Editorial: Criminal code revision should relieve stress on public defenders

2013-03-26T06:00:00Z Editorial: Criminal code revision should relieve stress on public defendersBy the Editorial Board stltoday.com

Today and Wednesday in Jefferson City, the Missouri Senate and House will hold separate hearings on similar bills, both of which have bipartisan support. Each would overhaul the state’s criminal code for the first time in 35 years.

That’s important. As a committee of the Missouri Bar commented, “Over the past 30 years, statutes have been amended, added or deleted, both inside and outside the Code relating to crime and punishment. Very little concern has been given to maintaining the organization, harmony and consistent statutory scheme that is the essence of a code.”

There’s also this: Judges need more discretion and sentencing options. Missouri’s prisons are crowded with people who don’t need to be there, each one costing state taxpayers at least $22,350 a year. So good for Rep. Stanley Cox, R-Sedalia, and Sen. Jolie Justus, D-Kansas City; two more politically divergent lawmakers could scarcely be found, but they are sponsoring similar bills to overhaul the code.

Here’s something the legislature’s Judiciary committees could do to improve the bills, save some money and — oh, by the way — keep the state from denying hundreds of people each year their constitutional right to effective counsel: Maximize the number of minor offenses — possession of small amounts of marijuana, for instance — that don’t include the threat of jail.

If loss of liberty is not a threat, then defendants don’t have to have a lawyer appointed to defend them. If the Missouri Public Defender System, which represents 80 percent of all indigent defendants in the state, didn’t have to respond to a host of minor violations, it could focus more of its efforts on more serious crimes.

Both House Bill 210 and Senate Bill 253 would create a new D-class misdemeanor. Fines and community service would be more appropriate sentences.

The Missouri Public Defender System, like those in other states, has been under tremendous stress for the last decade. “Tough on crime” laws and shrinking budgets have ripped big holes in the constitutional right to effective counsel.

As it happens, former New York Times columnist Anthony Lewis died Monday. His 1964 book “Gideon’s Trumpet” chronicled the case of Clarence Earl Gideon of Hannibal, Mo., a drifter who insisted that he should have had a lawyer appointed to defend him on a petty larceny charge in Florida in 1961. His hand-written argument made its way to the Supreme Court, which in 1963 extended the Sixth Amendment right to counsel to state courts.

Ever since, police officers have had to inform people they arrested that they have the right to a free lawyer if they couldn’t afford their own. And ever since then, states have been struggling with how to provide effective counsel.

Missouri set up its Public Defender System in 1972. It worked more or less adequately for 30 years, but then its lawyers began to find they couldn’t adequately represent all the defendants they were assigned — even with 376 lawyers, 210 support staff and an annual budget of $36 million.

In 2005, the Missouri Bar commissioned a study that found that the state Public Defender System was “struggling to survive’” and that high caseloads force its lawyers to violate ethical and constitutional requirements.

The Missouri Association of Prosecuting Attorneys, made up of 115 people who get elected by being tough on crime, scoffed at the report. But the Legislature, the governor and the Missouri Supreme Court all took it seriously. In 2009, U.S. Attorney General Eric Holder singled out Missouri’s Public Defender System as one of the most troubled in the nation.

In 2010, the Public Defender System began issuing notices in many of the state’s judicial circuits that it would only accept new cases on a month-by-month basis as caseloads opened up. Currently nearly all of Missouri’s judicial circuits are on a “limited availability” status or close to it.

“We have had a few jurisdictions (St Louis city and Jefferson County among them) where the courts have continued to make strides in giving their local office caseload relief,” said Cat Kelley, director of the Public Defender System. “In St Louis, they are diverting a majority of misdemeanors away from the public defender. In Jefferson County, they are appointing private counsel to misdemeanors.”

Elsewhere, Missouri Auditor Tom Schweich has questioned how the Public Defender System figures its caseload hours. Ms. Kelly noted that Mr. Schweich has not denied that there is an overload, only “where to draw the line.” She said, “Our hope is if we can get an agreed-upon method for determining what is a reasonable caseload for public defenders, we can put that argument behind us and all get back to working on solutions to the real problem of what to do with too many cases and too few defenders.”

The nice thing here is that the state doesn’t necessarily need to spend more money — which it doesn’t have, anyway. It can reduce caseloads, reduce the corrections budget and serve the interest of justice by rethinking what kinds of crime deserve jail time.

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