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The Public Defender System

Summary

February 1992


In 1989, the Legislature changed the way Minnesota's court system is financed. Part of this plan involved the state assuming financial responsibility for public defender services from counties. All ten judicial districts became part of the state public defense system on July 1, 1990. In one year (fiscal year 1990 to 1991), state appropriations for public defense rose from $2.7 million to $19.8 million. Simultaneously, the responsibilities of the Board of Public Defense, which oversees the state system, increased.

Given the state's larger financial role and rapid growth in the criminal justice system generally, legislators requested more information about the organization and operation of the public defense system. Legislators also expressed concerns about conflicts they observed within the system and about the adequacy of changes made to its structure during the 1991 legislative session.

For these reasons, the Legislative Audit Commission asked us to study the state's public defender system. Our study addressed these questions:

  • How has Minnesota's public defender system changed since it was established in 1965? How is it organized today?
  • How well is the system administered? Does the current organizational structure provide for sufficient accountability and financial oversight?
  • How does Minnesota's public defender system compare with those in other states?
  • What changes are needed to improve the public defender system?

To answer these questions, we interviewed staff and members of the Minnesota Supreme Court, Board of Public Defense, and State Public Defender's Office, the ten chief district public defenders, and others knowledgeable about the state's system. We analyzed information on budgets, caseloads, staffing patterns, and district services. We attended board meetings and reviewed legislation, agency documents, board minutes, other states' statutes, and professional literature. We contacted national organizations and talked with public defender staff in other states.

In general, we found Minnesota's public defender system to be in transition and under stress, as it is in many other states. Caseloads are rising, financial strains are increasing, and there continue to be many difficult organizational issues to resolve. Historically, the public defender system has been locally based and public defenders have operated with considerable autonomy. Therefore, movement toward a state system has been difficult and, at times, highly contentious.

The board has been slow to develop management policies and procedures and some districts have resisted the board's efforts to establish greater state administrative control. The strongest resistance has come from Hennepin County, in part because it already has an established fulltime office that operates under the county's administrative policies and salary structure.

In spite of local resistance and the state board's past performance, we come down on the side of strengthening state control further. Our recommendations are rooted in the simple concept that by assuming greater financial responsibility for public defense, the state has a right--and an obligation--to ensure that its funds are being well managed. Our recommendations are designed to enhance the state's ability to fulfill this obligation.

We recognize, however, that changes in structure and administrative practice alone will not resolve many of the conflicts that currently exist within the public defender system. Therefore, we also hope that people in the system can find a way to come together and focus on the common purpose of providing good public defender services.

There are many aspects of the public defender system that we did not examine. We did not evaluate the quality of legal representation provided and we did not closely examine the management or cost-effectiveness of operations in any district offices. Consistent with the charge we received from the Legislative Audit Commission, we focused principally on the organization and administration of the system at the state level.

Minnesota in the National Context

The right to legal representation in certain criminal cases is guaranteed by the U.S. Constitution. Under Minnesota law, anyone accused of a felony, gross misdemeanor, or probation or parole violation is entitled to representation, including juveniles. Public defenders are appointed by the court to represent criminal defendants who cannot afford to pay for a private attorney. Judges determine if a defendant is indigent. According to information provided by the Supreme Court, in 1990, almost 75 percent of felony and over 50 percent of gross misdemeanor defendants in Minnesota were represented by public defenders.

The changes occurring in Minnesota's public defender system are similar to national trends. In particular,

Like the nation as a whole, Minnesota's public defender system is experiencing growth in caseloads and costs, with costs increasing faster than caseloads. Between 1980 and 1990, public defender cases in Minnesota increased by 151 percent while costs increased by 186 percent. Because representation is legally required, the public defender system has no control over the volume of cases it must handle. Caseload size is determined by state sentencing policies, the practices of courts, prosecutors and police, and changes in crime and public opinion toward crime. While growth in caseloads is the main reason public defense costs have increased nationally, another is that compensation and private attorney rates have increased.<FN Bureau of Justice Statistics, <MI>Bulletin<D>, "Criminal Defense for the Poor, 1986," 2.> County and state governments are the two primary funding sources for public defense. Traditionally, programs were established at the local level under the auspices of the courts, which are responsible for ensuring that constitutional rights are protected. Until recently, public defense has been handled in most jurisdictions in the U.S. by the private bar through court-appointed attorneys. But the ability of the private legal profession to meet the demands placed upon it by the rapid growth in cases over the past 15 years has been severely tested. Two additional trends are evident:

In Minnesota, as in other states, the public defense system has moved away from direct court control, and the state has assumed a larger role in financing public defense. A number of states, including Minnesota, are replacing their court-appointed counsel programs with fulltime public defender offices or contract attorneys. Also, more states are shifting from county-funded programs to fully or partially state-funded programs. In the move to state financing, many states have given administrative authority for the system to an executive branch agency, partly to avoid potential conflicts of interest caused by judicial supervision. However, there is no dominant organizational model for administering public defense because it is in transition in most states. In Minnesota, the state's assumption of financial responsibility for public defense is tied to the gradual unification of the state court system, which began in the late 1950s, and the property tax reform movement of the 1980s. At the present time, the state pays for felony and gross misdemeanor public defender services in all ten judicial districts and misdemeanor and juvenile services in three districts (the second, fourth, and eighth). As of July 1, 1992, the state will assume financial responsibility for misdemeanor and juvenile services in two more districts, the third and the sixth. The plan is for the state eventually to be responsible for public defense services in all districts. Although some takeover costs were funded by new state appropriations, most of the initial costs were paid for with offsets or reductions in local government aid (LGA) and homestead and agricultural credit aid (HACA).

Description of Minnesota's Public Defender System

Minnesota's public defender system is described in below. Trial court public defender services are organized within ten districts that correspond with judicial district boundaries, as illustrated on the following page.

We compared districts and found that:

In the eight part-time districts, there are no public offices for district public defenders. Only the second (Ramsey) and fourth (Hennepin) districts have fulltime public defender offices, which employ 64 percent of the fulltime equivalent (FTE) personnel in the system. In the remaining eight multi-county districts, the chiefs and assistant public defenders are attorneys in private practice who agree to handle cases in a given geographical area. All of them work out of their own private law offices.

We also found that:

Districts vary in terms of the type and level of services offered, compensation and benefits provided to attorneys, caseloads, and costs. For example, there are significant differences among counties and judicial districts in the extent to which juveniles are represented and whether criminal defendants have legal representation at their first court appearance.<FN "Report of the Juvenile Representation Study Committee to the Minnesota Supreme Court," June 5, 1990; and Supreme Court data on type of representation in criminal cases.> Also, we found wide differences among districts in items covered in their budgets. The fulltime districts offer a full range of employee benefits. Among the part-time districts, however, four offer no employee benefits, and others cover limited benefits for only certain employees. Similarly, some districts receive rent allowances, but most do not.

Problems with the information on caseloads and costs make comparisons across districts difficult. Of the ten districts, only the fourth (Hennepin County) has a computerized information system for tracking cases. Data kept by Hennepin and Ramsey Counties are not compatible with information collected for the rest of the districts. <FN Hennepin and Ramsey Counties keep data on cases opened during the year, while data for the rest of the state are on cases terminated.> Also, because of inconsistencies in the data submitted monthly by part-time attorneys, board staff told us it was not analyzed regularly. We estimated the accuracy of this information and determined that, while there are problems, it is similar to that kept by district chiefs and the Supreme Court. <FN There are some problems with the accuracy of the Court's data as well.>

With these qualifications in mind, we found that:

  • Public defender caseloads have increased in the last ten years, but some districts were affected more than others. In the first, seventh, and tenth districts, which include Twin Cities suburban counties, St. Cloud, and Moorhead, caseloads have tripled since 1980. The lowest caseload increase (29 percent) occurred in the sixth district (northeastern Minnesota), which has experienced population loss. More than 70 percent of the state's caseload originates in the Hennepin and Ramsey districts.

We compared district costs and workloads and found that: *Some districts are better off financially than others and are able to spend more time and money on each public defense case.

