Public defenders are poised to go on strike as early as Tuesday across Minnesota, where unionized attorneys say they've been pushed to the brink by routinely high caseloads that have become unmanageable amid the coronavirus pandemic.
Cara Gilbert said she feels a deep responsibility to the clients she represents in juvenile court in Ramsey County, who are mostly “the most vulnerable young children of color.” But she said the workloads have become intolerable for her and her fellow public defenders, who voted by an 80% margin to authorize a strike. And their pay lags far behind what the prosecutors across the table from them make.
“I've been a public defender for seven years. I make less than a first-year attorney at the county attorney's office," Gilbert said. Public defenders don't expect to reach parity with prosecutors in the next contract, she added, but they do want progress.
A strike by the 470 public defenders and 200 support staff could bring much of Minnesota’s state court system to a standstill if it persists. Though Minnesota is the only state where public defenders are on the brink of a walkout, legal system observers say the same pressures are being felt across the country – and it’s the poorest defendants who get hurt, mostly people of color.
Minnesota actually has one of the country’s best public defense systems, particularly when it comes to collecting data to track workloads, said Stephen Hanlon, a St. Louis, Missouri, attorney regarded as one of the country’s leading experts on public defenders. He said that could make it better positioned than most to make real improvements, but all states have been struggling unsuccessfully for decades to adequately fund them.
“The whole system, we know, is systemically unethical and systemically unconstitutional, and everybody knows it. ... And it's causing a lot of harm to people who are Black and brown," Hanlon said. "This is not equal justice under the law. It's unequal justice under the law, and it has to stop.”
Negotiators for the attorneys and the Minnesota Board of Public Defense are scheduled to sit down with a state mediator starting Friday in hopes of averting a strike. By coincidence, Friday is the 59th anniversary of the U.S. Supreme Court's landmark “Gideon” decision, which held that states are constitutionally required to provide attorneys for criminal defendants who can't afford them.
Large-scale public defender strikes are almost unprecedented. Attorneys held a one-day walkout in Ventura County of California in 1995, but in many states they're not unionized. In many jurisdictions, most are private practice attorneys who defend indigent clients part time.
Hanlon said the only major action he knew of that would be comparable to the threatened Minnesota strike was in Massachusetts, where private attorneys rebelled against the low pay they received for handling the bulk of the state's public defense work. A 2004 class-action lawsuit ultimately led the legislature and then-Gov. Mitt Romney to raise their funding by more than 50%.
It's not clear how Minnesota's courts would function in the event of a strike. The Minnesota Judicial Branch hasn't released a plan and has declined comment except for a short statement that said, in part, “We hope the union and Minnesota Board of Public Defense can reach an agreement during the cooling-off period and avoid a strike.”
State Public Defender Bill Ward, who runs the board, said he didn't think it prudent to comment while negotiations are underway.
Gus Froemke, a spokesman for Teamsters Local 320, which represents the attorneys and support staff, said they presume the courts will follow similar procedures as when they shut down for COVID-19 for all but the most essential business. That led to a huge backlog that the courts are still trying to clear. The board has indicated it would continue to operate with supervisory attorneys, but it's not clear how well that would work in practice.
“We represent over 80% of the individuals in the criminal justice system," Gilbert said. "And so the question becomes how much of that management can shoulder and for how long. That's it. That's our pressure point.”
The Minnesota Board of Public Defense acknowledged to legislators in January that its attorney staffing is just 75% of what the American Bar Association standards recommend, and it's just 60% for support staff. The board had a budget of about $101 million for the last fiscal year. While funding has increased over the years, officials and the union agree that caseloads remain too high.
In response, the House Judiciary Committee chair, Democratic Rep. Jamie Becker-Finn, of Roseville, introduced a bill to boost the board's funding by the $50 million the board said it needed to meet national standards. She said she plans to give it a hearing soon, and said she's hopeful that Republicans who control the state Senate will ultimately agree to fund at least part of that from the state's $9.25 billion budget surplus. She said it shouldn't be a partisan issue, given that the state is constitutionally required to fund public defenders.
“We haven't been doing right by our citizens and this really needs to happen,” Becker-Finn said.
Hanlon said the national caseload standards, which date from 1973, are woefully inadequate, and faulted the legal profession for tolerating the system for so long. But he said that could change. He's part of a group of experts from several organizations who will meet next month to study data from workload studies that have been done in 17 states and will issue their final report in August. Those studies include seven that Hanlon led for the ABA, including reports released in January that documented severe overloads in Oregon and New Mexico.
And he said they plan to present their findings at a U.S. House Judiciary subcommittee hearing this summer on legislation originally championed by Vice President Kamala Harris when she was a senator to provide more funding for public defense.
“I'm very optimistic,” Hanlon said. “I think we're on the verge of a real breakthrough here.”