U.S. Department of Justice Office of Justice Programs Bureau of Justice Statistics ----------------------------------------------------------------- This file is text only without graphics and many of the tables. A Zip archive of the tables in this report in spreadsheet format (.csv) and the full report including tables and graphics in .pdf format are available on BJS website at: http://www.bjs.gov/index.cfm?ty=pbdetail&iid=5923 ----------------------------------------------------------------- *************** Special Report *************** ****************************** State-Administered Indigent Defense Systems, 2013 ****************************** Suzanne M. Strong, Ph.D., BJS Statistician In 2013, 28 states and the District of Columbia had state- administered indigent defense programs for the delivery of criminal defense services. ***Footnote 1 The administration of indigent defense in the District of Columbia was handled primarily by the Public Defender Service (PDS). See Methodology***. State-administered indigent defense systems were either completely funded and administered by the state, or were funded by the state and county but administered by the state. In most states, one central office managed the delivery of all methods of state-administered indigent defense. Alaska, Colorado, the District of Columbia, and Rhode Island had two offices that administered indigent defense. Twenty-four states and the District of Columbia used multiple delivery methods to provide indigent defense and four states used one delivery method (appendix table 1). In 25 states and the District of Columbia public defenders were government employees. By law, states must provide legal defense to those who were charged with a criminal offense involving a possible loss of liberty and who were unable to afford an attorney. Many states authorized some form of cost recovery for providing legal defense to indigent clients. Some states charged an application fee prior to providing legal representation, while other states charged recoupment, where a client pays all or a portion of the costs associated with legal representation or support services. In 2013, 22 states and the District of Columbia charged indigent clients application fees, recoupment, or both (figure 1). ********************************************************** ************* HIGHLIGHTS ************* * Of the 28 states and the District of Columbia that had state- administered indigent defense systems in 2013-- --Twenty-seven states and the District of Columbia had either governmental or nongovernmental public defenders providing representation for indigent clients. --Eight states and the District of Columbia required indigent clients to pay both an application fee to receive representation and recoupment for legal services provided. --In nine states the governor appointed the chief executives of the indigent defense delivery system. --Six states reported fewer than 10 full-time equivalent investigators on staff for public defender offices. * Between 2007 and 2013, 16 of the 22 states with state- administered public defender offices increased the number of full-time equivalent litigating attorneys. * In 2013, state-administered systems closed an estimated 2,696,950 criminal, appellate, civil, and juvenile cases. ********************************************************** The Bureau of Justice Statistics’ (BJS) 2013 National Survey of Indigent Defense Systems (NSIDS) was the first census of all state- and county-administered indigent defense systems. It was also the first collection of data focusing on criminal defense and civil, juvenile, and appellate representation. This report combined governmental, conflict, and nongovernmental public defenders into one category. Unless otherwise noted, the categories included public defenders, contract counsel, and assigned or appointed counsel. States were able to delegate some or all of the responsibility of providing indigent defense to local jurisdictions or counties. This resulted in wide variability in how states supported indigent defense functions, such as developing standards, funding the system, determining educational and training requirements for attorneys, and managing and delivering indigent defense. Various organizations, including the American Bar Association, National Legal Aid and Defender Association, and National Juvenile Defender Center, have developed guidelines and standards for indigent defense systems. This report does not specifically address standards for any organizations. ********************************************************** ************************************* Types of indigent defense systems ************************************* In 1963, the United States Supreme Court ruled in Gideon v. Wainwright that states are required to provide counsel to indigent defendants accused of serious crimes under the Fourteenth Amendment to the U.S. Constitution. In 1967, the Supreme Court again ruled in In re: Gault that the same right to counsel applied to indigent juveniles in delinquency hearings. In addition, in 1972, the Supreme Court ruled in Argersinger v. Hamlin that the right to counsel also applies to any misdemeanor charges that include the potential loss of liberty. Some states