JEFFERSON CITY • Next month, when poor people are charged with crimes in one southern Missouri county, a private attorney will represent them — even if they can’t afford it.
That’s because the Missouri State Public Defender has decided to completely privatize Texas County. Starting March 1, if a defendant is deemed indigent, judges there will contract with private lawyers, with the state footing the bill, according to Michael Barrett, director for the public defender office.
For years, the office has been underfunded, and its lawyers have dealt with heavy caseloads. The situation has led the ACLU of Missouri to sue the state. The office already contracts out some of its caseload, Barrett said, but privatizing more public defender duties has gained some favor in the Missouri House.
In more populated areas, “a public defender’s office is necessary,” said Rep. Kathie Conway, R-St. Charles, who said she used to work in the public defender office in St. Louis and also chairs the subcommittee on the budgets for the state’s Public Safety and Corrections Departments. “In some of these outlying (counties), we need to run the numbers. I think we might find we’re going to save a lot of money on (privatization).”
Barrett told the House budget committee last week that private attorneys charge defendants anywhere from $200 to $500 an hour to handle cases. The pay for contract work for the public defenders office depends on the severity of the crime: private attorneys get $10,000 for a murder case, $750 for low-level felony drug cases and $375 for misdemeanor cases, according to the office.
In 2017, in contrast, it cost the state $325 per case to represent most indigent defendants, according to the office’s annual report.
“Our only concern is that people have attorneys, whatever variety they are,” Barrett said. “But is there an availability of private attorneys willing to take contract cases?”
About 15 percent of the state public defender system’s budget already goes to contracts with private attorneys. But fewer than half of Missouri’s counties have lawyers available to accept contracts. That means that qualified lawyers must drive long distances for small compensation, Barrett said. And not all are willing or qualified to accept serious felonies, such as robbery or assault.
“It’s about as robust as it can be,” Barrett said of the office’s privatization efforts.
Rep. Robert Ross, R-Yukon, who represents Texas County, said he believes lawyers will step up.
“In many cases, you already have established attorneys who are not only qualified but then would love that opportunity for business,” he said. “They’re in a much better position to perform this function.”
Last year, public defenders opened about 530 cases in Texas County, and one was handled by a private attorney, according to the annual report. The county has a population of about 26,000 and is about two hours east of Springfield, Mo.
But the public defender office that represents Texas County also represents five other counties. It was assigned about 3,700 cases last year, according to the office’s annual report. That was about a thousand fewer than in St. Louis County, which has a population about five times that of the six counties combined.
The office that handles Texas County has suffered lots of turnover recently. Eleven of 13 staff attorneys left in the past 18 months, Barrett said. The office rehired as people left.
A state obligation
Legislation has been introduced over the past few years to privatize some of the public defender duties, but the bills never gained much traction. The proposal introduced in the House this year would hand over about 90 percent of the state’s public defender cases to private lawyers.
“My main concern is fulfilling our constitutional obligation of providing defense to the indigent,” said Ross, who is sponsoring the legislation. “Currently, with the way that this is operating, I don’t think anybody would make the contention we are actually making good on that requirement.”
Under the proposal, private lawyers would handle all traffic cases, all misdemeanor cases, all probation violation cases and lower level felonies, the longest punishment for which is five years in prison.
Last year, those kinds of cases made up about 88 percent of the public defender office’s workload, according to data in the office’s annual report.
Public defenders would still handle the most severe felonies, such as first-degree burglary and murder. Those kinds of cases made up about 9 percent of the office’s caseload, according to the report.
The public defenders’ office has had a fraught recent history. In 2016, the Legislature approved a $4.5 million boost to the office as it struggled to represent all its clients, but Gov. Jay Nixon, a Democrat, slashed funding by $3.5 million.
Soon after, Barrett assigned Nixon a case, citing a provision of state law allowing the director to appoint members of the state bar to represent indigent defendants. The move — which Barrett said wasn’t a “stunt” — gained national attention. But Nixon never had to defend anyone. A Cole County judge ruled Barrett didn’t have the power to appoint the governor to a case.
Last year, a group of private lawyers in St. Louis pledged to volunteer their services to help alleviate some of the pressure on public defenders, and Gov. Eric Greitens restored $2.5 million to the office. Then, however, it suffered another hit as the ACLU of Missouri filed its lawsuit.
The lawsuit contends the state’s public defender system is failing to meet “the constitutional floor of providing minimally adequate representation to indigent defendants.”