When Excessive Public Defender Workloads
Violate the Sixth Amendment Right to Counsel
Without a Showing of Prejudice
Laurence A. Benner
March 2011

All expressions of opinion are those of the author or authors.
The American Constitution Society (ACS) takes no position on specific legal or policy initiatives.

American Constitution Society 11333 H Street. NW, 11th Floor I Washington, DC 20005

When Excessive Public Defender Workloads Violate the Sixth Amendment
Right to Counsel Without a Showing of Prejudice
Laurence A. Benner
In his keynote address at the National Symposium on Indigent Defense, Attorney General
Eric Holder candidly acknowledged the well-documented fact that public defender offices across
the country are overloaded with too many cases.1 About three out of every four county-funded
public defender offices have attorney caseloads which exceed nationally recognized maximum
caseload standards.2 Caseloads are so excessive that in many jurisdictions, defense counsel are
unable to perform core functions such as conducting an adequate factual investigation into guilt
or innocence. In Florida, for example, the annual felony caseload of individual public defenders
increased to 500 felonies per year while the average for misdemeanor cases rose to an
astonishing 2,225.3 In Tennessee, six attorneys handled over 10,000 misdemeanors annually,
spending on average less than one hour per client.4 The maximum annual caseload
recommended by the American Bar Association and the President‟s National Advisory
Commission on Criminal Justice Standards and Goals is only 150 felony cases or 400
misdemeanor cases per full time attorney.5


Laurence A. Benner is Professor of Law and Managing Director of Criminal Justice Programs at California
Western School of Law, San Diego, California. He is a member of the Board of Directors of the National Legal Aid
& Defender Association and The Fellows of the American Bar Association.
1
Attorney Gen. Eric Holder, Keynote Address to the U.S. Dep‟t of Justice Nat‟l Symposium on Indigent Defense:
Looking Back, Looking Forward, 2000-2010 (February 18, 2010), available at:
http://www.justice.gov/ag/speeches/2010/ag-speech-100218.html. Materials presented at the symposium are
available at http://www.ojp.usdoj.gov/BJA/topics/inddef_index.html. For additional studies documenting
longstanding problems in the delivery of indigent defense services, see also ABA CRIMINAL JUSTICE SECTION, THE
STATE OF CRIMINAL JUSTICE 149-158 (2009); NAT‟L RIGHT TO COUNSEL COMMITTEE, JUSTICE DENIED: AMERICA‟S
CONTINUING NEGLECT OF OUR CONSTITUTIONAL RIGHT TO COUNSEL (2009); Laurence A. Benner, The Presumption
of Guilt: Systemic Factors that Contribute to Ineffective Assistance of Counsel in California, 45 CAL. W. L. REV.
263 (2009) [hereinafter Benner, The Presumption of Guilt]; NAT‟L LEGAL AID & DEFENDER ASSOC., EVALUATION
OF TRIAL-LEVEL INDIGENT DEFENSE SYSTEMS IN MICHIGAN: A RACE TO THE BOTTOM (2008); ABA STANDING
COMMITTEE ON LEGAL AID & INDIGENT DEFENDANTS, GIDEON‟S BROKEN PROMISE: AMERICA‟S CONTINUING
QUEST FOR EQUAL JUSTICE (2004); NAT‟L LEGAL AID & DEFENDER ASSOC., FINAL REPORT OF THE NATIONAL
ADVISORY COMMITTEE ON INDIGENT DEFENSE SERVICES (1996); Laurence A. Benner, Tokenism and the American
Indigent: Some Perspectives on Defense Services, 12 AM. CRIM. L. REV. 667 (1975); LAURENCE A. BENNER &
ELIZABETH L. NEARY, NAT‟L LEGAL AID & DEFENDER ASSOC., THE OTHER FACE OF JUSTICE (1973).
2
See DONALD J. FAROLE, JR. & LYNN LANGTON, U.S. DEP‟T OF JUSTICE, BUREAU OF JUSTICE STATISTICS, SPECIAL
REPORT: CENSUS OF PUBLIC DEFENDER OFFICES 2007, COUNTY-BASED AND LOCAL PUBLIC DEFENDER OFFICES,
2007 (2010), available at http://bjs.ojp.usdoj.gov/content/pub/pdf/clpdo07.pdf, reporting that 73% of all countybased and local public defender offices exceeded maximum attorney caseload standards recommended by the ABA,
NLADA, The National Study Commission on Defense Services and the President‟s National Advisory Commission
on Criminal Justice Standards and Goals (discussed infra). Defender systems organized at the state level fared no
better, experiencing a 20% increase in caseload from 1999 to 2007 while gaining only a 4% increase in staffing.
Fifteen of twenty-two state-wide defender systems operated with attorney caseloads that exceeded national standards
in 2007. See id.
3
NAT‟L RIGHT TO COUNSEL COMM., supra note 2 at 68.
4
Id.
5
See ABA STANDING COMM. ON LEGAL AID AND INDIGENT DEFENDANTS, TEN PRINCIPLES OF A PUBLIC DEFENSE
DELIVERY SYSTEM (2002), available at http://www.abanet.org/legalservices/downloads/sclaid/indigentdefense/
tenprinciplesbooklet.pdf. See also NAT‟L ADVISORY COMM. ON CRIMINAL JUSTICE STANDARDS AND GOALS,