extend the right to counsel to other hearings that may involve a loss of liberty, including extradition, involuntary mental health commitments, nonpayment of child support, and cases involving juveniles, such as child dependency, abuse, and neglect cases. Indigent defense systems provide representation using-- * governmental public defender office, which provides representation through publicly operated governmental offices where staff are government employees funded by the state or county governments. * governmental conflict public defender office, which provides representation in cases where legal conflicts exist through a publicly operated governmental office and where staff are government employees. * nongovernmental public defender office, which provides representation through written contracts between some governmental entity and a nonprofit entity. Staff are not government employees. * contract system, which provides representation through contracts or other agreements between a governmental entity and one or more private attorneys or law firms that operate for-profit. * assigned or appointed counsel system, which provides representation through individual attorneys or law firms. These attorneys are assigned or appointed on a case-by-case basis. ********************************************************** *********************************** Two-thirds of reported cases were closed by public defender offices *********************************** In 2013, state-administered indigent defense systems served an estimated 103,778,710 residents (table 1). The median number of cases closed per state was 75,560 (not shown in table). In 2013, public defenders closed 67% of cases, followed by assigned counsel (20%), contract counsel (13%), and conflict counsel (<1%) (appendix table 2). Eighty-two percent of the total caseload reported in 2013 could be tracked by case type (table 2). State-administered indigent defense systems closed mainly misdemeanor, noncapital felony, and civil cases. Of the reporting states, misdemeanor cases made up a majority of closed cases in four states, while felony cases made up the majority of closed cases in one state. Nearly a third of cases closed in New Jersey and Oregon (32% each) were civil cases. *************************************** State-administered indigent defense systems employed 10,520 full-time equivalent attorneys in 2013 *************************************** States that reported caseloads by type of case reported an estimated 10,520 full-time equivalent (FTE) litigating attorneys in 2013, ranging from a low of 40 in Rhode Island to a high of 1,620 in Maryland (table 3) *** Footnote 2 Respondents were asked to report full- and part-time attorneys, but the survey did not collect unit of count and may differ for assigned attorneys. See Methodology***. Overall, caseloads ranged from 50 cases for every FTE litigating attorney in Minnesota to 590 cases for every FTE litigating attorney in Arkansas. ***Footnote 3 This assumes that all cases and case types are evenly distributed across full-time equivalent (FTE) litigating attorneys. See Methodology***. Felony caseloads ranged from two cases for every FTE litigating attorney in Connecticut to 200 cases for every FTE litigating attorney in Arkansas. Misdemeanor caseloads ranged from 20 cases for every FTE litigating attorney in South Carolina to 290 cases for every FTE litigating attorney in Minnesota. *************************************** Seven states reported that attorneys could reject cases if they exceeded caseload limits *************************************** Twelve states and the District of Columbia had caseload limits for their attorneys in 2013 (figure 2). Ten states and the District of Columbia assigned an interim attorney to a case within 1 day of arrest, detention, or defendant’s request for an attorney. Nineteen states and the District of Columbia assigned a permanent attorney within 3 days. In 2013, 17 states and the District of Columbia reported that the same attorney represented a client from assignment through all stages of the proceedings, called vertical representation. Nineteen states and the District of Columbia maintained a guideline that an attorney be present at bail hearings or arraignment. Twenty-two states and the District of Columbia reported that it had a guideline for the attorney to advise defendants about any plea bargains at any stage of prosecution, with 17 states and the District of Columbia reporting that it was a mandatory guideline (appendix table 3). Most states reported that they required attorneys to be present at juvenile detention (23 states and the District of Columbia) and juvenile adjudication (25 states and the District of Columbia) hearings. Five states reported that they did not have guidelines regarding representation of juveniles at detention, and three states reported that they did not have guidelines for representation of juveniles at adjudication. *************************************** Eight states required indigent clients to pay an application fee and all or a portion of their legal fees *************************************** Eight states and the District of Columbia required the client to pay both an application fee and recoupment, where a