In 2016, Michael Barrett was so frustrated with funding for public defenders in Missouri that he made a bold decision.
Barrett, the director of the state public defender’s office, used an obscure state law to assign a case to Gov. Jay Nixon, who had recently cut state appropriations that Barrett’s office desperately needed.
“You have repeatedly cut funding for an indigent defense system that continues to rank 49th in the U.S., with a budget that the consumer price index indicates has less value now than it did in 2009,” Barrett wrote Nixon in assigning him a case in Cole County. “After cutting $3.47 million from public defense in 2015, you now cite fiscal discipline as reason to again restrict MSPD’s budget, this time by 8.5%. …
“This action comes even after the Civil Rights Division of the Department of Justice found that poor black children are being systematically deprived of their rights in Missouri due in large part to the lack of public defenders. Choosing the wake of that report to further debilitate the very organization that ensures an equal system of justice only adds to the escalating sentiment that the poor and disenfranchised do not receive a fair shake in Missouri’s criminal justice system.”
Nixon never took the assignment; a judge ruled Barrett didn’t have the authority to appoint him.
But Barrett made his point.
Now, two years later, with no change in Missouri’s status as one of the worst funded states in the nation for public defenders, a national civil rights organization is shedding light on the problem yet again.
In a report issued on Monday titled “A Fair Fight: Achieving Indigent Defense Resource Parity,” the nonpartisan Brennan Center for Justice calls for states to elevate the issue of proper funding for public defenders, to decrease workloads, and balance pay differences between public defenders and prosecutors.
“Chronic underfunding has led to drastic resource disparities between prosecutors and defenders, undermining the very basis of our criminal legal system,” the report concludes.
Not surprisingly, the report focuses heavily on Missouri, which has for more than a decade been the subject of reports highlighting the civil rights violations inherent in underfunding the public defender system and creating workloads that all but guarantee that indigent defendants will not receive adequate representation as required by the Sixth Amendment to the U.S. Constitution.
Author Bryan Furst writes of the case of Shondel Church, a Kansas City man who was charged with misdemeanor theft and sat in jail for 40 days before he could even meet with his public defender. He eventually spent 125 days in jail — incurring a bill for staying in jail of $2,600 — before pleading guilty just to get out of jail.
In 2017, the American Civil Liberties Union sued the state on behalf of Church and other similar defendants who couldn’t receive an adequate defense because their public defenders were overburdened with too many cases.
In that year, the state’s 370 public defenders handled about 82,000 cases. An American Bar Association report found that Missouri public defenders were spending about nine hours on average per case when 47 hours per case was deemed adequate.
This is the reality all over Missouri, and in many other states, the Brennan Center says, because underfunded public defender systems with unconstitutional workloads tilt the system toward longer jail stays by defendants before they even get their day in court.
That exacerbates poverty, as those defendants lose jobs, cars and housing, and then leave jail with debt they’ll never be able to repay. Worse, they often plead guilty to weak cases just so they can get out of jail.
“All of these indigent defendants are being set up for failure all over the country,” says Lauren-Brooke Eisen, the acting director of the justice program at the Brennan Center. “The under-resourcing has created a culture of case processing.”
That means that too often public defenders simply don’t have time to make sure their clients get an adequate defense, Eisen says, so they settle cases to plea bargains for “time served” and leave defendants with criminal convictions that stay with them forever.
The report calls for that which Barrett has been advocating for years: More resources for public defenders so they can adequately protect the civil rights of indigent defendants, as well as a restructuring of how public defenders’ offices are structured in some states, and more parity in pay between public defenders and prosecutors.
“If I had a nickel for every Constitution-loving lawmaker who claimed support for a fair system of justice and liberty but then voted for wildly disparate resources for constitutionally required lawyers who fight the government to ensure justice and preserve liberty, well, we’d be pretty well-funded,” Barrett says.
Eisen believes the Brennan Center report comes at the right time to help change the national conversation about indigent defense. Other criminal justice reforms have taken effect: The U.S. Supreme Court earlier this year affirmed that the Constitution’s protection from excessive fines applies to states. And many of the candidates seeking the Democratic nomination to run for president in 2020 are focused on criminal justice issues.
It takes a multifaceted approach to re-create America’s judicial system so that it more adequately protects the civil rights of the accused, Eisen says, and rethinking the importance of the public defender system, and elevating it, has to be a part of that conversation.
Editor's note: Bryan Furst is the author of the Brennan Center report. An earlier version of this story contained an incorrect spelling of his name.