How the Pandemic Altered the Criminal Defense Landscape
Jessica A. Harrison
Our post-COVID-19 world is undoubtedly a different world than the one we were accustomed to before 2020. We can self-administer nasal swabs just as naturally as we brush our teeth, our plant collections are robust and thriving, and our favorite restaurants now feature impressive patio dining year-round. But on a much larger scale, the post-COVID world witnessed a significant disruption to the American workforce – especially within the government. The criminal justice system has particularly borne the brunt of the labor shortage.
Labor Shortages in Government
For instance, the Idaho Department of Corrections (“IDOC”) has faced a severe employee shortage since COVID-19.[i] Governor Brad Little even activated 75 members of the Idaho National Guard to assist in IDOC’s operations.[ii] But for a more long-term solution, and in response to this staffing shortage, IDOC increased its hourly rate and began offering sign-on bonuses and retention bonuses every five years.[iii] However, as of Fall 2022, IDOC was still struggling with a 25% staffing shortage.[iv]
The IDOC staffing shortage not only leads to longer workdays for employees, which leads to burnout, but also fewer opportunities for inmates to participate in programming and ultimately parole out of prison.[v] Consequently, some inmates may face longer prison terms.
This is hardly the only way the criminal justice system has been impacted by pandemic labor shortages. Across the nation, public defender offices have struggled with retention and hiring new attorneys.[vi] While public defense generally has a history of high turnover due to low pay and high caseloads, the pandemic only worsened these circumstances. Many former public defenders chose new and different career paths that allowed them to work from home.
Courts across Idaho temporarily held hearings remotely during the pandemic, but when most hearings returned to in-person, attorneys could no longer choose to appear in court from home. And while many civil practitioners can easily meet with clients via Webex or Zoom, the out-of-custody clients of public defenders typically lack access to these software programs, and often do not even own cell phones. Simply put, it is not practicable for public defenders to work from home full-time. And when the pandemic introduced the concept of working from home to attorneys across the nation, many saw this as a significant benefit and incentive to switch jobs.
Criminal Defendants are Especially Impacted
Nobody suffers from a public defense staffing shortage more than criminal defendants. It is well-settled that every criminal defendant has a Sixth Amendment right to competent counsel, even if that defendant cannot afford his/her own attorney.[vii] When many public defenders transition to different jobs, and public defender offices struggle to replace and fill vacancies, criminal defendants often are assigned different public defenders who step in to work the case. And when a public defender is new to the case, the case is often continued (i.e., pushed out) for the new public defender to meet with the defendant, form an attorney-client relationship, and familiarize themselves with the case. This can lead to significant delays in the case, which further exacerbates the delays caused by the pandemic backlog of cases.
These delays are especially concerning for incarcerated defendants. And when an incarcerated defendant’s case is continuously pushed out to no fault of his/her own because multiple public defenders are assigned over the pendency of the case, the higher the risk something falls through the cracks. In fact, in Oregon, civil rights advocates sued the State when Oregon’s largest county had 274 unrepresented defendants due to a public defender shortage.[viii] When criminal defendants are not represented or are assigned multiple different public defenders, they lose faith in the public defense system that already suffers from stigmatization. A common question often posed to public defenders is whether they are even “real lawyers.” The reality is that the vast majority of public defenders love their jobs, work hard, and do the work because they care. But they can only work as hard as resources allow.
The Need for Retention
Thankfully, Idaho is not facing such severe staffing shortages as Oregon. But public defender offices across the state need to be proactive in hiring capable attorneys and retaining talent in an effort to avoid the crisis Oregon is facing. While it may not be feasible to allow all public defenders to work from home full-time, perhaps understaffed public defender offices can allow for one or two workdays a week from home. Ada County Human Resources, in an attempt to incentivize recruitment due to a high number of current vacancies, introduced an Employee Referral and Recruitment Incentive Program.[ix] The program offers current employees (including public defenders, prosecutors, and staff attorneys) a $1,000 referral bonus (which is not insignificant for government employees). And while public defender offices rely on the Board of County Commission for budget expansions, higher salaries lead to increased hiring and retention, which lead to a more smooth-sailing and effective criminal justice system.
At the end of the day, while all corners of the criminal justice system are still facing consequences from the pandemic, it is the criminal defendants who enjoy Constitutional safeguards – specifically a fair and speedy trial with competent counsel – and thus who are most at risk when the system takes a hit. Turnover will always be a reality in public defender offices across the nation. But since the pandemic, it has grown increasingly crucial to better retain and hire public defenders who advocate for the Constitutional rights of a marginalized community. Ultimately, if criminal defendants feel truly advocated for and adequately represented, perhaps fewer public defenders will feel the need to seek employment elsewhere. If we can accomplish this, public defender offices can grow into more career-oriented offices rather than training grounds for trial experience.
Jessica A. Harrison has been a public defender with Ada County since 2018. The ideas reflected in the article are hers alone and are not attributable to the Ada County Public Defender’s Office.
[i] Alex Brizee, Idaho governor activates National Guard as IDOC reaches worst staffing shortage of pandemic, The Idaho Statesman (January 5, 2023),https://www.corrections1.com/coronavirus-covid-19/articles/idaho-governor-activates-national-guard-as-idoc-reaches-worst-staffing-shortage-of-pandemic-yTy4uatTPAjDmq72/.
[iv] Morgan Romero, Coping with a Cop Shortage: Idaho Department of Correction seeing residual burn out after pandemic,KTVB7 (January 5, 2023), https://www.ktvb.com/article/news/investigations/7-investigates/idaho-department-of-correction-seeing-burn-out-after-pandemic/277-4cf1034b-79fe-4b9e-9fa1-4f299b4e4e7d.
[v] Ryan Supee, After pay boost, Department of Correction sees application spike,Idaho Press (January 5, 2023), https://www.ktvb.com/article/news/local/idaho/after-pay-boost-department-of-corrections-sees-applicant-spike-prison-idaho/277-2156094b-4938-4d70-b056-4eec82b32433.
[vi] Erika Bolstad, Public Defenders Were Scarce Before COVID. It’s Much Worse Now., Stateline (January 5, 2023),https://www.pewtrusts.org/en/research-and-analysis/blogs/stateline/2022/06/21/public-defenders-were-scarce-before-covid-its-much-worse-now.
[vii] Gideon v. Wainwright, 372 U.S. 335 (1963).
[viii] Supra note 6.