1

The traditional legal remedy for such abridgement of the Sixth Amendment right to
counsel, has been an ineffective assistance of counsel claim, made after conviction under
Strickland v. Washington.6 A recent study of over 2,500 ineffective assistance of counsel (IAC)
claims found, however, that only a tiny fraction (4%) of such claims were successful.7 To
establish a violation of the Sixth Amendment under Strickland’s two pronged test, counsel‟s
deficient performance must be both professionally unreasonable and prejudicial.8 To establish
prejudice a defendant must show there is a reasonable probability that the outcome would have
been different. While establishing the “prejudice” prong has always been extremely difficult, the
Supreme Court has recently increased the difficulty even further, declaring in Harrington v
Richter that the “likelihood of a different result must be substantial, not just conceivable.”9
Demonstrating prejudice because of an excessive caseload is thus problematic. Even if counsel
conducted little or no investigation due to an excessive caseload, for example, how does one
determine, sometimes years after the event, what a prompt and thorough investigation would
have uncovered? Moreover, if favorable evidence is later uncovered, it is often, as one judge
candidly admitted, “impossible to know” in a post-conviction proceeding what effect the
evidence would have had on the jury.10 Attempting systemic reform through post-conviction
ineffective assistance of counsel claims is thus not an effective option. Even when successful, the
deterrent impact of an individual case is small and further marginalized by the fact that relief is
usually granted only after years of protracted litigation.
This Issue Brief discusses a litigation strategy which avoids Strickland’s prejudice prong
by focusing on the absence of counsel at a critical stage of the proceedings, rather than the
ineffectiveness of counsel‟s conduct. As Gideon v. Wainwright 11 and its progeny established,
the Sixth Amendment guarantees the assistance of counsel at each critical stage of the
proceedings against an accused. The strategy outlined here is premised upon the argument that
the period between arraignment and trial---the investigatory stage---is a critical stage at which
the accused is entitled to counsel‟s assistance. In sum, the argument is that because excessive
caseloads make it impossible for defense counsel to conduct a reasonable investigation into
factual innocence and/or mitigating circumstances relevant to punishment, this inability to
provide “core” assistance of counsel renders counsel constructively absent at a critical stage of
the proceedings.
As discussed below, Powell v. Alabama,12 Geders v. United States,13 and the Supreme
Court‟s recent decision in Kansas v. Ventris,14 (which dealt with the timing of a Sixth
COURTS 276 (1976) (creating Standard 13.12, which establishes maximum annual caseload standards for publically
provided defense counsel).
6
466 U.S. 668 (1984).
7
Benner, The Presumption of Guilt, supra note 1 at 324.
8
Strickland, 466 U.S. at 687.
9
Harrington v. Richter, 131 S. Ct. 770, 792 (2011). Harrington involved the failure to call forensic experts.
10
Sears v. Upton, 130 S. Ct. 3259, 3264 (2010). In a per curiam opinion the U.S. Supreme Court held that the
judge‟s failure to “engage with the evidence” was error. Id. at n.9. That does not, however, diminish the difficulty
judges face in having to make the assessment of prejudice.
11
372 U.S. 335 (1963).
12
287 U.S. 45 (1932).
13
425 U.S. 80 (1976).
14
129 S. Ct. 1841 (2009).

2

Amendment violation) establish that a constitutional violation occurs without regard to any
showing of prejudice when counsel is prevented from providing assistance during a critical stage
of the proceedings.15 There is thus a completed violation of the Sixth Amendment prior to trial.
This is a “structural defect,” rather than a product of erroneous decision-making by counsel in an
individual case. Because core assistance by counsel has not been provided, the framework in
which the trial proceeds is altered, resulting in a criminal justice system that “cannot reliably
serve its function as a vehicle for the determination of guilt or innocence.”16 Therefore,
Strickland does not apply and proof of prejudice is not required.17 This strategy makes it
possible to bring a cause of action which focuses not on the individual case, but instead on the
system as a whole by showing a systemic violation of the right to counsel prior to trial. Because
the Sixth Amendment violation is established at the time the inability to investigate arises, this
makes class action injunctive relief an appropriate remedy prior to the trial of any individual
case.18
I.

Providing Counsel under Circumstances which Preclude the Opportunity for
Investigation Violates the Sixth Amendment

It has been long established that the failure to investigate factual innocence and
circumstances mitigating punishment violates the Sixth Amendment‟s guarantee of the right to
the assistance of counsel. The Supreme Court first recognized the importance of defense
counsel‟s duty to conduct a “prompt and thorough-going investigation” in the pathmarking right
to counsel case, Powell v. Alabama (1932).19 In that case, six black youths were charged with
the rape of two white women, a capital offense in Alabama at that time. Although attorneys
were appointed to represent the defendants, the trial commenced almost immediately without
giving counsel an opportunity to conduct any meaningful investigation. The Supreme Court held
that the state‟s duty to provide counsel in a capital case was “not discharged by an assignment at
such time or under such circumstances as to preclude the giving of effective aid in the
preparation and trial of the case.”20 The Court emphasized that the time between arraignment
and trial was “perhaps the most critical period of the proceedings” because that is when
“consultation, thorough-going investigation and preparation [are] vitally important.”21 The fact
15

“The Court has uniformly found constitutional error without any showing of prejudice when counsel was either
totally absent, or prevented from assisting the accused during a critical stage of the proceeding.” United States v.
Cronic, 466 U.S. 648, 659 n. 25 (1984) (citing Geders; Herring v. New York, 422 U.S. 853 (1975); Brooks v.
Tennessee, 406 U.S. 605, 612-13 (1972); Hamilton v. Alabama, 368 U.S. 52 (1961); White v. Maryland, 373 U.S.
59, 60 (1963) (per curiam); Ferguson v. Georgia, 365 U.S. 570 (1961); and Williams v Kaiser, 323 U.S. 471, 475-76
(1945)).
16
Rose v. Clark, 478 U.S. 570, 577-78 (1986).
17
As the Supreme Court explained in Arizona v Fulminate, 499 U.S. 279 (1991), structural defects “defy analysis by
harmless error standards” because they involve speculative inquires into what “might have been.” Id. at 309.
Examples of structural defects requiring no showing of prejudice include the absence of counsel, Gideon v.
Wainwright, 372 U.S. 335 (1963), interference with counsel‟s representation at a critical stage, Geders, the improper
disqualification of privately retained counsel, United States v. Gonzalez-Lopez, 548 U.S. 140 (2006), and
representation by counsel with conflicting interests, Holloway v. Arkansas, 435 U.S. 475 (1978); Cuyler v. Sullivan,
446 U.S. 335 (1980). See Part VI, infra.
18
See Hurrell-Harring v. New York, 930 N.E.2d 217 (N.Y. 2010). This case is discussed further infra.
19
287 U.S. 45, 58 (1932).
20
Id. at 71.
21
Id. at 57.

3

that counsel were unable to conduct any meaningful investigation was thus central to Powell’s
holding that the defendants‟ right to counsel was violated.
A.

