On the brink of ‘crisis’: Arizona’s public defense system hit hard with staffing shortages

An attorney shortage, a pandemic-driven case backlog and an influx of low-level drug charges are pushing Pima County’s public defense system in southern Arizona to the limit. The county soon won’t have enough public defenders to handle the cases being filed, experts say.

States across the West face dire shortages of public defenders. Lacking data masks the statewide problem’s extent, but the plague has hit Arizona. Pima County and poor, rural counties are stretched thin.

Pima County’s public defense system has more jobs open than it can fill, said public defender Megan Page. Attorneys and social workers are much harder to come by than easier-filled support staff, like paralegals.

Pima County Public Defense Services director Dean Brault said the public defender, legal defender and legal advocates’ offices he oversees all have job openings, but not enough qualified people apply. To improve retention, the county now compensates mileage for contract attorneys who commute.

County offices are losing full-time public defenders who can get paid more as contract attorneys, Brault said.

“We’ve been struggling to pay our people in-house what they’re worth,” Brault said. “We’ve seen some increases recently which have been helpful, but someone resigned the other day to go work for a firm that takes felony (contract) cases in superior court.”

County systems must prevent public defenders from becoming overwhelmed, Page said. She tries to limit caseloads in the public defender’s office to between 35 and 40 active cases per attorney at any given time.

“Once it gets into the 50s, we become concerned that they’re so overwhelmed, they can’t represent their clients they way they’d want to,” Page said.

Pima County almost ran out of public defenders in 2019, but then the pandemic hit. The county attorney’s office stopped charging low-level drug crimes and the police department tried to keep the jail population low as COVID-19 spread.

Cases stopped pouring in and court slowed, but now courts face mounting backlogs and ramped up low-level drug crime prosecution. The public defender shortage again is a problem.

“We’re hitting a crisis point,” Page said. “My concern is that if we continue to pursue low-level felony cases, we won’t be able to have an attorney for everyone.”

Workloads increasing

Drug charges fill most caseloads, which frustrates Page, who says substance use disorder is a public health issue.

Brault said many drug cases shouldn’t be prosecuted, and plenty of felonies should be misdemeanors.

A fine line often separates a felony and misdemeanor, Page said. If a person shoplifts in an area where customers are allowed, the charge is a misdemeanor. If that person reaches over the counter or steps into an employee-only area, the charge becomes a felony, she said.

“A $7 pack of cigarettes or a lottery ticket becomes a felony case that has to be handled in superior court,” she said.

Brault said his offices are almost maxed out on cases.

“At some point, we will have to go attorney to attorney and ask if they can take another case and provide effective representation,” he said. “When the answer to that from everyone is ‘no,’ we’re going to be at a crisis where we have to go to the court and say we can’t ethically take any more cases.”

Brault said he notified the county attorney’s office leadership that his offices are reaching that point, but they said they’re charging crimes appropriately and won’t change.

Pima County Attorney Laura Conover did not respond to a request for comment.

The county’s Office of Court Appointed Counsel and federal court’s Criminal Justice Act panel are also running out of lawyers. The county office can’t take more superior court cases if federal public defenders don’t have lawyers to spare either, Brault said.

“We’re doing everything that we can,” Brault said. “At some point, it’s going to come down to if we don’t have enough lawyers, the court’s going to have to decide what it’s going to do.”

Rural struggle

Arizona’s 15 counties fund and maintain their own public defense systems without help from the state, a structure that leads to resource disparities, said Arizona ACLU legal director Jared Keenan.

Counties with robust budgets can support multiple public defense offices. All Arizona counties, except Yavapai, have at least a secondary office.

“The downside is that some of the rural counties have a much harder time with funding,” Keenan said. “They also have some issues with retaining attorneys. Some counties, like Mohave and Paige, just don’t pay very well. But Maricopa County is probably one of the most competitive salaries in the country for public defenders.”

