Prof. Stephen F. Hanlon Leads National Effort to Reform Indigent Defense
As general counsel to the National Association for Public Defense (NAPD), law professor Stephen F. Hanlon, J.D., is taking on a monumental challenge: to put an end to 50 years of what he claims is a broken criminal justice system as it relates to indigent defense.
Hanlon joined the SLU LAW faculty as a professor of practice in spring 2014 after retiring as a partner at Holland & Knight, where he ran the largest full-time private practice pro bono department in the country for 23 years.
SLU LAW professors of practice have retired from practice and have significant expertise in their respective fields to offer students.
While on campus, Hanlon worked closely with the Legal Clinics’ students and faculty, who helped him with research for state Supreme Court cases. He taught a course dubbed “Hanlon & Associates,” which he operated like a small law firm. “We prepared a motion [for public defenders] to refuse additional cases – I still use that document that our students generated in my practice now.”
Along with clinic faculty, he also met with St. Louis municipal court judges to instigate court reform (notably before the death of Michael Brown and the ensuing attention on municipal court practices in the region).
Today, Hanlon is back in Washington, D.C., with most of his time taken up by his role at the NAPD, but he continues to advise and mentor SLU LAW students, who benefit from his years of litigation experience. Having “had the great fortune to work with many of America’s greatest civil rights lawyers,” he also seeks to bring prestigious speakers from around the country to the law school, bolstering its reputation on a national level. Recently, he has been responsible for bringing renowned scholars Norman Lefstein, Stephen B. Bright, Jonathan Rapping and Jim Sandman to Scott Hall for engaging keynote lectures open to the St. Louis legal community.
The Saint Louis Brief caught up with Hanlon to discuss his work at the NAPD, where he continues to focus on the issue of public defenders’ excessive workloads, the no. 1 problem in indigent defense.
Founded in 2013, the NAPD already has more than 15,000 public defender members from across the country, and according to Hanlon, they are “mad as hell.”
“It’s a truism,” Hanlon says. “It’s generally known and accepted that public defenders have way too many cases. What we’ve come to realize is that we are operating a systemically unethical and unconstitutional criminal justice system – and everybody knows that. The judges know it. The state bar associations know it. The prosecutors know it. And this is a horrible legacy for my generation of lawyers. It’s a horrible indictment of our profession. And our goal has been and continues to be to stop it.”
We are operating a systemically unethical and unconstitutional criminal justice system – and everybody knows that."Stephen F. Hanlon, J.D.
Hanlon was featured in a recent “60 Minutes” segment with Anderson Cooper, who asked a group of nine current and former New Orleans public defenders whether any of them believed their lack of time to devote to a case had landed an innocent client in jail. Every lawyer raised their hands.
“If obstetricians had five times as much work as they could handle competently, if airline pilots had five times as much work as they could handle competently, terrible things would happen,” Hanlon says. “Public defenders have people’s lives in their hands, they have people’s liberty in their hands, they have their whole future in their hands.”
Hanlon is a self-described systems lawyer; throughout most of his 50-year career he has done systemic litigation: prison systems, school systems, public housing systems, etc. In the early 1990s, he was introduced to the systemic problems involved in indigent defense and began working on finding a powerful way to change the system.
In 2012, in a case that has been called a “watershed moment,” Hanlon was lead counsel for the Missouri Public Defender in State ex rel. Mo. Public Defender Commission, 370 S.W.3d 592 (Mo.banc 2012). This was the first state Supreme Court case in the country to expressly uphold the right of a public defender organization to refuse additional cases when confronted with excessive caseloads.
“When a public defender has too many cases and can prove that, a judge may not order them to represent more people because that would be ordering a public defender to do something that is both unethical and unconstitutional,” Hanlon says. “It’s shocking that this would be a novel proposition in 2012.” This case essentially said that judges can now “triage” instead of lawyers, evaluating public defender resources and assigning them to the worst felonies. Then, if another competent lawyer cannot be found to take less serious cases, those cases must be dismissed and the defendants released.
“The question is – now that we know a judge may not order you to do that – where do you draw the line? That’s what I set out to do and what I have done for the last five years,” Hanlon says.
Hanlon began a process to establish new, data-driven standards that could assist the Missouri State Public Defender System (MSPD) in determining maximum workloads.
He received a grant from the American Bar Association (ABA) to find the right kind of entity to do the work and determined that accounting firms, with their experience in econometrics, would be the most reliable investigators. He partnered with RubinBrown, and in 2014, under his guidance as project director, the ABA published “The Missouri Project,” a landmark analysis of the MSPD and attorney workload standards, along with a national blueprint for future studies. The exhaustive report has been highlighted in the New York Times and has been described by experts as the most credible of its kind. It found that for serious felonies, defenders in Missouri spent an average of only nine hours on their cases, compared with the 47 hours needed. For misdemeanors, they spent only two hours, while 12 were called for.
Hanlon now serves as project director for similar studies in several other states.
“All of my work on this has been pro bono except for Louisiana’s, but I’m having the time of my life, and I’m representing heroes,” he says. “These people are heroes. They’re trying murder cases during the day and talking to me at night.”
The ultimate goal is to replace the 1973 National Advisory Commission (NAC) Standards, which are not based upon empirical study. Hanlon says state bar associations have abandoned their responsibilities to enforce Rule 1.7 of the Rules of Professional Conduct, which prohibits a concurrent conflict. He also aims to articulate a clear constitutional theory behind the movement for reform. With this three-pronged approach to tackling excessive workloads, Hanlon is more optimistic than he has been in 30 years.
“I think Missouri is leading the nation,” he says. “We have a two-thirds Republican legislature that gets reliable data and analytics [and has supported increased MSPD funding]. And we have [director of MSPD] Michael Barrett and great public defenders. We are not at the end of the battle. But sometime in the next five to 10 years – I intend to be around, I’m a mere 75! – we are going to take the ball into the end zone.
“Frankly I don’t care who’s on the Supreme Court; I think we’ll win on the Supreme Court. This is a lawyers’ issue, and the lawyers on the Court will get this.”
Besides federal recognition of the problem, what are long-term solutions to the public defender crisis?
“One is the supply side – give us more lawyers. Adequate funding for the public defenders is essential,” Hanlon says. “On the demand side, misdemeanor cases are clogging up the system and causing horrific collateral consequences – inability to get a job, education, housing, military. We need to get out of the criminalization of poverty, of homelessness, of mental illness, of drug addiction. These people do not need to be placed in cages or fined and feed to eternal poverty; they need social workers. The only reason they need lawyers is because we attach jail to it. Cages are not the answer.”
This fall, Professor Hanlon is bringing an NAPD Workloads Conference to campus titled “Something’s Happenin Here,” on Nov. 17-18.
-- By Maria Tsikalas
This article originally appeared in the Saint Louis Brief (v18i2), SLU LAW's alumni magazine. Hear from Prof. Hanlon about ongoing public defender workload initiatives on Wednesday, Nov. 15.