National Standards

It was against this constitutional backdrop that the ABA promulgated its Standards for
Criminal Justice which marked out the duties of defense counsel. Standard 4-4.1 provides:
Defense counsel should conduct a prompt investigation of the
circumstances of the case and explore all avenues leading to facts
relevant to the merits of the case and the penalty in the event of
conviction . . . . The duty to investigate exists regardless of the
accused‟s admissions or statements to defense counsel . . . .22
The Supreme Court has relied upon this and other ABA Criminal Justice Standards as evidence
of the norms of professional conduct when finding that counsel‟s failure to conduct a proper
investigation violated the right to effective assistance of counsel. Noteworthy examples include
Wiggins v. Smith (2003),23 Rompilla v. Beard (2005),24 and more recently, Porter v. McCollum
(2009)25 and Padilla v. Kentucky (2010).26
ABA Criminal Justice Standards also provide that:
Defense counsel should not carry a workload that, by reason of its
excessive size, interferes with the rendering of quality
representation, endangers the client‟s interest in the speedy
disposition of charges, or may lead to the breach of
professional obligations. 27

22

ABA STANDARDS FOR CRIMINAL JUSTICE, DEFENSE FUNCTION AND PROSECUTION FUNCTION 126, Defense
Function Standards 4-1.3(e) (3d ed. 1993) [hereinafter ABA STANDARDS, DEFENSE AND PROSECUTION], available at
http://www.abanet.org/crimjust/ standards/prosecutionfunction.pdf; ABA GUIDELINES FOR THE APPOINTMENT AND
PERFORMANCE OF COUNSEL IN DEATH PENALTY CASES 11.4.1(C) (1989); see also ABA STANDARDS FOR CRIMINAL
JUSTICE, PROVIDING DEFENSE SERVICES 68-69, Standard 5-5.3 (3d ed. 1992), available at
http://www.abanet.org/crimjust/standards/ providingdefense.pdf.
23
539 U.S. 510 (2003) (holding that counsel‟s failure to investigate defendant‟s family and social history which
would have uncovered mitigating evidence relevant to penalty phase of a prosecution for capital murder violated the
Sixth Amendment).
24
545 U.S. 374 (2005) (holding that counsel‟s failure to review a readily available court file which would have led
to mitigation evidence in a death penalty case constituted ineffective assistance).
25
130 S. Ct. 447 (2009) (holding that counsel‟s failure to investigate defendant‟s military records which would have
disclosed defendant had received two purple hearts during the Korean War and suffered from PTSD was ineffective
assistance). It should be noted that although a per curiam opinion in Bobby v. Van Hook, 130 S. Ct. 13 (2009) stated
it was not appropriate to treat the more detailed 2003 ABA Guidelines for the Appointment and Performance of
Counsel in Death Penalty Cases as “inexorable commands,” the trial in that case occurred eighteen years before
those standards were promulgated. The Court, moreover, reaffirmed the vitality of both Wiggins and Rompilla in
Porter.
26
130 S. Ct. 1473 (2010). Padilla held that the failure to investigate the immigration consequences of a felony guilty
plea and to advise a defendant of the risk of deportation constituted ineffective assistance.
27
ABA STANDARDS, DEFENSE AND PROSECUTION, supra note 22.

4

In 1973, the National Advisory Commission on Criminal Justice Standards and Goals (NAC)
adopted national caseload standards, which were recognized in the ABA‟s Ten Principles of a
Public Defense Delivery System as a maximum that “should in no event be exceeded.”28 These
national standards specify that one full-time attorney should be assigned no more than 150 noncapital felony defendants per year, or 400 non-traffic misdemeanor defendants, or 200 juvenile
clients respectively. Because criminal justice systems differ significantly from state to state and
even within a state, such national standards undoubtedly are too high in some jurisdictions, given
local laws, court structure, logistical considerations, prosecutorial charging and plea bargaining
policies, and judicial sentencing norms. Only an actual workload assessment based upon time
studies can determine the maximum number of defendants an individual attorney can effectively
represent in a given jurisdiction. The National Center for State Courts, for example, undertook a
workload assessment for the Maryland Public Defender Office in 2005, and recommended
substantially lower caseloads than those set by the national standards.29 Nevertheless the
national standards are a reliable barometer of caseload pressure.
B.

A Case Study: The Crisis in California

Having established the first public defender office in Los Angeles in 1914, California has
always been regarded as a leader in providing indigent defense services. A recent study for the
California Commission on the Fair Administration of Justice, however, found that over half of
the institutional public defender offices in that state had caseloads which exceed the national
standards.30 Those offices also reported problems in obtaining adequate investigative resources.
This is significant because the maximum attorney caseload standards are predicated upon
adequate investigative assistance. All (100%) of the responding California offices that employed
staff investigators reported having excessive investigator workloads.31 The recommended
standard is one investigator for every three attorneys.32 In three counties, there was only one
investigator for every eight attorneys. One of these offices had handled ten death penalty cases
during the year. Two rural offices had no investigator on staff and one of those reported having
significant difficulty in obtaining court approval for funds to obtain investigative assistance.33
Also revealing was the fact that all of these California defender offices reported that they had
difficulty interviewing prosecution witnesses. More than one quarter (27%) classified this
problem as “serious.”34

28

ABA STANDING COMM‟N ON LEGAL AID AND INDIGENT DEFENDANTS, TEN PRINCIPLES OF A PUBLIC DEFENSE
DELIVERY SYSTEM 2 (2002) (giving commentary on the “Fifth Principle”), available at:
http://www.abanet.org/legalservices/downloads/sclaid/indigentdefense/tenprinciplesbooklet.pdf. These standards,
approved by the American Bar Association House of Delegates in February 2002, were created to assist
governmental officials and “constitute the fundamental criteria necessary to design a system that provides effective,
efficient, high quality, ethical, conflict-free legal representation for criminal defendants who are unable to afford an
attorney.” Id. at Introduction.
29
BRIAN J. OSTROM, MATTHEW KLEIMAN & CHRISTOPHER RYAN, NAT‟L CENTER FOR STATE COURTS, MARYLAND
ATTORNEY AND STAFF WORKLOAD ASSESSMENT 35 (2005), available at
http://www.ncsconline.org/WC/Publications/Res_WorkLd_MDAtty&StaffWkLdAs05Pub.pdf.
30
Benner, The Presumption of Guilt, supra note 1 at 266 n.4 & 285.
31
Id. at 288.
32
NAT‟L STUDY COMM‟N ON DEFENSE SERVS., GUIDELINES FOR LEGAL DEFENSE SYSTEMS, Standard 4.1 (1976).
33
Benner, The Presumption of Guilt, supra note 1 at 289.
34
Id.

