Michael Penrod’s daily routine typically involves a 35-mile commute to meet with his clients. Because clients tend to be poor, isolated and in need of legal aid, his workspace spans all of Navajo County’s nearly 10,000 square miles.
“Next week is just going to be hell for me,” he said.
The legal services Penrod offers, for felony defendants, are sought after by millions of citizens throughout the U.S. His team of five attorneys is never short of work. On an average month, each attorney works up to 100 cases. They range from felony charges of drug possession, to misdemeanors for loitering and sexual harassment.
Like public defender offices across the nation, Penrod’s team is overworked and understaffed. The national caseload standards for public defenders, which is set by the American Bar Association, is 750 cases a year, including a mixture of felony, misdemeanor and juvenile cases. This falls far below the average of 1,200 cases that Navajo County attorneys receive each year.
“We have to implement a turn-and-burn strategy for a lot of our cases,” he said. As a result, he admits it can be difficult to give each individual case the time and attention that clients usually require.
The constant churn of criminal cases from defendants who fall under the federal poverty line, which is a yearly income of $12,060 for individuals and $24,600 for a family of four, is a daunting task for any professional legal team. Over 30 percent of Navajo County residents fall under this threshold. Their right to legal counsel is guaranteed in the U.S. and Arizona Constitutions. But many legal experts claim that because of a lack of staffing and a disparity of resources, public defenders can’t effectively perform their role as advocates for the poor.
Attorneys like Penrod face an additional obstacle: Working in a vast, rural area makes each case require more traveling and time than cases in urban counties. According to a 2010 study published in the Arizona Law Review, attorneys working in more rural counties are more likely than those is more urban counties to face overloaded criminal dockets, receive smaller salaries and have access to fewer legal experts to assist in complex cases. Experts concluded that rural defendants are at a greater risk to be pushed into plea deals that are against their best interests.
A Constitutional Right Under Threat
In 1963, the Supreme Court affirmed the right to legal counsel for poor criminal defendants in the landmark case of Gideon v. Wainwright. Since the decision, billions of dollars have been devoted to legal reform initiatives and public defense projects across the nation. Local, state and federal agencies, in coordination with non-profit groups and universities, have enlisted thousands of attorneys and paralegals to try to uphold this right for poorer American citizens. Despite the vast effort, many legal advocates claim that public defenders do not have sufficient time, resources or staffing to effectively represent the poor. Legal advocates claim that the most glaring gaps in criminal defense are found in rural areas.
“Until a few years ago, the only counties that actually had a public defenders office were Maricopa and Pima,” said Andrew Silverman, a professor at the University of Arizona James E. Rogers College of Law. “It wasn’t until recently when actual offices were set up in rural areas for the purpose of defending the poor.”
In Arizona, public defense is funded and organized by each of the state’s 15 counties. Their budgets are almost entirely based on local property taxes. As a result areas like Navajo or Apache County, which have median home values of $104,00 and $83,000 respectively, have much less revenue to work with than a public defender’s office in Pima County, where home values are over $160,000.
According to legal experts, this locally based funding formula leaves disturbing gaps for legal service in rural parts of the state.
One way to understand how different funding streams result in different outcomes by county is to look at incarceration rates. Counties with lower property values, and lower budgets for public defense, tend to have more citizens in jail. Pima County, for instance, performs better than many other rural counties in Arizona, which is in line with its relatively high property values. The budget for its main public defender office is over $12 million. According to the Vera Institute of Justice, 246 people per 100,000 between the ages of 15 and 64 are behind bars in Pima County. Navajo County, on the other hand, has an incarceration rate of 339 people per 100,000. Its public defender office’s budget: less than $600,000.
Fast Track Justice
But even in a relatively well-funded area such as Pima County, finding qualified legal defense to navigate a complex legal system can be very difficult. In addition to serving a prison sentence, convicted felons must get approval from a judge to get their civil rights restored. These include the right to serve on a jury, run for public office, own a firearm and vote.
One of these felony defendants was Jeff Salcido, 30, who, after serving for over a year in jail, faced a $1,500 fee from the Pima County Superior Court to get his rights restored.
“I had no idea how I would get the money to afford that,” said Salcido, who supports his fiancee, Erin, and two children as a landscaper. “I was ready to just give up.”
When he was first arrested and charged with dealing drugs in 2012, Salcido said it was impossible to get legal counsel that could serve his particular needs. Rather than being set on the path to societal reintegration, he said was told to accept a plea deal and patiently wait in prison. By 2013, he had a felony on his record.
“If you have a felony in Arizona, you can’t vote,” said Salcido. “It becomes way harder to get a loan for a house or college, to move to a nicer neighborhood and to avoid slipping back into criminal behavior.”