La Paz County, which had a population of 16,400 in 2021, almost lost its public defense office. The board of supervisors considered shutting it down but spared the office after discovering contract attorneys cost more, Keenan said.

“Not very many attorneys live in La Paz, and the county would have to pay travel expenses,” Keenan said.

Keenan said a statewide public defense system could increase rural county funding. State funds earmarked for public defense could also help, but the Legislature often reallocates that money to other agencies, including to the Arizona Department of Public Safety.

“It’s not enough money to fix all the problems with rural defense systems, but there is some money there and every year, it’s swept out of the indigent defense fund and given to police,” Keenan said.

Data gaps

Arizona was among the worst of 17 western states from which Lee Enterprises requested public defender data. Arizona was one of three states that either don’t track or could not compile reports on public defender caseloads nor the number of unrepresented people.

The Arizona Supreme Court’s data team was “unable” to provide data on cases that went without representation and was not sure who in the state would have that information, said the court’s communications director Alberto Rodriguez. The Supreme Court oversees administrative operations of all courts throughout the state.

There’s no statewide agency that oversees public defenders’ caseloads. The Supreme Court collects case data, but it’s not broken down by attorney so it doesn't show whether attorneys are overwhelmed. One county, Pima, shared its data collection with Lee Enterprises.

Jon Mosher, Sixth Amendment Center deputy director, said that missing data suggests Arizona is failing its constitutional obligations. The Fourteenth Amendment obliges states to ensure the Sixth Amendment right to effective counsel.

“When a state chooses to delegate its federal constitutional responsibilities to its local governments and courts, the state must guarantee not only that these local bodies are capable of providing effective representation but also that they are in fact doing so,” Mosher said.

Keenan said some misdemeanor defendants don’t get attorneys. A person arrested for a misdemeanor in most counties won’t receive a public defender unless the county attorney’s office says it intends to pursue jail time. Constitutionally, that person still has a right to an attorney because “every misdemeanor has the potential of jail time in Arizona,” Keenan said. The right to counsel exists whenever there’s a possibility of jail.

Brault provided Pima County data showing at least 23 attorneys in 2021 had caseloads above national standards, which suggests attorneys might have had too many cases to provide effective representation. Experts say the outdated standards overestimate the number of cases attorneys can handle. Brault did not have data for other counties.

“There’s just no central data warehouse where we can compare jurisdictions,” Brault said.

The state-run Arizona Criminal Justice Commission is required to share criminal justice information and data among agencies and with the public, but does not yet maintain a public defense system database.

Members include county supervisors and prosecutors, as well as representatives from law enforcement, courts, probation and state agencies. Pima County has four members on the commission: The county attorney, sheriff, chief probation officer and a town police chief.

“(Pima County Public Defense Services) is not a member of that, but they’re trying to get us to provide information,” Brault said. “It’s an interesting push and pull.”

While Brault and others would like to see better tracking, there are no known efforts to create a statewide database.

Mosher said public defense data collection is crucial, otherwise there’s no “purposeful, intelligent analysis” on whether people get representation or whether states have enough lawyers, Mosher said. The only other way to know that is to visit each courtroom. State legislatures lacking analysis don’t know what needs repair.

“We can’t examine those questions intelligently before state Legislatures in each state without just having basic data to go off of,” Mosher said. “It’s a basic governance question. Good government requires good data.”

About Broken Defense: Across the West, public defense systems face crushing caseloads, historic underfunding, structural problems and severe staffing shortages, imperiling criminal defendants’ lives and in many cases denying them their constitutional right to counsel. Defendants have lost jobs and homes, been pressured to plead guilty and been denied the benefit of exonerating evidence. People accused in more than 100,000 misdemeanors each year go to jail without ever talking to a lawyer.

Lee Enterprises’ West region Public Service Journalism team and local reporters attended more than a dozen court hearings and interviewed more than 25 defendants, 40 attorneys and 25 experts to reveal public defense in many western states is broken.

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