Public defenders often ask for equal funding for their office and the District Attorney’s Office. Specifically, they claim that their offices are underfunded because they receive less than the District Attorney’s Office. Here’s a tweet from a public defender asking for “parity” of funding between the public defender’s office and the district attorney’s office.
This claim has the veneer of fairness to it, especially to people unfamiliar with the system, who see the two agencies as flip sides of the same coin. But the claim does not stand up to even a short overview of the facts. But type of rhetoric persuades some people. Here’s an article with a headline describing public defenders as having “the odds stacked against them” against “better resourced district attorney’s offices.” The argument worked on the New Orleans City Council:
Is it true that the Public Defender’s Office should have equal funding to the District Attorney’s Office?
The District Attorney’s Office Has More Cases Than the Public Defender’s Office
In Los Angeles, the public defender’s office handles approximately 70% of the felony cases prosecuted in the County. The Alternate Public Defender (used when the Public Defender has a conflict of interest) handles about 15% of the felonies. The remainder is handled by private lawyers of two types. First, bar panel lawyers are paid for their time by the state and are used when both the Public Defender and the Alternate Public Defendant have conflicts of interest. The second type are truly private lawyers, paid directly by the defendant.
By contrast, the district attorney’s office handles 100% of the felonies prosecuted in the County. In a given day in court, a prosecutor will handle cases defended by public defenders, alternate public defenders, bar panel lawyers, and private attorneys. A deputy public defender’s day in court is different. All of her cases are prosecuted by a deputy district attorney.
More cases means more attorneys. To continue with our Los Angeles example, there are 600 deputy public defenders and roughly 850 deputy district attorneys in that county.* In other words, the PD’s office is 70% the size of the DA’s office. This tracks nicely with the fact that they prosecute 70% of the felony cases. In Alameda County, there are 100 public defenders and 150 district attorneys. Statewide, there are 4,113 prosecutors and 2,580 public defenders.
Do Public Defenders Have a Leg to Stand On?
Public defenders do important work: it’s hard to disagree with them when they say they need more money. To be clear, more money is needed for virtually every agency involved in criminal justice, including public defenders. But, needing more money generally is different than arguing that public defenders are under-resourced compared to district attorneys.
Criminal defense attorney Paul Pfingst was elected as district attorney between 1994 and 2002. He said there “is little value” in comparing the district attorney’s and public defender’s budgets, because their respective responsibilities are so different.
Let’s go through some of the public defender’s arguments about why their office should get more money, as compared to the District Attorney’s Office.
PD Claim: Prosecutors Choose Their Own Caseload
Public defenders claim that prosecutors choose their own caseloads. Contrast public defenders, who learn of a new case when they are given the filing packet, whether they want it or not. This argument seems to imply that prosecutors can simply file fewer cases if they are low on resources.
This rests on the shaky assumption that if a prosecutor doesn’t have the resources to prosecute a case, they will just ignore it. Statistics suggest that such a case will get filed anyway, and the prosecutor will attempt to make room for it by plea-bargaining away other cases. In other words, short-changing prosecutor’s offices doesn’t result in fewer cases, it results in more leniency. Also, this argument is silent on why the prosecutors should get paid less per case than public defenders just because they make filing decisions.
PD Claim: A Prosecutor’s Job is Easier
Public defenders also claim that prosecutors have an easier job.
The DA’s office has control of cases, we don’t. They know which cases are going to die and put no work into them. We still have the person who is charged with that crime who wants status updates, maybe we’ve sent out investigators out. Maybe we have to file motions to dismiss and they never respond because they know full well they have no case and they would rather a judge say it’s dismissed because then the DA can blame the court instead of saying “we dismissed it.”
(Ole TD @timmydhue on Twitter.)
