Budget advocacy: Fighting to ensure our department can provide quality representation
As a department, our goal is to see resources diverted from the criminal legal system and reinvested in programs that support people and communities. We want to see the footprint of this harmful system shrink, not grow. At the same time, it’s imperative that public defense is well-resourced and fully staffed and that we’re able to keep up with the demands placed on us by those agencies further upstream in the system. Parity is essential in helping to ensure quality representation for our clients.
To that end, we engaged in budget advocacy and launched new practices in 2021 – all with an eye to trying to ensure DPD has the resources and staff to meet the ongoing needs of our clients and to reduce the size of our attorneys’ sometimes staggering caseloads. Here are a few highlights.
Last summer, the County Executive sought a $30 million supplemental appropriation for the criminal legal system to address COVID-related backlogs. Anita Khandelwal told the County Council to “proceed with caution and care” before investing more funds into a system that is racially disproportionate and harmful to BIPOC communities. At the same time, she said, she supported the Executive's proposal, since it gave approximately similar resources to all three entities involved in the criminal legal system (our department, the prosecutor’s department, and the judiciary).
We also successfully advocated for the ability to hire third-year law students within a two-week window, even if it pushes us above our allowed employee (or FTE) cap. This helps to ensure we can hire some of the best students and brings an equity lens to this process. Previously, we made offers to third-year students with a start date within a five-month window, based on openings that we expected would occur. But this disadvantaged students with limited financial resources and disadvantaged DPD when trying to attract strong candidates. Now, we can offer 3Ls a start date within two weeks of their acceptance, pending passage of their Bar exams.
Another issue we’ve faced is the need for greater flexibility in hiring. Filings, driven by the prosecutor, often spike, creating situations that are untenable for our caseload-carrying attorneys. To address such fluctuations, DPD in 2020 successfully advocated for an “FTE trigger,” allowing us to hire an additional career service attorney each time the number of assignments to DPD exceeds, for two months in a row, the equivalent of a single attorney’s caseload. We did not have to use this tool in 2021 – filings fell slightly last year – but we believe it will prove helpful if filing spikes occur again.
Finally, in 2021 we established a contract with outside counsel to take on cases when our attorneys are at capacity – an innovative approach to ensure those clients we can’t help in-house due to high caseload levels receive quality representation by outside attorneys.
We also made clear that these additional funds should be used to address the backlog – the number of clients languishing in jail – rather than empowering the prosecutor to file hundreds of new cases.
Ultimately, DPD received an additional $10.7 million to increase staffing and another $5.7 million to address new post-conviction work. In a better world, this money would have gone to housing, health care, and community-based organizations that meaningfully support our clients, and we continue to push for budgets that shrink the size of the criminal legal system and invest in programs that help rather than harm communities.
Even with additional hiring flexibility and other tools, DPD’s defense teams faced high caseloads in 2021. "Filings were down last year, but due to the pandemic and the court delays it caused, our attorneys – especially those in our felony units – have had to carry far more open cases, adding to sometimes staggering caseloads," said Gordon Hill, DPD's deputy director. The department continues to advocate for the development of a more accurate and realistic staffing model that reflects the current state of indigent defense, as well as other tools that can support our defense teams in achieving more manageable workloads. And we continue to advocate for programs and policies that shrink the size of a system that is harmful, racist, and ineffective.