5

The difficulty created by the lack of adequate investigative assistance was further
aggravated by several additional factors. First, virtually all of these offices had no contact with
an indigent defendant until they were appointed at the arraignment, several days after arrest.
This delay jeopardizes the ability to preserve evidence and makes it more difficult to locate
witnesses which may be favorable to the defense. Second, there was substantial evidence that
prosecutors were not complying with their statutory and constitutional obligations to provide
essential information to the defense through discovery procedures. An overwhelming majority
(over 90%) of both defenders and experienced private criminal defense attorneys reported that
prosecutors failed to turn over evidence favorable to the defendant (Brady evidence) and delayed
providing even routine information to which the defense is entitled in discovery. Third, and
perhaps most importantly, it was documented that felony cases are routinely disposed of at a
disposition conference held approximately a week after the arraignment. Where the prosecutor
presents a “take it now or lose it” offer at this stage, pressure is thus placed upon the defendant to
accept the plea bargain before there has been time to conduct any meaningful investigation.
The failure to have adequate investigative assistance, coupled with systemic factors such
as delayed appointment of counsel, inadequate discovery, and pressure to resolve cases early,
seriously exacerbates the problem of excessive caseloads. The California experience,
unfortunately, is not atypical. In fact, in many jurisdictions, the situation is graver. For countybased public defender offices, 40% do not have any staff investigators at all. With respect to
those that do, moreover, only 7% have investigator-to-attorney ratios that meet the national
standard.35
II.

When does a Violation of the Sixth Amendment Right to Counsel Occur?
A.

Kansas v. Ventris

The Supreme Court‟s recent decision in Kansas v. Ventris36 sheds new light on the timing
of a Sixth Amendment violation. Ventris involved a violation of the rule established in Massiah
v. United States.37 Massiah held that the government cannot use a secret undercover informant
to deliberately elicit incriminating statements from an indicted defendant who is represented by
counsel. The rationale for the Massiah rule is that the confrontation between a defendant and a
government informant seeking to obtain incriminating statements is a critical stage of the
prosecution against the accused. Therefore the surreptitious interrogation by the informant
deprived the defendant of counsel‟s assistance at that critical stage. In Ventris, in an opinion by
Justice Scalia, the Supreme Court held that the Sixth Amendment is violated at the time the
statement is improperly elicited by the government informant in the absence of counsel, rather
than when the statement is admitted at trial.38 Because the right to counsel is violated at the time
the uncounseled statement is induced, there is no need to show prejudice.
35

Farole & Langton, supra note 2.
129 S. Ct. 1841 (2009).
37
377 U.S. 201 (1964).
38
Ventris was arrested for murder. At trial Ventris took the stand and portrayed himself as a mere bystander. In
rebuttal, the prosecutor called a jailhouse informant who had been placed in Ventris‟ cell to obtain incriminating
statements. The informant testified that Ventris had admitted shooting and robbing the deceased. On appeal it was
conceded that the manner in which the jailhouse snitch had been employed violated Massiah. However, the Court
held it was permissible to use the defendant‟s tainted statements for impeachment. Rejecting the defendant‟s
36

6

The Ventris holding is relevant to the excessive caseload problem because it logically
follows that a violation of the Sixth Amendment likewise occurs at the time a public defender
has such an excessive caseload that he or she is precluded from being able to conduct a prompt
investigation. As Justice Scalia recognized in Ventris, the “core” of the Sixth Amendment right
to counsel “has historically been and remains today, the opportunity for a defendant to consult
with an attorney, and to have him investigate the case and prepare a defense for trial.”39 The
window of opportunity for conducting that investigation is thus a “critical stage” of the
proceedings.40 Especially in jurisdictions where the majority of felony cases are disposed of by
guilty pleas that are entered less than forty-five days after filing,41 the inability of defense
counsel to conduct a prompt investigation thus amounts to nonrepresentation at this critical
investigative stage.42
Because excessive workloads prevent defense attorneys from fulfilling their “core”
investigative function, a substantive violation of the Sixth Amendment occurs prior to trial.43
Following Ventris, the violation occurs at the moment a public defender office accepts new
indigent appointments under circumstances that preclude the ability to promptly investigate the
merits of the defendant‟s case, both with respect to factual innocence or mitigating circumstances
reducing punishment. That inability can be shown mathematically by conducting a Workload
Assessment using time studies similar to those designed by the National Center for State Courts
to determine when additional judges are needed.

argument that his right to counsel was violated by the admission of the statements at trial, the Court held that the
right to counsel violation occurred not at trial but “at the time of the interrogation.” Ventris, 129 S. Ct. at 1846.
Because the issue was therefore not the need to prevent a violation of the right to counsel at trial, but rather to
determine only the scope of the remedy for a past violation of the right, the Court concluded that excluding the
statements during the rebuttal stage was not justified because exclusion of the statements from the prosecution‟s
case- in-chief was already a sufficient sanction to deter future violations.
39
Id. at 1844-55.
40
In Powell v. Alabama, 287 U.S. 45 (1932), the Court recognized that the period between arraignment and trial was
“perhaps the most critical period” of the proceedings against an accused. Id. at 57. After Gideon v. Wainwright,
372 U.S. 335 (1963), the Court established various “touchstones” for defining what is a critical stage. As Professor
LaFave has pointed out, one test is whether “a potential opportunity for benefitting the defendant as to the ultimate
disposition of the charge through rights which could have been exercised by counsel” has been lost and whether that
“lost opportunity” could be “regained by actions subsequently provided counsel could have taken.” WAYNE
LAFAVE, ET. AL., CRIMINAL PROCEDURE 599 (5th ed. 2009). When the opportunity for investigation is lost due to
appointment of counsel with an excessive caseload, the opportunity to conduct a prompt investigation cannot be
regained by subsequent appointment of appellate counsel who may not investigate until many months if not years
after the event.
41
See, e.g., CALIFORNIA JUDICIAL COUNCIL, 2010 COURT STATISTICS REPORT: STATEWIDE CASELOAD TRENDS
1999-2000 THROUGH 2008-2009 115-16 & 127-28 (disclosing that, during fiscal year 2008-09, disposition of 71%
of all felony filings in the state of California occurs in less than ninety days, while 56% are disposed of in less than
forty-five days).
42
See White v. Maryland, 373 U.S. 59 (1963). There, the defendant pled guilty at a preliminary hearing without
counsel. Although the plea was non-binding and was later withdrawn when counsel was subsequently appointed,
testimony revealing the defendant had pled guilty was admitted at his trial. Although the defendant made no
objection to this evidence because the defense was insanity not factual innocence, the Court nevertheless reversed,
ruling that the entry of the plea was a critical stage and no showing of prejudice was required. Id. at 60.
43
This argument was first presented by the author in a review of Supreme Court cases at the NLADA Annual
Conference in Denver. Laurence A. Benner & Marshall J. Hartman, Supreme Court Review, Nat‟l Legal Aid and
Defender Association Annual Conference (November 20, 2009).