Deputy public defenders often forget that it takes work to decide which cases should be filed and which should be declined. Paul Pingst, defense attorney turned DA, said prosecutors have to investigate many more cases than those that end up in court. They have to handle victims, witnesses and evidence for every referral from police and sheriff’s departments; and they must prepare every complaint as if it will land before a jury. “If you don’t make a convincing case you’re going to get more trials,” he said. “If you cut corners on the investigation, then defense thinks they have a shot at winning at trial.” In other words, cases don’t simply spring into being. Filing a case is a lengthy and delicate task that public defenders don’t do.
Deputy district attorneys must often shore up weak areas in their cases by directing criminal investigations. On one end, this might mean listening to jail calls. On the other, this could mean overseeing a wiretap, executing search warrants, or interrogating witnesses. Prosecutors are often called out to especially important crime scenes, such as murders, to assist before a case is ever presented.
The claim that prosecutors have easier jobs is most jarring when it is time for trial. For a prosecutor, putting on a criminal trial is like putting on a play. You have to get evidence to court, you have to get witnesses to court, you have to get officers to court. Unlike a play, the prosecutor has no idea what any of these people are going to show up, much less what they are going to say, and must able to adapt to circumstances as they happen. By contrast, the public defender rarely, if ever, puts on a defense case. They usually rely only on cross-examination of the People’s witnesses. There are exceptions to this rule. But viewed in the aggregate, a defense case is vanishingly rare, and a defense case with more witnesses and evidence than a prosecution case is unheard of. In other words, trial preparation for a defense lawyer is an order of magnitude lighter than for a prosecutor.
PD Claim: Prosecutors Don’t Have Clients
“The difference is that prosecutors don’t have clients. Full stop. They do not represent people; they represent the State. There is no just comparison between an unaccountable imprisoner of the dubiously convicted and a defender of humans when the defenders always get paid less.” (Alexander Ignatiev @alexIgnatiev on Twitter.)
Speaking as an unaccountable imprisoner of the dubiously convicted, I find a lot wrong with this. First, the prosecutor does have a client: it’s the people in the community. Second, this community includes crime victims, who are often extremely involved, especially in serious cases like murders, rapes, or assaults. The prosecutor is also responsible to the officers who investigated the case, and who want to see it handled effectively. And finally, the prosecutor is susceptible to pressure from the media in ways that the public defender is not.
Finally, for anyone who doesn’t know, deputy public defenders and deputy district attorneys are on the exact same pay scale.
PD Claim: Prosecutors Have Better Staff
Others complain that the DA’s office has massive investigative units and support staff that public defenders’ offices lack. (Rob Harris @RealRobH1 on Twitter.) Although the public defenders have investigators and support staff of their own, they believe they are inadequate. Without any data in support of this argument, it might just be generalized complaining that’s not grounded in fact. It would be hard for a public defender to affirmatively show that the secretaries and paralegals don’t work as effectively as their DA counterparts.
But what about the police? Defenders seem to believe that the police only work for the prosecution, and not the community in general, which includes the defendant. The reason the police don’t appear to work for the defense is that prosecutors don’t bring cases against the advice of the police. Those cases are simply not filed. The work the police do to exonerate the innocent is done almost entirely out of the courtroom, and out of sight of the public defenders who make this kinds of arguments.
Public Defender’s Offices and District Attorney’s Offices do different things. Since the DA’s handle more cases, they get more resources. This is simple enough that those of us in the field understand it implicitly. But people outside the field can be misled. There are public defenders on Twitter trying to mislead people in order to get a larger budget. That’s wrong. PDs, and everyone in the criminal justice system, can make the case for more money with the truth, and nothing but the truth, so help us God.
An overview of the problem by The San Diego Union-Tribune.
The California State Senate Committee on Public Safety studied the State Public Defender to determine appropriate workloads.
The cleverly titled article The State Never Rests looks at whether excessive prosecutor caseloads harms criminal defendants.
* The LADA website says approximately 1,000 attorneys, however, over a hundred have left in the wake of the election of District Attorney George Gason.