For example, in the seven districts that provide similar services and define a case similarly, the average cost per case ranges from a low of $245 in the tenth district to $618 in the sixth district. In the three districts that provide additional, lower cost services, the average cost per case ranges from $158 in the second district (Ramsey) to $288 in the fourth (Hennepin). Since a felony case takes longer to conclude, a high felony caseload increases the average time attorneys spend per case. Taking this factor into account and converting part-time hours worked into FTEs, there are wide variations in caseloads and average hours spent per case across the part-time districts. Each public defender in some districts handles nearly twice as many cases as those in other districts. There is also variation in the compensation paid to public defenders. In the fulltime districts of Hennepin and Ramsey Counties, public defenders remain county employees, are members of county bargaining units, and are paid the same compensation as county attorneys. Attorney salaries in these districts range from about $32,000 per year for beginning attorneys to approximately $79,000 for senior attorneys.

While compensation differs among the part-time districts, we found that:

  • The variation in attorneys' hourly rates is greater within districts than across districts. The average hourly rate (salary plus extras) ranges from just over $38 in the sixth district to $52 in the ninth district, a difference of about $13. Within each district, the range in hourly rates far exceeds $13. For example, in the ninth district the lowest paid attorney earns between $14 to $15 per hour, while the highest paid attorney earns $170 per hour. We suspect these differences are a result of the contracting method used, as described below.

The differences in services, workloads, and costs that we observed are probably vestiges of the county-based funding system that existed prior to July 1, 1990. Districts entered the state system at the funding levels and with the organizational arrangements that existed at the time.

An Assessment of the Public Defender System

We assessed the structure and administration of the state's public defender system to determine whether they provide for sufficient accountability and oversight by the state. Overall, we conclude that:

  • The current structure of the public defender system and its administrative procedures have not provided enough accountability to ensure that the state's monies are being well spent.

Several factors contribute to the accountability problems we observed.

First,

  • The structure permits unusual independence, with the public defender system having more autonomy than most state agencies typically have. Appointments to the Board of Public Defense, which oversees the state system, are shared by the Governor and the Supreme Court. The public defense system is technically part of the judicial branch, but it is not under the Supreme Court's direct control. According to the Department of Finance, the board's spending plan also permits broader latitude and discretion than most state agencies have. Our interviews with other states suggest that most state-run programs are not permitted the high degree of autonomy found in Minnesota. State-funded public defense programs are typically placed in the executive branch or, less often, under the direct control of the Supreme Court.

Second,

  • Decision making and administrative authority are fragmented. The board allocates money and selects the state public defender and the ten district chief public defenders, but as of July 1, 1991, the state public defender has overall administrative responsibility for the system. Before that, the board's staff, which consists of five people headed by a chief administrator, were responsible for establishing administrative procedures. Legislation passed in 1991 moved the administrative unit under the state public defender and gave him more authority to set policies and standards to guide district operations. It is too soon to assess the effects of these changes. Under the current structure, however, the state public defender has no hiring or appointment authority over the districts. Furthermore, the board appoints chief public defenders to a four-year term, which limits the board's ability to exercise direct control over district operations.

Finally,

  • Those with oversight and management responsibilities--the board, its staff, and the district chief public defenders--have not fully exercised the authority they do possess. The board could have used its funding, hiring, and appointment powers to establish expections and hold people accountable for meeting them. But neither the board, nor the chief administrator and his staff, nor most of the district chiefs have yet established the kinds of policies, procedures, and financial controls normally found in a well-run organization.

Administrative Weaknesses

We examined the administrative procedures that have been established for the public defense system and found problems that hinder accountability. These include the following:

  • "Host" county administration, in which counties with no formal authority over the program disburse state monies;
  • The method of paying host counties for administrative services, which is considerably more expensive than the previous method;
  • Assigning major administrative duties to part-time attorneys who are not sufficiently trained in management and administration;
  • A lack of clarity with respect to who the employer is in the part-time districts;
  • The method of contracting with part-time attorneys, in which attorneys are not paid for hours worked or actual work performed; and
  • Having fulltime district employees in Hennepin and Ramsey Counties remain county employees while entirely funded by the state.