7

B.

Using Time Studies to Make Objective Workload Assessments

Using the National Center for State Courts‟ methodology, time studies have been
employed to create objective data which can translate raw caseload filings into actual workload.
By measuring real events such studies accurately reflect the unique practice environment in a
particular jurisdiction, including logistical considerations and other operational characteristics
that impact defense representation.
To provide a much simplified explanation, one component of the study involves making a
determination of the number of hours staff attorneys have available for case related activities and
in-court representation. The second component involves recording the amount of time actually
spent providing representation for different types of cases.
Analyzing time spent on particular aspects of representation for different types of cases
makes it possible to classify cases based upon their complexity, thus creating a more precise tool
for measuring the workload created by a given mix of cases. The Workload Assessment
conducted by the University of Nebraska‟s Public Policy Center for the Lancaster County Public
Defender, for example, identified seventeen different case types.44
Dividing the amount of time needed to provide representation for a given annual caseload
by the number of hours available from an individual staff attorney determines the number of
attorneys needed to handle that caseload. The Workload Assessment can thus be used to support
a chief defender‟s judgment to declare a public defender office unavailable to take additional
cases. Guideline 6 of the ABA‟s Eight Guidelines of Public Defense Related to Excessive
Workloads specifically states that a public defender “is obligated to seek relief from the court”
when alternative options for dealing with an excessive caseload have been exhausted or are
unavailable.45 By documenting that the office has inadequate resources to conduct the necessary
client interviews and investigations, this data objectively establishes that the acceptance of
additional cases will result in a substantive violation of the Sixth Amendment right to counsel‟s
assistance.
By establishing the number and type of pending cases an individual attorney has open, it
can also be shown, using data from such a Workload Assessment, that an individual staff
attorney‟s excessive workload prevents them from having the ability to meet their constitutional
obligation to investigate and prepare for trial if they accept new cases. This data can thus
provide an evidence-based method for determining when an attorney has an ethical duty not to

44

See ELIZABETH NEELEY, UNIV. OF NEB. PUB. POLICY CTR., LANCASTER COUNTY PUBLIC DEFENDER WORKLOAD
ASSESSMENT JULY 2008, available at:
http://ppc.unl.edu/project/LancasterCountyPublicDefenderWorkloadAssessment. For additional studies, see Nat‟l
Ctr. for State Courts, Indigent Defense Resource Guide, http://www.ncsc.org/topics/access-and-fairness/indigentdefense/resource-guide.aspx (last visited Feb. 11, 2011). See also Dennis R. Keefe, Weighted Caseload Studies and
Time Records in Controlling Excessive Caseloads: One Public Defender Office‟s Experience, Presentation at Nat‟l
Symposium on Achieving the Promise of the Sixth Amendment: Non-Capital and Capital Defense Services, Univ.
of Tenn. Coll. of Law (May 20, 2010).
45
ABA, EIGHT GUIDELINES OF PUBLIC DEFENSE RELATED TO EXCESSIVE WORKLOADS 3 (2009).

8

accept new assignments, by demonstrating that they would be placed in a position of having a
conflict of interest between new and presently existing clients.46
III.

Why Strickland and the Prejudice Requirement are Inapplicable

It is important to point out that the claim here is one of nonrepresentation, rather than
ineffective representation. As the state of New York‟s highest court recently held in HurrellHarring v. New York, a civil action to obtain injunctive relief will lie where “systemic”
deficiencies result in the denial of “core” assistance by counsel, despite the nominal appointment
of counsel.47 As the court recognized there, the “question presented by such claims … is
whether the State has met its obligation to provide counsel, not whether under all the
circumstances counsel‟s performance was inadequate or prejudicial.”48 Such a lawsuit therefore
does not raise the “contextually sensitive claims that are typically involved when ineffectiveness
is alleged” because case-specific decisions made by individual attorneys are not at issue.49 Thus,
Strickland is not applicable.
The complaint in Hurrell-Harring alleged that due to inadequate funding and staffing, the
indigent defense system was “structurally incapable” of providing legal representation at critical
stages prior to trial as required by the Constitution.50 A multitude of systemic deficiencies were
identified, including the fact that in some circumstances, misdemeanor defendants were not
provided counsel at arraignment.51 Even after counsel was appointed, however, the complaint
alleged as independent claims that attorneys had no meaningful contact with their clients and
investigative services essential to preparing a defense were not provided.52 One plaintiff, for
example, was held in jail awaiting disposition of misdemeanor charges for 148 days and did not
see his attorney for four months.53 The Court declared this period between arraignment and trial
to be a critical stage at which the absence of counsel “may be more damaging than denial of
counsel during the trial itself.”54
The Supreme Court held in Rothgery v. Gillespie County 55 that the right to counsel
attaches when an arrestee is brought before a judicial officer who informs him of the charge and
places restrictions upon his liberty by setting bail. This is typically called an arraignment.
Where an excessive caseload prevents counsel from being able to meet and confer with a client,
undertake necessary legal research and conduct an appropriate factual investigation within a
reasonable time after arraignment, the defendant has been deprived of core assistance at a critical
stage. As the Supreme Court stated in United States v. Cronic: “If no actual “„Assistance‟ „for‟
the accused‟s „defense‟ is provided, then the constitutional guarantee has been violated. To hold
46

See ABA Formal Opinion 06-441, Ethical Obligations of Lawyers Who Represent Indigent Criminal Defendants
When Excessive Caseloads Interfere With Competent and Diligent Representation (May 13, 2006).
47
Hurrell-Harring v. New York, 930 N.E.2d 217, 224-26 (N.Y. 2010).
48
Id.
49
Id.
50
Brief for Plaintiff-Appellants at 8, Hurrell-Harring v. New York, 930 N.E.2d 217 (N.Y. 2010) (No. 2010-0066).
51
Id. at 4.
52
Id. at 7.
53
Id. at 5.
54
Id. (quoting Maine v. Moulton, 474 U.S. 159, 170 (1985)).
55
554 U.S. 191 (2008).

