viction for each defendant and advising the defendant on these consequences. In a number of jurisdictions, collateral consequences are not just located in the state criminal statutes, but also in various administrative codes, as well as county and city ordinances. Defense attorneys are often un- familiar with these laws and the research to uncover poten- tial consequences for the clients is, as a result, time intensive. Finding them may require consulting with attor- neys who specialize in areas in which collateral conse- quences arise, such as housing, immigration, employment, and benefits. This time must factor into the number of cases the defense attorney is assigned. 5. Early disposition projects should not be ex- empted from caseload limits. There is nothing in the national standards that permits an ex- ception to ethical obligations, performance standards, or the national caseload standards for early disposition projects. To the contrary, the Commentary to the ABA Ten Principles states clearly: “Counsel’s workload … should never be so large as to interfere with the rendering of quality representa- tion or lead to the breach of ethical obligations. … National caseload standards should in no event be exceeded.” 189 While efforts to assist defendants in accessing social services and resolving cases quickly are to be applauded, they cannot come at the expense of effective representation.
Despite the critical nature of these support services to their work, in a number of jurisdictions, misdemeanor de- fenders do not have regular access to legal research, in- vestigators, experts, or social workers. In Washington State, for example:
In Lower Kittitas District Court, by contract the court sets aside $5,000 per year for these services, but nine months into the new contract, the court was not aware of any requests for these funds. Grant County contract defenders did not make any requests for expert services in a two-year period in which they handled 7,700 cases. In the same pe- riod, they made only five investigation requests. Another Washington defender who worked in four counties noted that courts discourage the use of in- vestigators. The lawyer reported using an investi- gator in only one case and an expert in only two.
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An Oklahoma defender reported that the use of investiga- tors required approval from state headquarters, but that it is “[n]ot even worth asking.” And a supervising attorney from Chicago said at the New York conference that, due to excessive caseloads in Cook County, the public de- fenders “don’t have time to do research and investigation. I get calls all day from lawyers who don’t have time to punch up Lexis.” Among the survey respondents, 11 percent did not have investigation services available at all, and two percent reported having investigation only if they paid for the services out of their salary. The lack of mental health evaluation assistance for mis- demeanor defenders is particularly problematic. A sig- nificant percentage of misdemeanor defendants are mentally ill and end up in jail because there are inade- quate mental health services available. 190 A Justice De- partment study found that in 2005, 64 percent of state jail inmates had a mental health problem. Compounding that, 49 percent of inmates in local jails were found to have both a mental health problem and substance de- pendence or abuse. 191 Despite the obvious utility of providing mental health support services to assist defenders in identifying and addressing clients’ mental health issues, 48 percent of respondents reported no social work resources at all, with two percent reporting that they could have social work assistance, but only if they paid for it out of their salary. An Oregon defender wrote that one of the great- est challenges in misdemeanor practice is “[c]lients with mental health issues that are aggravated by being in the system. There is no point to them being in the system for such minor offenses when it just makes them worse.”
“I get calls all day from lawyers who don’t have time to punch up Lexis.”
— A supervising attorney in Chicago.
Misdemeanor Defenders Lack Access to Support Services To defend a client effectively, certain support services, such as the access to computers and legal research to prepare and file motions, are essential. Investigation services and expert witnesses can help defense attorneys to understand fully the facts of a case, and, depending on the case, are critical to determining what occurred and whether the defendant is properly charged. Social workers can help assess mental health and addiction needs, which can assist defenders in evaluating the in- tentions of their client as well as in advocating for di- version or probation.
Minor Crimes, Massive Waste
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