client pays all or a portion of the costs associated with legal representation or support service (table 4). Four states required an application fee only. Application fees ranged from $10 in New Mexico to $212 in Arkansas. Ten states required payment for some portion of the client’s legal representation, but did not require an application fee, and six states did not require any fees. States reported their annual expenditures, personnel costs, and revenue received for fiscal year 2013. Expenditures included all recurring fixed and variable costs associated with the operation, management, and administration of indigent defense systems, including personnel costs. It did not include nonrecurring fixed capital costs, such as building construction and major equipment purchases. State-administered indigent defense systems spent more than $1 billion in 2013 (not shown). Personnel costs included salaries and benefits of all full- and part-time personnel. For contract and assigned counsel systems, personnel costs included only the costs of the management or oversight of those systems. Attorneys paid by contract or under assignment are reported in later tables. State-administered indigent defense systems spent more than $900 million on personnel costs in 2013 (not shown). ***Footnote 4 Wisconsin did not report personnel costs***. States reported the amount and sources of revenue received. Alaska, Hawaii, Massachusetts, New Hampshire, Virginia, and West Virginia were funded entirely by the state, while Delaware and the District of Columbia were funded entirely by the federal government (table 5). In comparison, Connecticut and Oregon were funded entirely from client application fees, while New Jersey was funded by recoupment. States used a variety of factors to determine whether a client was indigent. Typically, indigence can be made by the court or by the indigent defense office. The survey did not ask who was responsible for determining a client’s indigence. Instead, it collected information on the factors used to determine indigence. Connecticut, Kentucky, and Missouri (8 factors each) used the most factors to determine indigence, while Wyoming (2 factors) used the fewest (table 6). Twenty-seven states and the District of Columbia used income as a factor, while nine states used a defendant’s ability to post bond as a factor. *************************************** The most common method of conflict management was to send the case to assigned counsel *************************************** Overall, 27 states and the District of Columbia Public Defender Service responded about conflict management. Arkansas, New Jersey, Rhode Island (2 offices), and West Virginia reported that they did not maintain guidelines or policies for conflict of interest cases (not shown). Offices reported how cases were processed when an attorney had a conflict of interest. ***Footnote 5 Delivery method responses were reported at the office level. That is, if one delivery method reported a conflict management strategy, it was marked for the office***. Offices could use more than one method of conflict management. The most common method reported by indigent defense offices was to send the case to an appointed counsel program administrator or directly to appointed counsel (figure 3). *************************************** 26 states employed 4,676 full-time equivalent line public defenders *************************************** Many of the 28 state-administered indigent defense programs and the District of Columbia reported that their system had one FTE chief executive. Louisiana and North Carolina reported more than 20 chief executives (table 7). Contract systems and assigned or appointed counsel systems were not asked about managing attorneys, supervising attorneys, or line attorneys. Of the reporting public defender and conflict public defender delivery systems, states and the District of Columbia reported 188 FTE managing attorneys, who did not litigate cases but managed staff, assessed attorney performance, and monitored indigent defense delivery. In addition, 25 states reported 580 FTE supervising attorneys, and 26 states reported 4,662 line public defenders. All delivery methods were given the option to list the number of contract and assigned or appointed attorneys. Of those that reported, contract counsel ranged from 1 FTE in West Virginia to 775 FTEs in Connecticut, and assigned or appointed counsel ranged from 4 FTEs in Louisiana to 1,220 FTEs in Virginia. Twenty-three states and the District of Columbia reported that their indigent defense systems required their attorneys to have annual performance reviews (table 8). Additionally, 25 states and the District of Columbia mandated their attorneys to complete continuing legal education (CLE). State-administered indigent defense systems typically provided opportunities for professional development in criminal law (28), ethics (27), trial skills (27), and motions (26) (appendix table 4). *************************************** More than 2,000 full-time equivalent employees provided support to public defenders in 2013 *************************************** Support staff are employees who are not typically attorneys, but persons who provide services such as legal