who are at-risk for the lengthiest incarceration or death sentences.
Recommendations — Causes Of Excessive Caseloads 1. Offenses that do not involve a signifi- cant risk to public safety should be de- criminalized. As the Supreme Court observed in Argersinger , “[o]ne partial solution to the problem of minor offenses may well be to re- move them from the court system.” 127 Many misdemeanor crimes do not involve significant risks to public safety, yet they result in high numbers of arrests, prosecutions, and peo- ple in jail. In fact, many do not involve any risk to public safety. The criminal justice system would operate far more efficiently if these crimes were downgraded to civil offenses. The state of Hawaii has undertaken a comprehensive effort “to make resolution of minor criminal offenses, including traffic violations, as simple as possible for the average cit- izen and to ensure that police, prosecutor, and judicial re- sources are focused on the most serious criminal offenses.” 128 The legislature passed an act requiring the Legislative Reference Bureau, a non-partisan governmen- tal research institution, “to identify minor criminal offenses for which typically only a fine is imposed and which may be decriminalized without undermining the ability of gov- ernment to enforce laws within its jurisdiction.” 129 The Leg- islative Reference Bureau published the report entitled “Decriminalization of Nonserious Offenses: A Plan of Ac- tion,” in January 2005. 130 The report found that “numerous criminal offenses remain on the books outside the Penal Code that are routinely dis- posed of by a fine but which, because they are technically criminal, require at least one court appearance and all of the time and expense that goes with it. Some of these are traffic offenses but many are offenses that have become ar- cane, sometimes perceived as being irrelevant with the pas- sage of time.” 131 The report recommended identifying and considering for decriminalization “those offenses that, despite the possibil- ity of serious penalties, are routinely and consistently being disposed of with fines.” 132 In the 2008 legislative session, the Hawaii legislature, following the recommendations of the report, passed a law decriminalizing, among other things, a number of agricultural and conservation-related offenses, as well as transportation and boating offenses. 133 The legislature also established a procedure for proposing the decriminalization of other offenses in the future, 134 and it is expected that additional statutes will be reviewed in coming legislative sessions. Similarly, the Massachusetts legislature, in response to the rising costs of indigent defense services, established a com- mission “to identify all violations of the general laws that are currently classified as a misdemeanor,” determine how often each such law is charged, and determine how the cases are re- solved. 135 Based upon this information, the commission is to
A Cook County defender reported that there is undoubtedly a choice to prioritize serious felonies. The office has a spe- cialty division for homicide cases in which caseloads are closely controlled. The misdemeanor caseload, however, is more than five times the national standard. In Allegheny County, Pennsylvania, one lawyer observed that a felony is more likely to go to trial than a misde- meanor. Another attorney in the office told a site team member that, with as many cases as they have, they have to set priorities, and they are going to be “more concerned about the guy going up the river than one looking at pro- bation.” A supervising defender in Missouri, whose 19 lawyers handled 3,487 cases in the past year, bluntly re- ported, “The clients who are cheated attorney time are those with misdemeanors or lower-grade felonies.” 121 When budgets are cut, misdemeanor public defense is often among the first services to be adversely affected. In Atlanta, for example, when the city faced a shortfall, among the first cuts was the city court’s defender. The Atlanta City Public Defender Office, which handles the low level city court cases, was already overburdened. In 2007, the office had 20 lawyers who together represented clients in about 21,000 cases (1,050 cases per attorney). 122 After budget cuts, the director reported that in addition to having to lay off six lawyers, four other attorneys had resigned, leaving her with 10 attorneys to handle an estimated 24,000 cases this year (2,400 per attorney, or six times the national standards). Ac- cording to press reports, additional cuts may require reduc- tion to only seven attorneys. These cuts would bring caseloads to over 3,400 per lawyer or more than eight times the national standards. Each lawyer would have to handle more than 13 cases each work day. The defender observed, “It’s an unfortunate situation that because of the city’s budget difficulties, we have to take our share.” 123 Budget cuts also often lead to the increased use of flat-fee contracts for public defense services. A flat-fee contract is one in which a defender receives a fixed amount of money to handle a percentage or all of the public defense cases in a jurisdiction or court, or a defender is given a flat-fee per case without limit on the number of cases the defender can accept (or a limit that exceeds national standards). 124 Re- cently, the use of flat-fee contracts for public defense serv- ices has expanded dramatically. 125 A report in California noted that “[c]ontract defenders are the primary provider of indigent felony and misdemeanor representation in 24 counties (41 percent). … The amount of compensation af- forded by these contracts is often based upon a fixed fee per case or a flat-fee for the expected annual caseload.” 126 Flat-fee contracts put enormous pressures on defenders, particularly when the caseload rises above expected levels and the defender does not have access to additional re- sources to handle the increase. The defender then is forced to decide that some cases will receive little or no attention, creating a conflict of interest.
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Problems
The Terrible Toll of America’s Broken Misdemeanor Courts
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