As Baltimore City Public Schools resumed in-person learning after going virtual at the beginning of the COVID-19 pandemic, Assistant Public Defender Sherie Scott found herself at the Edward F. Borgerding Court Building on Wabash Avenue in 2022 representing 10 parents whose children had racked up unexcused absences.
She said she asked for postponements and tried everything she knew how to do to rectify the situation. The judge, she said, sentenced three parents to jail time.
Scott said she needed space and time to breathe after court wrapped up. She said did her best but felt that the outcome could have been so much different.
“You begin to feel you’re not able to put in the time and the resources for each individual client,” said Scott, who was recently promoted to the Felony Trial Division in Baltimore. “The Constitution guarantees effective counsel. Are we able to be as effective as we could be because we have so many cases?”
“It is emotional. You’re dealing with people’s lives,” she added. “It’s a hard job. I love it. But it’s hard.”
To meet new national standards for workloads, the Maryland Office of the Public Defender calculated in its 2023 annual report that it would need to increase the number of attorneys who represent clients in adult criminal cases alone more than threefold. That’s not counting assistant public defenders in specialized divisions as well as paralegals, investigators and social workers.
“The reality is we do not have sufficient staffing,” Maryland Public Defender Natasha Dartigue told reporters during a recent media briefing. “The current workloads are not sustainable,” she added toward the end of the presentation.
What is the National Public Defense Workload Study?
The RAND Corp., National Center for State Courts, American Bar Association Standing Committee on Legal Aid and Indigent Defense and Lawyer Hanlon in St. Louis collaborated to produce the National Public Defense Workload Study, which was published on Sept. 12 and details how many hours assistant public defenders should spend on 11 specific types of cases to provide reasonably effective representation.
For instance, a case that carries a potential sentence of life in prison without the possibility of parole requires 286 hours. That’s compared to 13.5 hours for a probation or parole violation.
The study assumes that assistant public defenders have 2,080 hours available each year — that’s 40 hours per week, 52 weeks per year — for case-related work. The standards note that’s an “extremely high estimate” because it does not factor in time off.
Maryland has continued to rely on workload standards from 2005.
Under the new national standards, Baltimore would need to increase the number of assistant public defenders from 88.5 to 295.6, according to the report. Meanwhile, Baltimore County would need to go from 42 to 182.2, and Prince George’s County from 49 to 177.6.
In fiscal year 2023, there were 120,111 new matters assigned to assistant public defenders, the report states. That’s higher than each of the three previous fiscal years but more than 54,000 cases fewer than fiscal year 2019.
Assistant public defenders handled a total of 187,738 total active matters in fiscal year 2023, according to the report. The office provides representation in about 90% of criminal cases in Maryland.
‘Public defenders are providing a crucial service to our community’
“So much has changed from 2005 to today in how criminal cases are litigated and the amount of work they require. And we knew that was true,” said Sally Larsen, an assistant public defender in the Post Conviction Defenders Division and secretary of the Maryland Defenders Union, which represents more than 600 employees statewide. “But to see the stark number and the disparities between where we are and where we need to be is very striking.”
The Maryland Defenders Union, she said, is pleased that the office recognizes that it is understaffed and looks forward to working together on adding more employees. At the same time, Larsen said, the union would like the agency to place a priority on recruitment and move to fill vacancies in positions that have already been allocated with greater urgency.
Gov. Wes Moore, a Democrat, pledged from the start to fill at least 5,000 of an estimated 10,000 vacant jobs across state government. At the same time, Moore has recently warned that there will be difficult decisions ahead to keep the state budget balanced.
Larsen noted that assistant public defenders often represent people who’ve aged out of the foster care system, those experiencing substance use disorder and mental health issues and individuals with developmental disabilities.
“Public defenders are providing a crucial service to our community. We are fighting for the most vulnerable Marylanders to protect their rights and to really help them to thrive,” said Larsen, who’s also a member of the American Federation of State, County and Municipal Employees Maryland Council 3′s Executive Board.
“When we suffer under a workload that compromises our ability to provide that care and that service, then all of Maryland really suffers.”
Most states on average have about one-third of the assistant public defenders needed to provide ethical and constitutional representation, said Stephen Hanlon, a principal at the Law Office of Lawyer Hanlon who co-produced the National Public Defense Workload Study. That’s except, he said, for Massachusetts and Washington, D.C.
“Maryland would be pretty normal compared to the rest of the states,” Hanlon said. “But that’s a serious problem, because lawyers are not allowed to do that — it’s against the law.”
“Our profession has really failed for half a century,” he later added. “It’s a service that we can no longer provide this way.”
‘Time is definitely the biggest challenge’
Assistant Public Defender Gabrielle Michel, who works in the Misdemeanor Litigation Division in Baltimore, said she’s carrying fewer matters than during her time in the Montgomery County Public Defender’s Office outside Philadelphia, where she frequently handled up to 150 cases.
But Michel said she feels that she’s busier in Baltimore. That’s because of how the courts are structured and the pace of cases.
Michel said there were a lot of intermediate steps before cases went to trial in Pennsylvania, and assistant district attorneys extended plea agreements much earlier in the process. She said she did not have issues getting judges to grant at least one postponement.
In Baltimore Circuit Court, Michel said, the first date after the initial appearance is trial.
“We’re expected to be trial ready case on every case,” Michel said. “And being trial ready requires so much more than pretrial conference ready.”
Though the most serious misdemeanors carry a maximum sentence of 2 1/2 to five years in prison in Pennsylvania, that’s not the case in Maryland. Second-degree assault is a misdemeanor, she said, but it carries a maximum sentence of 10 years in prison.
Every case now involves reviewing body-camera video, said Assistant Public Defender Amanda Savage, who works in the Felony Trial Division in Baltimore.
That’s including simple drug cases. So, if there were four to five police officers involved in an investigation, Savage said, that could add up to several hours of body-camera video to review.
When she worked for the New Jersey Office of the Public Defender in Essex County, Savage said, it would take her 20-30 minutes to review discovery in those cases, which usually consisted of a few police reports. She said she was not counting legal research and other case work.
Assistant public defenders, she said, also spend a lot of time learning different fields of forensic science to be able to challenge that evidence in court.
“Time is definitely the biggest challenge,” she said. “We have a lot of cases, and there’s a lot to review. And it’s very important to review everything. And we do review anything.”
But Savage said she believes that assistant public defenders effectively represent their clients in Maryland.
“I think that we do provide a high-quality representation for our clients,” Savage said, “regardless of the challenges.”