research, investigation, clerical, and administrative services to public defenders and other indigent defense attorneys. State- administered public defender systems employed investigators (944), social workers (252), paralegals (230), and law clerks or interns (614). For public defender and conflict offices, states and the District of Columbia ranged from 3 investigators (North Dakota) to 174 (New Jersey) (table 9). Eight states reported that they did not have any FTE social workers, seven states did not have any FTE law clerks or interns, and five states did not employ any FTE paralegals. An additional 2,900 trainers, indigency screeners, clerical, administrative, and other employees supported all methods of indigent defense delivery in 2013 (appendix table 5). About 60% of these support staff were clerical workers. ****************************************** State commissions appointed more than half of indigent defense chief executives ****************************************** The 28 states and the District of Columbia reported 63 different chief executives. In 2013, half of the chief executives (32 of 63) were appointed by a state commission or the equivalent for the District of Columbia (table 10). Nineteen percent (12 of 63) of the chief executives were appointed by the governor of the state. No chief executives were publicly elected (not shown). Sixty-eight percent (43 of 63) reported that the chief executive did not have a term limit. ********************************************************** ********************************************* States increased the numbers of full-time equivalent litigating attorneys and support staff between 2007 and 2013 ********************************************* State-administered public defender office characteristics from the 2013 National Survey of Indigent Defense Systems (NSIDS) can be compared with data from the 2007 Census of Public Defender Offices (CPDO). Twenty-two states reported on public defender staffing in both 2007 and 2013. Most of these states increased the number of full-time equivalent (FTE) litigating defenders; however, the number of FTE litigating defenders decreased in Minnesota, Montana, New Mexico, and Virginia (table 11). ********************************************************** ****************************************** Most state indigent defense advisory boards had the power to hire or remove the chief executive ****************************************** Twenty-one states and the District of Columbia had advisory boards or commissions in 2013. Of those, 18 states indicated that the governor was involved in appointing the advisory board members (appendix table 6). Seven of the 18 states indicated that the governor was the sole source of appointment for the advisory board. In 2013, 19 states and the District of Columbia with advisory boards indicated that the board had the power to hire and remove the chief executive of the indigent defense system (table 12). Thirteen states indicated that the advisory board administered or managed the indigent defense system budget, and 10 states indicated the advisory board established the number and types of personnel for the indigent defense system. One state (Kentucky) reported that the advisory board had none of the powers listed, while 9 states reported their advisory boards had every power listed. ********************************************* 16 states used contract counsel and 14 states and the District of Columbia used assigned counsel in 2013 ********************************************* Eleven states awarded contracts through the public defender for the provision of indigent defense in 2013 (table 13). Of these, six states indicated that the contracting process was competitive throughout the state. The process of payments for attorneys that provided indigent defense under contracts varied widely by state. Two states paid a flat rate per month or per year, while eight states indicated that the process of payment varied by county or by case. Eight states indicated that a state commission, public defender office, or assigned counsel administrator maintained a list of eligible assigned counsel for the whole system (table 14). Four states and the District of Columbia indicated that each individual court maintained a list for all judges in the court, and two states indicated that each judge maintained a list. Seven states and the District of Columbia maintained both a formal application and removal procedure for attorneys on the assigned counsel list. Seven states reported that the hourly rate did not vary by case type. Most reporting assigned counsel systems reported that there was no maximum limit to the amount an attorney could bill for a case (not shown). ********************************************* Most state-administered indigent defense systems reimbursed attorneys for out-of- pocket expenses ********************************************* Twenty-four (92%) state-administered governmental public defender offices, including the District of Columbia, reimbursed attorneys for out-of-pocket expenses incurred in 2013. Four in five (80%) nongovernmental public defender offices reimbursed attorneys for out-of-pocket expenses. (figure 4). All six conflict public defender offices reimbursed