By Seth Ogilvie, Idaho Reports
New rules addressing public defense in Idaho could have huge implications on the ability of indigent Idahoans to receive a fair trial and the state to fend off a lawsuit from the ACLU.
On Monday, the Senate Judiciary and Rules Committee accepted new public defender workload standards. The change would cap public defender workloads at two active capital cases at a time, as well as 210 non–capital felonies, 520 misdemeanor cases, 232 juvenile cases, 608 civil cases, or 35 non–capital substantive appeal cases a year.
“There are approximately 16 states with standards,” said Kathleen J. Elliott, Executive Director of the Idaho State Public Defense Commission. “Idaho is a leader and one of only a few states that conducted an actual study.”
The study assumes 2,080 work hours in a year, according to Elliot. The math on 2,080 hours paints an interesting picture. That would mean public defenders would be able to work a full 40 hour week worth of casework, for 52 out of the 52 weeks in a year. They would not have time for vacation or sick time. That number leaves no time for travel or administrative and clerical work they may be responsible for, without exceeding a typical 40 hour work week. They would be able to work full time on cases every week of the year and then do every other job requirement on top of these hours and still meet the expectations of the survey.
In a nutshell, that means public defenders who hit the maximum on these standards would take no vacation and no sick time, or they work far more than 40 hours a week.
“It needs to be an Idaho-based system, so we did the Idaho study,” said Chairman Todd Lakey, R-Nampa. “This may not be the final, end-all answer, but it’s a good start, and it substantially increases the standards, which again means we’ve got to fund it.”
“I’m a bit disturbed when I hear we can’t afford to comply with the constitution,” said Sen. Mark Nye, D-Pocatello, upon learning of possible problems funding the new guidelines.
The Idaho Association of Counties had previously opposed the standards. “Counties have born the brunt of financing this system,” said executive director Seth Grigg. On Monday, though, the association remained neutral “because compliance with the standards is tied to funding from the state.”
The Public Defense Commission standards allow for a higher caseload than the National Advisory Commission on Criminal Justice Standards, or NAC, standards. These standards were created in the seventies, long before advanced forensics and audio and video recordings became prevalent in trials. These modern pieces of evidence require more extended case hours. NAC standards permit defending attorneys no more than 150 felonies, 400 misdemeanors, or 200 juvenile court cases.
“It’s going to result in ongoing Sixth Amendment rights violation for people who are charged with crimes, and this probably also means more people in prison,” said Kathy Griesmyer of ACLU Idaho. “It’s this assembly line of, you meet your client, and you plead them out because that’s all you have time for.”
The American Bar Association says NAC caseload standards “should in no event be exceeded.” Despite this warning, the Idaho standards allow for ongoing workloads for attorneys in Idaho that go beyond this standard.
That doesn’t worry Lakey. “Their numbers weren’t generated by an empirical study,” he said, referring to the NAC standards. “It was people sitting in a room at a hotel at a conference coming up with, ‘Here’s what I think it should be.’”
According to 2018 caseload reports, over 50 percent of indigent cases in Idaho were handled by attorneys with caseloads exceeding the PDC standard, and attorneys violating the NAC standard handled almost 90% of cases.
A December motion made by the ACLU in Tucker v. Idaho states it bluntly: “The undisputed factual data makes it plain that, at best, no more than half of indigent defendants in Idaho are being assigned to defending attorneys who are not overextended by caseloads that force them to triage individual cases. The other half of the cases, or more, are being handled by attorneys who are forced to triage and prioritize cases due to excessive caseloads.”
The 2018 reports don’t only reveal a system that surpasses the PDC standards but highlights many individuals who exceed the limits. An attorney in Payette County, who resides in the judiciary committee’s Vice Chair Sen. Abby Lee’s district, reported handling 63 felony cases, 776 misdemeanor cases, 105 juvenile cases, 34 felony probation cases, 32 family law cases, and 71 misdemeanor probation cases.
Based on the PDC proposed caseload standards and 2018 reports, Idaho would need around 28 new attorneys added into the system to meet its PDC requirements. If Idaho were to adopt the “not to be exceeded” NAC standards, they would need to hire around 75 new attorneys.
“The numbers that were proposed were adjusted to diminish the number of attorneys that are needed,” said Griesmeyer. “Despite knowing that, they would still be excessively high caseloads that attorneys would be asked to take on.”
These numbers are likely not even the full picture. Thirty-eight counties allow defense attorneys to have a private practice, adding even more work on top of their indigent defense caseloads. “I mean, the study was what it was and it’s still three times the standards,” said Lakey. “And everybody’s nervous about how we’re gonna pay for it.”
Time is of the utmost importance for the state, both for the people currently in the system and the looming litigation. “We cannot procrastinate on this,” said Elliott. “We need to make ongoing improvements to the system.”
The adoption of these rules sits in the shadow of the ACLU lawsuit against the State of Idaho, meaning the real PDC standards may be set in a courtroom, not in the legislature.
“If the state was not interested in having this lawsuit, they should be significantly considering the recommended suggestions by the ACLU, and we’ll be asking a judge to decide,” said Griesmyer. “It’s not a threat, but just a really encouraged suggestion.”