9

otherwise could convert the appointment of counsel into a sham . . . . Assistance begins with the
appointment of counsel, it does not end there.”56
The Supreme Court has recognized a completed violation of the right to counsel without
any showing of prejudice in a number of different contexts. Gideon itself did not require a
showing of prejudice where counsel is not provided at trial. Other cases include: Hamilton v.
Alabama57 (counsel not provided at arraignment), White v. Maryland58 (uncounseled guilty plea),
Herring v. New York59 (counsel prohibited from making closing argument), Holloway v.
Arkansas,60 and Cuyler v. Sullivan61 (representation by counsel with conflicting interests). In
none of these cases was an actual showing of prejudice demanded because counsel either was not
present at all or was prevented from providing assistance and was therefore constructively
absent.
In Geders v. United States,62 the Court also did not require a showing of prejudice where
the trial court prevented counsel from consulting with defendant during an overnight recess that
occurred between his direct testimony and cross-examination. As the Court subsequently
explained in Perry v. Leeke, where it distinguished Strickland, the actual or constructive denial
of the assistance of counsel “is not subject to the kind of prejudice analysis that is appropriate in
determining whether the quality of a lawyer's performance itself has been constitutionally
ineffective.”63
Finally, the Supreme Court has recognized a Sixth Amendment violation of the right to
counsel, without any showing of prejudice, when a defendant has been erroneously denied the
right to retain private counsel of their choice. In United States v. Gonzalez-Lopez, the Court
refused to engage in “a speculative inquiry into what might have occurred in an alternate
universe,”64 holding, “We have little trouble concluding that erroneous deprivation of the right to
counsel of choice, „with consequences that are necessarily unquantifiable and indeterminate,
unquestionably qualifies as „structural error‟.‟”65

56

United States v. Cronic, 466 U.S. 648, 654 (1984).
368 U.S. 52 (1961).
58
373 U.S. 59 (1963).
59
322 U.S. 853 (1975)
60
435 U.S. 475 (1978).
61
446 U.S. 335 (1980).
62
425 U.S. 80 (1976).
63
Perry v. Leeke, 488 U.S. 272, 280 (1989) (citing Strickland v. Washington, 466 U.S. 668, 692 (1984)). Perry
upheld a trial judge‟s order preventing a defendant from consulting with his lawyer during a brief recess
immediately after defendant‟s direct testimony and before cross-examination. Applying the nondiscussion of
testimony rule applicable to all witnesses, the Court held that “when a defendant becomes a witness, he has no
constitutional right to consult with his lawyer while he is testifying.” Id. at 281. The Court distinguished Gedders
on the ground that topics discussed during an overnight recess “would encompass matters that go beyond the content
of the defendant's own testimony -- matters that the defendant does have a constitutional right to discuss with his
lawyer, such as the availability of other witnesses, trial tactics, or even the possibility of negotiating a plea bargain.”
Id. at 284.
64
United States v. Gonzalez-Lopez, 548 U.S. 140, 150 (2006).
65
Id.
57

10

The search for prejudice when an indigent defendant is deprived of the assistance of
counsel during the investigative stage is likewise “a speculative inquiry” because it is impossible
to know, often years later, what witnesses or evidence might have been uncovered had a prompt
investigation been conducted. It would indeed turn Gideon on its head to hold that a rich
defendant is not required to show prejudice when deprived of counsel of her choice, but a poor
defendant must show prejudice when the government has defaulted in its obligation to provide
“core” assistance of counsel at a critical stage of the proceedings against her.
When the underfunding of indigent defense systems result in such excessive caseloads
that defense counsel is unable to conduct a “prompt and thorough-going investigation,”66 the
government denies the assistance of counsel to which the defendant is entitled. County officials
who cut public defender budgets thus violate the Sixth Amendment when they deprive
defendants of the resources needed to provide “core” assistance of counsel—that is, a prompt
and meaningful attorney-led investigation into guilt or innocence and mitigating circumstances,
in compliance with national standards. The same is true for county officials who provide
indigent defense services through a system of flat fee contracts awarded to the lowest bidder
without making adequate provision for investigation. By viewing the period between
arraignment and trial as a critical stage during which counsel-led investigation is required, the
systemic failure to provide indigent defendants with counsel who have sufficient time and
resources to be able to undertake that investigation gives rise to a cause of action for systemic
relief.
IV.

How this Strategy can be Incorporated into the Federal Government‟s Response to the
Indigent Defense Crisis

Hurrell-Harring was brought in state court under New York‟s civil procedure rules
permitting declaratory judgments.67 28 U.S.C. 2201 also contains a similar authority for a
federal court to provide declaratory relief to parties regarding “any controversy within its
jurisdiction.”68 Pursuant to its authority under §5 of the Fourteenth Amendment, Congress also
has the power to enforce the Sixth Amendment by creating a federal cause of action for equitable
and declaratory relief.69 During the 111th Congress, Senators Leahy and Franken sponsored
66

Powell v. Alabama, 287 U.S. 45, 58 (1932).
N.Y. C.P.L.R. § 3001 (McKinney 2010).
68
28 U.S.C.A. § 2201 (West 2010) provides:
In a case of actual controversy within its jurisdiction . . . any court of the United
States, upon the filing of an appropriate pleading, may declare the rights and
other legal relations of any interested party seeking such declaration, whether or
not further relief is or could be sought. Any such declaration shall have the
force and effect of a final judgment or decree and shall be reviewable as such.
69
“The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.” U.S. CONST.
amend. 14, § 5. Gideon v. Wainwright, 372 U.S. 335 (1963), established that the Sixth Amendment is a
fundamental right incorporated within the rights protected by the Due Process Clause of the Fourteenth Amendment.
See also Fitzpatrick v. Bitzer, 427 U.S. 445 (1976) (upholding law suits brought under the Civil Rights Act of 1964).
Congress‟s intent to override sovereign immunity must be clearly expressed. Quern v. Jordan, 440 U.S. 332 (1979)
(holding that Congress did not express such intent with sufficient clarity in 42 U.S.C. §1983). Official immunity is
also no bar to injunctive relief. Pulliman v. Allen, 466 U.S. 522 (1984). While the abstention doctrine may pose an
obstacle to such suits, see Younger v. Harris, 401 U.S. 37 (1971) (holding that a federal court could not interfere in a
state criminal prosecution by restraining the prosecutor from proceeding), the concerns giving rise to that doctrine
67