These problems stem from the hybrid administrative structure and procedures currently in place. They indicate limited progress in moving from a county- <R>financed system to a statewide system. Since the state administrative office was established in 1988, it has provided limited fiscal oversight of the district chiefs and has developed few formal policies and procedures for them to follow.

  • The Part-time Status of Public Defense

All districts reported that they are experiencing personnel problems of one kind or another, which they attribute to inadequate funding. However, we found that:

  • Several outstate districts are experiencing serious turnover and recruitment problems that cannot be solved under the current approach of relying exclusively on part-time, contract attorneys. Under the contracting method used, the more hours a part-time attorney works on public defense cases, the less he or she earns per hour. On average, the part-time assistant public defenders outstate spend approximately 43 percent of their time on public defense cases and earn about $39 per hour. However, contract attorneys who work one-quarter time or less on public defense cases earn $46 per hour, while those working fulltime hours or more earn $22 per hour. Nearly all of the contract attorneys pay office overhead expenses out of their earnings.

As attorneys approach fulltime hours on public defense cases, they have difficulty maintaining their private practice. The districts with the most serious personnel problems--the fifth and the seventh--are those with higher <R>proportions of contract attorneys working nearly fulltime hours. In the fifth district, for example, 47 percent of the assistants work three-quarters time or more on public defense, while in the seventh district, 50 percent do. Our analysis implies that the growth in public defense caseloads has exceeded the capabilities of the current service delivery system, at least in several of the eight part-time districts.

Consistency with State Goals

The one clear goal of state financing is ensuring that state monies are spent in proportion to the volume and difficulty of public defense cases. This implies that the board and its staff need to assess inequities across the ten public defender districts and make decisions to correct them. However, we found that:

  • The board has made limited progress toward developing the kind of information needed to allocate funds equitably among districts.

In 1989, the board asked the Legislature for $100,000 for a weighted caseload study, which was to provide information on caseloads across districts. However, we found that this study does not provide enough information to be used as the basis for allocating funds differently. Furthermore, although the board identified the need for better information more than six years ago, it still does not have a uniform management information system that monitors cases and hours across districts.

We also conclude that:

  • It is unclear what is the best administrative structure for the public defender system.

All states, when they create a state administrative structure for public defense, have to decide whether to organize it along the jurisdictional lines of the courts or those of prosecutors. In its hiring, the public defender system competes directly with the prosecutorial system, which continues to be organized at the county level in Minnesota. Some people argue that to get quality personnel, public defender salaries have to be equivalent to county attorney salaries. Alternatively, there are arguments in favor of a unified state salary structure, which leads to greater uniformity and is the approach adopted by the state court system. Administrative structures vary depending on the amount of local autonomy permitted. The question of how best to organize Minnesota's public defense system has yet to be resolved.

Planning and Decision Making

Overall, we found that:

  • The board and its administrative staff have not done enough systematic, long-range planning.

Creating a statewide system out of a locally based system is a difficult undertaking, particularly when there are significant differences between urban and rural districts. We think that the board and its staff may have moved too quickly to assume responsibility for the system without first establishing adequate financial controls and administrative policies and procedures. For example, counties continue to perform financial and administrative duties, although they no longer have any formal authority over public defense. Also, some nonmetro districts are informally hiring fulltime assistant public defenders. Yet the board has not formally decided whether fulltime public defenders will be county or state employees and personnel policies have not been established.

Although the board has recently begun to formalize its procedures, an informal decision-making style prevailed throughout most of its history. We also think that the board's formal responsibilities may be too great for a part-time board to handle. Furthermore, there is disagreement over which decisions should be made by the board and which by the staff. In addition, we doubt that current administrative staff, as a whole, possess all the skills needed to administer a statewide public defense system. Our interviews with other states identify the skills required by administration in a state-run public defense system. These include: high-level managerial experience, computer and analysis skills, strategic planning, human resource/personnel management, and financial management skills (budgeting, accounting, and contract compliance). Current staff possess some of these skills, but not others.