attorneys for out-of-pocket expenses incurred. More than 80% of contract systems (13 in 16) and assigned attorney systems (13 in 15) reported that they reimbursed attorneys for out-of-pocket expenses incurred in 2013. ************* Methodology ************* Survey overview ***************** The Bureau of Justice Statistics’ (BJS) National Survey of Indigent Defense Systems (NSIDS) is the first data collection from all forms of indigent defense delivery in the United States. The NSIDS furthers the work of the 2007 Census of Public Defender Offices (CPDO) and the 1999 Survey of Indigent Defense Systems. NORC at the University of Chicago fielded the both the 2007 CPDO and the 2013 NSIDS on behalf of BJS. This report is based on data from state-administered indigent defense systems. A state-administered indigent defense system is one in which one or two offices coordinate the funding and delivery of indigent defense throughout the entire state. A forthcoming report will be based on data from the county-administered indigent defense systems. NSIDS collected information about the type of indigent defense delivery methods, caseloads, personnel and staffing, conflict management, funding and fees collected by indigent defense systems, and tracking of graduates. Universe identification ************************* The universe list of indigent defense systems began with the 2007 CPDO. The list of public defenders was supplemented by the National Legal Aid and Defender Association (NLADA) for state-administered systems. The universe included state-administered indigent defense systems that handled felony cases, and included data on all of the other cases handled by that system, including misdemeanors, juvenile, appellate, and civil cases. The universe did not include indigent defense provided in tribal court systems or municipal court systems. For the majority of this report, the unit of count is the state. The District of Columbia is neither a state nor a county; however, the provision of indigent defense was handled primarily by the Public Defender Service (PDS). Any cases that the District of Columbia’s PDS could not handle were referred to a panel of attorneys called the Criminal Justice Act (CJA) panel (i.e., Criminal Justice Act of 1964). Data for the NSIDS were collected from the offices responsible for state-administered indigent defense. Two offices had to be combined to report at the state level for Alaska, Colorado, the District of Columbia, and Rhode Island. Virginia’s Indigent Defense Commission responded to the survey and reported the information for the state’s public defender system. The survey was not sent to the Virginia Supreme Court, mistakenly. While New Hampshire had one main office for the provision of indigent defense, the survey was sent to both the New Hampshire Public Defender and the New Hampshire Judicial Council. Staff worked with the New Hampshire Judicial Council to reconcile differences between the responses received from the public defender and the judicial council. The original universe list included the 50 states and the District of Columbia. State-administered indigent defense systems included 28 states and the District of Columbia. The remaining 22 states will be included in the forthcoming county-administered report. Response rate ************** The survey was sent to 35 state offices in 28 states and the District of Columbia in November 2014. The initial contact letter contained a link to a web-based survey and an access code for respondents to enter and complete the survey online. Later in the data collection, offices were sent links to the web survey and a paper questionnaire. Data collection continued through October 2015, with a reference year of 2013. If the indigent defense office did not respond to the survey, staff followed up with phone calls and emails to the respondent. After repeated follow- up, the survey reached a 100% unit response rate. Twenty-five offices (71%) completed the survey online and 10 offices (29%) completed the paper questionnaire. Item nonresponse ******************* The NSIDS included 57 total questions; however, the web survey contained logic for skip patterns. That is, an office indicating that it used public defenders for indigent defense delivery saw only questions related to public defenders, not questions for assigned or contract counsel. If an office indicated it used all methods of delivery, it received all questions. For responding offices, there was no discernible pattern to item nonresponse. Overall, the item nonresponse rate for each question was less than 20%, unless otherwise noted in the tables. Accuracy of the estimates ************************** Because the NSIDS was designed to be a census of all indigent defense delivery methods and the state-administered portion received a 100% unit response rate, any error should come from item nonresponse. Definition of a case ********************* A case was defined as a set of all charges against a single defendant that were handled by the court as a single matter. A case referred to a single defendant. A case with three defendants was recorded as three cases, but a case with one defendant with multiple charges was counted as one case. Further, respondents were asked