our current clients right here, right now. So, the study was fantastic for us. Our expert advice was fantastic to support the changes that we were making[. T]his toolkit will be equally helpful.” — Shannon Wilson, Public Defender of Marion County Executive Director
Courts have repeatedly recognized that public defense providers must decline cases they cannot ethically handle.
In Iowa, the Supreme Court held that public defense providers are entitled to discretion in determining their ethical limits. Thus, they may decline to accept new cases when necessary to provide their current clients with effective representation. Instructing that district courts should be “highly deferential” in allowing public defense providers to address “temporary overload,” the Court stated “the dissents, like the district court, treat the availability of replacement counsel as relevant to whether a local public defender may return a case in the first instance. It is not.”
In Wyoming, the Supreme Court held that the state’s Public Defender Act empowers a public defender to decline an appointment “if it will result in a violation of the attorney’s ethical obligations, and it is contrary to the Sixth Amendment’s guarantee.”
In Oregon, a court held that public defense providers retain the right to decline cases for ethical reasons without facing retaliation.
Applying the NPDWS to determine attorney staffing needs can help providers avoid disruptive case refusals. Instead, defenders can craft budget and staffing requests that reflect the actual time necessary for the cases – and clients – the office will be asked to defend.
The National Public Defense Workload Study Webpage is available at: https://bit.ly/PDworkloads.