Supreme Court must stanch public defender meltdown
A new study of Missouri’s public defender system — which provides lawyers for indigent defendants in criminal cases — says the system’s lawyers are so underpaid, overworked and badly supervised that they’re like the pilots of the commuter plane that crashed into a Buffalo, N.Y., suburb in February.
As a result, says the Spangenberg Group, a judicial consulting firm, and George Mason University’s Center for Justice, Law and Society, Missouri’s criminal justice system “is heading for disaster, one which is both predictable and preventable.”
Missouri’s public defender system “stands at the bottom of its sister states in terms of resources,” the report concludes, and “has reached a point where what it provides is often nothing more than the illusion of a lawyer.”
None of this is news, at least not to anyone familiar with the state’s criminal justice system. The Missouri Bar commissioned a similar study four years ago, and it reached similar conclusions.
Since then, a special committee of the Missouri Senate has recommended that public defenders’ case loads be reduced, that staff support for the system be increased and that more lawyers be hired. No money was appropriated for any of this.
So the Public Defender Commission sought the authority to limit the number of cases its lawyers are required to handle. Lawmakers were sympathetic to the approach and, earlier this year, enacted legislation that would have granted this authority.
Gov. Jay Nixon vetoed the bill. He acknowledged that the public defender system “is operating under significant stresses” and said he was committed to working with the Legislature “to identify additional resources.”
That hasn’t worked out very well. Missouri public defenders were set to receive $2 million in federal stimulus funds. Mr. Nixon’s budget office cut that to $500,000 earlier this month.
Times are tough. Many deserving divisions of government have experienced cuts. But even when times were good, Missouri failed to provide basic funding for public defenders. Now it faces a crisis of constitutional dimension: Missouri may be violating Sixth Amendment guarantees that indigent defendants have the right to counsel and the right to a speedy trial.
As we noted in July, if Missouri’s public defenders “are pushed to handle case loads so large that they can’t provide clients with adequate representation, they must turn down cases…. They have no alternative.”
That time is at hand.
Mr. Nixon has expressed sympathy for crime victims who must wait for justice if public defenders’ case loads are capped. His concern is understandable. But responsibility for any such delays belong to the governor and the Legislature. It’s their duty to fund the criminal justice system adequately.
On Nov. 3, the Missouri Supreme Court will be asked to decide whether the Missouri Public Defender Commission has the authority to set case load limits under existing law, even without the kind of legislation Mr. Nixon vetoed.
The Supreme Court is the final authority on Missouri lawyers’ professional responsibility. Thus, if the commission is found to lack the power to manage case loads adequately, the court could step in and set its own rule.
The court should do so — upholding basic due process by ensuring that public defenders don’t have so many cases that they can’t fulfill their professional responsibilities. Inevitably, that will result in a court challenge of Missouri’s failure to fulfill its own responsibilities. That may be what it takes.
Missouri ranks last in the nation for per capita funding for public defenders. There are public defenders who have 200 active caseloads. Some defendants could end up waiting too long for trial until a public defender is available. A recent court case held that defendants can be released if their trial is delayed because of an underfunded public defender system. This is a matter of public safety. When a released defendant commits a serious crime…maybe the state, including the governor, will be politically ready to take notice.
I recently evicted a tenant who owed $1,500 in rent, another $2,000 in unpaid late fees, and left several thousand dollars in damage to the house. An attorney, one Robert Officer, represented them pro bono. As a result, these deadbeats got an extra week in my house, by falsely claiming they only owed $350, then dropping that claim at trial. So here’s an idea: Instead of volunteering to help deadbeats game the system, perhaps these well meaning, public minded attorneys could volunteer for the public defender’s office.
The report you cite calls for increased funding, saying that “bravery will not buy groceries for an attorney’s family.” That is certainly true, and nobody is saying that that children of attorneys ought to suffer from hunger. But rather than placing another burden on the threadbare public purse, we should look to healthcare reform for strategy. At the moment, awards and settlements are tax free. So let’s start by imposing a tax on all awards and settlements.
Perhaps more important, since attorneys earn a living through the use of the courts, let’s place a special income tax on attorneys. They’ll say it’s unfair, but I say it’s like the road use fees paid by large trucks.
Finally, we need to impose taxes and user fees on the folks who make all those public defenders necessary in the first place - the criminals. A common economic truism is, “If you want less of something, then tax it.” Yet in our society, we tax people for working, driving, dressing, and eating - yet shooters and muggers work tax-free. Let’s impose some serious taxes on crime, and if the criminals don’t pay, get the Department of Revenue after them. That may be enough of a deterrent that we don’t need more public defenders after all.
The fact that money corrupts government is a human problem. People in government blame money for their corrupt acts. The government has no right to inflict harsher punishments on the poor than the rich. Yet law schools are very expensive and limited in number of applicants. The legal community is not a respectable group of people they further corruption at every turn. Just because alcohol is legal does not mean it is not supposed to be controlled. Instead of controlling substances the legal system protects substances and inflicts harm on users. I.E. alcoholics, drug users, smokers, firearms owners, and the like. The government is supposed to control these substances but it does not at all. It hides behind personal liability for a disease inflicted by government action. The government is not being personally liable for its actions and when confronted threatens its victims. Most people just do not stand up to these tyrants.
Nick:
Right on!
User fees for those that use the court system - the attorneys.
There could be a waiver of a portion of the fees for the attorneys that did pro bono work for the Public defender’s office - similar to the forgiveness of student loans for teachers in the inner city public schools.
Imagine that…Nick Kasoff finding new ways to increase our taxes.
Don’t forget about the tea [party] protests when you’re finished finding ways to increase government revenues.
Unfortunately, the Missouri Public Defender is not making any attempt to reduce their Due Process costs. Even though their motto is “Excellence through Technology” other Public Defender Offices (such as Florida and Indiana) are adopting new and cutting-edge technologies to reduce their costs. For example, one-third of all Florida State Attorney and Public Defender Circuits use a new process for conducting depositions that has saved the State of Florida millions of dollars per year. The Missouri Public Defender is still doing depositions the same way they did in the 18th century. Maybe the MSPD is so far underwater, that they don’t care anymore about swimming towards the light.
…”indigent defendants have the right to counsel and the right to a speedy trial.”
And you feel struggling taxpayers have the obligation to pay public defenders to get habitual criminals with 15 page rap sheets off with a slap on the wrist and a new arrest next week.
Only a tiny fraction of these “indigent” defendants are first offenders. They are not victims of the system. They are predators on society who take advantage of the costs of incarceration and the weakness of public will to continue their flagrant criminal careers. Releasing them to prey on the public over and over actually sentences their next victim to cruel and unusual punishment.
Add a thousand prison beds and forbid any plea bargaining after the third felony offense and watch the public defender caseload drop dramatically.