to count the number of cases closed, meaning that they were to count cases where a judgment of conviction, acquittal, or dismissal with or without prejudice, was entered by the court. Cases closed are presented, unless otherwise noted. Full-time equivalent and workload estimates ********************************************* Full-time equivalent (FTE) is typically calculated by dividing the hours worked by part-time employees by the standard number of hours for full-time employees (40 hours per week), then adding the resulting quotient to the number of full-time employees. The unit of count may be different by type of attorney. That is, a public defender may be considered full time at 40 hours per week, while an assigned attorney may be considered full time based on the number of cases received. Because the survey only asked for counts of full- and part-time employees and not about the hours worked, FTE was calculated by adding the total number of reported full-time employees to half of the reported part-time employees, or FT+(PT*0.5). This assumes that two part-time employees on average equates to one FTE employee and makes it difficult to compare FTE employees across delivery methods. To estimate overall attorney workload by case type, the number of case types closed in a state was divided by the number of full- time equivalent attorneys in a state. This assumes that attorneys do not specialize by case type but handle every case type, and that cases are evenly distributed to all litigating attorneys, regardless of whether they are supervisors who litigate cases, attorneys with many years of experience, or recently hired attorneys. State-specific notes on indigent defense systems ************************************************* Alaska: Public Defender Agency did not provide case counts, but provided attorney counts. Alaska’s Office of Public Advocacy provided case counts but not attorney counts. Arkansas: Reported total number of cases differed from caseload summed by reported number of cases by case type. Numbers reflect caseload summed by case type. Connecticut: Did not have the death penalty in 2013. However, it was not retroactive, and 11 prisoners were on death row. District of Columbia Superior Court: Did not track cases and did not report the number of attorneys on staff. Caseload and number of FTE numbers reflect District of Columbia Public Defender Service only. Maryland: Did not report. Maryland abolished the death penalty in 2013. Numbers reflect cases opened in calendar year 2013 obtained from the Fiscal Year Annual Report from the Office of the Public Defender. Montana: Reported 222 part-time contract attorneys that were shared by the three delivery methods (public defender, conflict public defender, and contract counsel). The 110 FTE contract employees were reported as contract employees because they were paid through a contract. New Mexico: Repealed the death penalty in 2009, though it was not retroactive. Two inmates were on death row in New Mexico in 2015. New Mexico reported 110 capital cases in fiscal year 2013. New Mexico has 5 classes of felony offenses, the most serious of which is the capital felony, which is likely reported in this category. North Carolina: Tracked cases by fee applications. The numbers presented are not necessarily cases closed. Virginia: The survey was not sent to the Virginia Supreme Court for assigned/appointed counsel information. The information on assigned/appointed counsel system was taken from the Supreme Court’s 2013 Yearly Report on Legal or Medical Services provided. Only those attorneys provided under Virginia statute 19.2-163 were included in the tables. Wyoming: Administered an indigent defense and a guardian ad litem program. This report only addresses data for the indigent defense program. ****************************************************************** The Bureau of Justice Statistics of the U.S. Department of Justice is responsible for measuring crime, criminal victimization, criminal offenders, victims of crime, correlates of crime, and the operation of criminal and civil justice systems at the federal, state, tribal, and local levels. BJS collects, analyzes, and disseminates statistics on crime and justice systems in the United States. In addition, BJS supports improvements to state and local criminal justice information systems and participates with national and international organizations to develop and recommend national standards for justice statistics. Jeri M. Mulrow is acting director. This report was written by Suzanne M. Strong. Jennifer Bronson and Joshua Markman verified the report. David Herda of NORC at the University of Chicago carried out data collection and processing. Pamela Loose and Libby Snow assisted in the data collection. Jill Thomas and Caitlin Scoville edited the report, and Barbara Quinn and Morgan Young produced the report. November 2016, NCJ 250249 ***************************************************************** ************************************************** Office of Justice Programs Innovation * Partnerships * Safer Neighborhoods www.ojp.usdoj.gov ************************************************** ********************** 10/26/2016/JER/11:20am Revised 1/26/2017 3:45pm **********************