11

Senate Bill 3842, which authorized the Attorney General of the United States to file a civil action
to obtain equitable and declaratory relief to eliminate any “pattern and practice . . . by
government officials . . . with responsibility for the administration of programs or services which
provide appointed counsel to indigent defendants, that deprives persons of their rights to
assistance of counsel protected under the Sixth Amendment and Fourteenth Amendment.”70
The bill died in Committee at the end of the session, but has been reintroduced as S. 250
in the 112th Congress and referred to the Judiciary Committee. This type of legislation is
precisely what is needed if federal enforcement of the Sixth Amendment is to become a
meaningful reality. Because of the present economic downturn, budget cuts have stripped public
defender offices of the resources needed to provide assistance at the critical stage of
investigation. Moreover, as has been described in a previous article,71 a disturbing trend has
been seen in states like California, where counties are now seeking to abolish institutional public
defender offices which have developed a cadre of experienced career professional defense
attorneys. To avoid the higher cost of such career professionals, who as county employees often
have compensation and benefits on a par with their counterparts in the prosecutor‟s office, these
counties have sought to privatize indigent defense services by awarding contracts for those legal
services to the lowest bidder.
A case in point is Fresno County, California. In fiscal year 2006-2007, the institutional
Public Defender had seventy-six staff attorneys and nineteen investigators. Although it was
already handling felony and misdemeanor caseloads twice the maximum allowed by national
standards, by 2010 the office had been cut to only forty-eight staff attorneys and nine
investigators. Because of these severe budget cuts, the Chief Defender, in compliance with
ethical standards, declared the office unavailable to accept new cases and the court had to
appoint private counsel to some new cases.72 Instead of restoring the Public Defender‟s staff, the

are muted when bringing a class action for prospective relief against a pattern and practice of unconstitutional
conduct which Section 5 was clearly meant to address.
70
The Justice for All Reauthorization Act of 2010, S. 3842, 111th Cong. (2010), contains a section proposing the
“Effective Administration of Criminal Justice Act of 2010,” which provided:
(1) UNLAWFUL CONDUCT- It shall be unlawful for any governmental
authority, or any agent thereof, or any person acting on behalf of a governmental
authority, to engage in a pattern or practice of conduct by officials or employees
of any governmental agency with responsibility for the administration of justice,
including the administration of programs or services that provide appointed
counsel to indigent defendants, that deprives persons of their rights to assistance
of counsel as protected under the Sixth Amendment and Fourteenth Amendment
to the Constitution of the United States.
(2) CIVIL ACTION BY ATTORNEY GENERAL- Whenever the Attorney
General has reasonable cause to believe that a violation of paragraph (1) has
occurred, the Attorney General, for or in the name of the United States, may, in
a civil action, obtain appropriate equitable and declaratory relief to eliminate the
pattern or practice.
71
See, e.g., Laurence A. Benner, The California Public Defender: Its Origins, Evolution and Decline, 5 CAL. LEGAL
HIST. 173 (2010).
72
Brad Brannon, Fresno Co. Public Defender Cuts May Backfire, FRESNO BEE, Sept. 25, 2010, available at
http://www.fresnobee.com/2010/09/24/2091363/fresno-co-public-defender-cuts.html.

12

County responded by putting out an RFP soliciting bids from private contractors to do the work
of the public defender‟s office.73
In theory, contract defenders can provide competent services if properly regulated by
standards and accountability mechanisms to ensure adequate representation by qualified
personnel.74 Recent research, however, indicates this has not occurred, as no enforcement
mechanism exists to ensure that greed does not trump justice.75 One contract defender, for
example, explained that he was able to handle an extremely high volume of cases (exceeding by
several magnitudes the maximum allowed by national standards) because he pled 70% of the
defendants guilty at the first court appearance after spending only about thirty seconds with the
defendant to explain the prosecutor‟s offer.76 Obviously no investigation was undertaken in
these cases where the contract defender met the defendant for the first time in court. There has
also been a race to the bottom as entrepreneurial lawyers engage in bidding wars to gain these
government contracts. One contract defender, for example, who operated on a budget that was
less than a third of the prosecutor‟s budget, was nevertheless replaced, despite support from local
judges, after being undercut by a bid almost 50% less than his submission.77
When privatization schemes that are concerned only about cost fail to provide
representation at the investigation stage, the strategy discussed here for finding that this failure
constitutes a completed violation of the Sixth Amendment will allow successful intervention to
provide a remedy. The same is equally true with respect to institutional defender offices that
have suffered staffing cuts that prevent them from conducting reasonable investigations.
This approach also can be used to justify federal assistance to state indigent defense
systems. In addition to providing a means of enforcing the right to counsel through litigation,
there ought to be a means to reimburse state and local governments for bringing their indigent
defense systems into constitutional compliance. The argument for federal assistance is
compelling because it is the federal Constitution that requires providing the assistance of
counsel. For over thirty years, there have been demands for such federal assistance in the form
of a national Center for Defense Services. In 1977, the American Bar Association‟s Standing
Committee on Legal Aid and Indigent Defendants, together with the National Legal Aid &
73

County of Fresno, Request for Proposal Number 962-4878, October 20, 2010, available at
www2.co.fresno.ca.us/0440/Dwnpgitms/962-4878%20Bid%20Notice.doc. The RFP was subsequently withdrawn.
74
See Benner, The Presumption of Guilt, supra note 1 at 307 & 347-48 recommending: (1) that contracts based upon
a flat fee per case should be prohibited because of the serious danger they present to the integrity of the criminal
justice system, and (2) that contract bidders should be required to submit details concerning the number,
qualifications and cost of attorneys, staff investigators and other support services they would employ, including the
supervisory structure and case management information system necessary to ensure adequate supervision of
individual providers and overall monitoring of the contractor‟s performance. See also NAT‟L LEGAL AID &
DEFENDER ASSOCIATION, GUIDELINES FOR NEGOTIATING AND AWARDING GOVERNMENT CONTRACTS FOR CRIMINAL
DEFENSE SERVICES (1984), available at
http://www.nlada.org/Defender/Defender_Standards/Negotiating_And_Awarding_ID_Contracts#threethree.
75
See Benner, The Presumption of Guilt, supra note 1 at 300-07 reporting examples of contract defenders that have
no staff investigators or other support personnel and give inexperienced attorneys extremely heavy caseloads. When
a lawyer is paid by the case, the contract can be profitable only if there are few trials. Not surprisingly, contract
defenders were much less likely to take a case to trial than institutional public defenders. Id. at 316.
76
Id. at 305.
77
Id. at 306.