Recommendations

Given the board's performance, a strong case could be made for abolishing it and giving either the Governor or the Supreme Court the authority to appoint a state public defender, who would be solely responsible for the state system. Most state programs are administered through a department with a single person at its head. However, we recommend:

  • The board should be retained with shared gubernatorial-Supreme Court appointments. But the state public defender should be given clearer administrative powers over the public defense system. The state public defender should have the authority to appoint, with the board's consent, chief public defenders and to contract with districts that establish an adequate system of public defense that operates within the state system.

This option does not eliminate the board, but it significantly realigns responsibilities and powers within the public defender system. We think this realignment will clarify responsibilities and authority and lead to greater accountability.

Our recommendation is based on the following rationale. Public defense does not fit easily in either the executive or judicial branch. The Court has the responsibility for ensuring that constitutional rights are protected, but the public defense system also needs independence from the judiciary. If responsibility is shared, a board is necessary. Also, policy and oversight boards have certain advantages, such as representation of diverse viewpoints. And they can give an executive added independence from political pressure. Finally, our recommendation builds on the Legislature's 1991 action by further clarifying the division of responsibilities between the board and the state public defender, and by enhancing the administrative accountability of the system.

We also recommend that:

  • The state public defender should develop a plan for improving the administrative structure of the public defender system. The plan should be reviewed and approved by the board and presented to the 1993 Legislature.

We reviewed several different models for how the system could be administered. Each of the following models provides for accountability, if accompanied by a formula for distributing funds equitably among districts and explicit policies, standards, and requirements:

  • State agency with centralized administration and a uniform salary structure;
  • State agency with decentralized administration at the district level, with a state or district-level salary structure; or
  • Grant-in-aid or contract program, with the grants or contracts awarded to counties, district agencies, and/or nonprofit legal corporations.

Currently, an important consideration in choosing a model is how to incorporate the existing fulltime offices in Ramsey and Hennepin Counties into a statewide system. Because these offices are at such different stages of development from the other districts, we think it would be difficult to fully incorporate them into a centrally administered state system immediately. That is why we propose giving the state public defender the authority to contract with a district that has established an adequate system of public defense. Under this approach, the state public defender could make a formal agreement with Hennepin and/or Ramsey Counties to provide public defense services using state money until these offices can be more fully incorporated into the state system.

We also think that decisions about how to administer the public defense <R>system should be based on the outcome of a planning process that assesses the financial costs of alternative administrative arrangements. However administrative and management responsibilities are divided among the state, districts, and counties, the plan should provide for the following: appropriate training for people with management responsibilities; personnel policies and financial controls that conform with those found in state agencies; and better supervision of personnel.

As part of this plan, the state public defender should:

  • Develop an alternative approach for providing public defense services for those outstate districts encountering serious recruitment problems, which may involve the creation of some fulltime positions. This recommendation is based on our finding that districts with high proportions of contract attorneys working half-time or more are experiencing turnover and recruitment problems that apparently cannot be solved by relying exclusively on part-time attorneys.

We also recommend that the state public defender take the following steps to improve administration and accountability of the system:

  • Obtain an independent evaluation of required administrative skills, and restructure or retrain administrative staff to ensure that people with the appropriate skills are on board;
  • Change the contracting method to pay attorneys for hours worked or cases handled, and implement contract monitoring procedures; and
  • Adopt uniform budget categories and a more detailed spending plan that clearly identifies administrative costs, direct service costs, and grants or contracts.

In order to make the board a more effective decision-making body, we recommend that the board should:

  • Continue to formalize its policies and procedures;
  • Clarify its relationship with the state public defender and his staff; and
  • Develop a strategy--a process and a formula--for allocating state dollars to achieve and maintain equity.

Together, the state public defender and the board should:

  • Make the development and installation of a management information system a high priority; and
  • Put into effect a strategic planning process to clarify goals, set priorities among issues, and develop detailed plans for solving problems.

The board and the state public defender should be prepared to demonstrate to the 1993 Legislature that their plan for improving the administration of the public defense system is the most cost-effective approach of the alternatives considered, based on objective information.

 

 

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