Salcido’s resort to a plea deal is emblematic of the struggles that hundreds of thousands of poor Arizona citizens experience every day. Local justice systems, such as the Pima County Superior Court, process thousands of cases every year. According to a 2011 study by the ABA, caseloads for public defenders can become so onerous that attorneys struggle to perform “core functions,” such as research into a client’s financial status or history with the justice system. Many cases get placed on a fast track toward a plea deal that can include large fines or prison sentences.
Data from the Arizona Supreme Court shows that only 1,979 out of more than 370,000 criminal cases filed throughout the state in 2016 went to jury trials. As a result, thousands of Arizona citizens like Salcido are represented by attorneys that recommend a plea deal in lieu of taking more time to argue for a lighter sentence or waiting for a trial that can take months.
Last year, Salcido met a public defender at a free legal clinic being held in South Tucson. Joel Feinman, head of the Pima County Public Defender’s Office, frequently does pro bono work throughout Tucson for poor defendants. With his help, Salcido was able to get the $1,500 fine for his rights reduced to zero at no cost.
“This has opened up so many more opportunities,” said Salcido, who has started his own landscaping business and plans to move from his neighborhood in South Tucson. “I’d still be in the shadows if it weren’t for Joel.
Urban Areas Stand Better Equipped to Represent Those in Need
“Demand for legal services will always outstrip supply,” said Feinman. He helps run one of the largest county defender’s offices in the state, representing thousands of felony cases in Southern Arizona. He oversees over 160 employees, 70 of whom are lawyers.
“On any given day, we average about 35 to 40 felonies for each attorney,” said Feinman. “It can get up to 1,900 every month.”
Getting new staff members is a struggle for public defenders offices throughout the nation. For a newly minted lawyer, a job defending poor clients that that has a median starting salary of $47,000 can be much less attractive than a position at a private firm, where median starting salaries are $95,000 according to the National Association for Law Placement.
But Pima County is comparatively well equipped to fight the brain drain of lawyers from the public sector, offering a starting salary of $58,000 for its attorneys.
According to experts, having a larger staff is crucial to effectively representing a population of poor clients. This is because the legal needs of the impoverished, which make up over 18 percent of citizens in Pima County, are extremely diverse. They range from simple charges of non-violent drug possession to much more complicated, evidence-heavy cases involving assault, attempted murder and burglary.
“Because of such a mixed caseload, it can be easy for attorneys to be distracted from more heavy duty cases by a huge volume of simpler cases that eat up their time,” said Howard Wine, an attorney who’s worked at the public defender’s office for over 17 years.
Starting in 2008, Wine helped implement a division of labor between more time-consuming cases that tend to go to trial and lighter cases that ended in plea deals. The office now has an intake team that works exclusively for defendants who have admitted to committing lighter crimes, like illegal drug use and possession, to lighten their sentences and keep them informed about court fees. Another group of attorneys focuses exclusively on more complex cases that can take weeks to resolve.
In Navajo County, by contrast, Penrod and his legal team of five attorneys each work on the same mixture of complex and simple cases.
“We work a pretty massive criminal docket,” he said. “Everything from a murder or assault case to someone possessing a small amount of drugs.”
When a legal team like Penrod’s comes under strain, the incentive to push for quick plea deals rather than a lengthy trial process can become stronger. This is called a “meet-and-plead” approach, which, according to a study by the Texas Indigent Defense Commission, is a common fallback for overstaffed public defender offices. Rather than taking the time to interview witnesses, contest charges and negotiate a time for trial, attorneys with higher caseloads tend to only have the time for a brief discussion with a judge about a plea deal. When attorneys like Penrod have nearly 100 cases to handle each month, it’s nearly impossible to fulfill basic functions like interviewing witnesses and researching financial history.
“Effective research and service for each defendant can take hours, and when you have nearly 100 defendants of all these different case types, that adds up quickly,” said Jared Keenan, an attorney for the Arizona branch of the ACLU.
For Penrod, he experiences a common feeling among public defenders called compassion fatigue. Maintaining a good rapport with impoverished clients — many who have criminal charges, few family connections and little prospects for future success — can make it a psychologically draining profession, especially with a low salary in an isolated county.
Penrod is not alone. Excessive workloads for public defense attorneys are a in every state in the U.S. Bruce Green, a Council member at the ABA and law professor at Fordham University, has called “the perennial financial crisis in indigent defense services” a nationwide phenomenon that has shown few signs of improving.
Penrod, in the face of financial obstacles and staffing shortages, doesn’t plan on leaving his profession anytime soon. While he says that public defenders don’t receive the respect they’re due as agents for constitutional rights of the poor, he takes pride in his career.
“I used to work in private practice,” said Penrod, who switched to being a public defender five years ago. “But I don’t for a second regret the change I made. People need this service, whether it can be effectively funded or not. It’s not pretty work, but someone’s got to do it.”
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