13

Defender Association (NLADA) and the National Clients Council, prepared a “Discussion
Proposal” for such a Center.78 The basic concept underlying the proposal was the creation of an
independent federally-funded granting entity constructed upon the following four principles:
(1)
(2)
(3)
(4)

federal funding for the improvement of defense services must be structured so as
to provide continuity and stability over a significant number of years;
financial support should be instituted through a grant in aid program;
the funding program should contain incentives for local communities to maintain
and augment their current efforts; and
the entity administering the program must be independent of any of the three
branches of the federal government.79

Based upon these principles federal assistance grants could fund an independent Center for
Indigent Defense Improvement in each state requesting such assistance. Recognizing that a onesize-fits-all approach to standards is unworkable given the number and complexity of variables
that impact defense representation, the Center‟s first task would be to conduct an audit of the
indigent defense delivery systems of each county in the state. Using the methodology outlined
above for conducting Workload Assessments, the audit would determine the need for additional
attorneys, investigators, and other support personnel. Each county would then have its own
individually tailored workload standards.
After determining appropriate staffing levels, the Center would then certify that a county
is in constitutional compliance when those staffing levels are met.80 Upon satisfaction of these
requirements the county would then be reimbursed by federal grants equaling the amount
required to bring the county‟s indigent defense system into compliance with its own locally
established standards. A condition of continued reimbursement would be a requirement that the
Center receive from each county basic statistical data sufficient to permit the Center to monitor
the health of the indigent defense delivery system. In the event excessive caseloads reappeared
and were not corrected within a reasonable period, the Center would have the power to revoke
the county‟s certification and stop reimbursement. The negative publicity from de-certification,
the legal impact this would have on ineffective assistance of counsel claims arising from that
county (as well as providing a basis for a lawsuit to order compliance), and of course, the
financial impact of withdrawal of federal reimbursement, would provide strong incentives for
voluntary compliance with the maximum workload levels established by the Center.
78

ABA STANDING COMM. ON LEGAL AID AND INDIGENT DEFENDANTS, THE CENTER FOR DEFENSE SERVICES: A
DRAFT DISCUSSION PROPOSAL FOR THE ESTABLISHMENT OF A NONPROFIT CORPORATION TO STRENGTHEN INDIGENT
DEFENSE SERVICES (1977). Copy #37 of the Discussion Draft is on file with the author, who as National Director of
Defender Services of NLADA participated in drafting the proposal. In 1979 Senator Edward Kennedy became
involved in sponsoring a bill to create a center for defense services. Defense Services Bill Still in the Works, 65 ABA
JOURNAL 1629 (1979).
79
ABA STANDING COMM. ON LEGAL AID AND INDIGENT DEFENDANTS, supra note 78 at 53-54.
80
The author is indebted to Marshall J. Hartman, former National Director of Defender Services for NLADA who
originally proposed the idea that defender offices should be accredited the same as police departments and
departments of correction. In compliance with national standards, certification would also be conditioned upon the
professional independence of the Public Defender being assured. See ABA STANDING COMM‟N ON LEGAL AID AND
INDIGENT DEFENDANTS, TEN PRINCIPLES OF A PUBLIC DEFENSE DELIVERY SYSTEM (2002). This could be done by
creating an independent nonpartisan Board of Trustees to oversee the office.

14

Although obtaining funding for indigent defense will be difficult in the short term, given
current economic realities, there are nevertheless many areas in which savings can be realized if
we rethink how we spend our criminal justice dollars. The California Commission on the Fair
Administration of Justice, for example, concluded that the state could save $126.2 million if the
death penalty were to be abolished in favor of life without parole.81 Reclassifying some nonviolent misdemeanor offenses and making them infractions, scaling back mandatory minimum
sentences instead of constructing new and costly prisons, and reforming the bail system so that
the percentage paid by defendants to a private bail bondsman goes instead to the government, are
examples of other alternatives that could also be considered.82
V.

Conclusion

We often lose sight of the fact that the average American, if accused of a serious crime,
does not have the financial resources to obtain quality legal representation and the investigative
and other supporting services necessary for an adequate defense.83 All Americans therefore have
a stake in ensuring that publically provided defense services deliver representation of the highest
quality because anyone‟s son, daughter, relative, or friend could become caught up in the web of
the criminal justice system and be wrongfully accused. Sadly, Gideon’s promise of equal justice
for all, regardless of wealth, remains unfulfilled after almost half a century. By recognizing that
the period from arraignment to trial is a critical stage at which an indigent accused must be
provided with counsel‟s assistance, we take an important first step in turning back the crisis
facing the delivery of indigent defense services. In taking that step, we renew our commitment
to restoring confidence in the fairness of our criminal justice system.

81

CAL. COMM‟N ON THE FAIR ADMIN. OF JUSTICE, FINAL REPORT 156 (2007), available at
http://www.ccfaj.org/documents/CCFAJFinalReport.pdf.
82
Illinois, for example, abolished commercial bondsmen in 1963. See 725 ILL. COMP. STAT. §5/110-7 (West 2011),
upheld in Schilb v. Kuebel, 404 U.S. 357 (1971).
83
More than eight out of ten criminal defendants prosecuted in California Superior Courts, for example, require
appointment of counsel. Benner, Presumption of Guilt, supra note 1 at 311. A nationwide poll conducted by
Bankrate.com reported that fewer than four out of ten American adults have an emergency savings fund. Laura
Bruce, Bankrate Survey: Most Americans Fail the Emergency-fund Test, BANKRATE, June 21, 2006,
http://www.bankrate.com/brm/news/sav/20060621a1.asp.

15