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Public defender wait lists in St. Louis County not a solution to Missouri’s constitutional crisis

Public defender wait lists in St. Louis County not a solution to Missouri’s constitutional crisis

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For nearly three decades, the state of Missouri has failed its citizens, denied justice to the most vulnerable among us, and ignored its constitutional obligations.

If you’re accused of a crime, you have the right to an attorney, even if you can’t afford one. But in Missouri, tens of thousands of people are pushed through the criminal justice system each year without receiving the adequate legal representation to which they are entitled, simply because they don’t have the money to hire their own lawyer.

To be clear, these deficiencies in representation are well-documented. Indeed, the state has known about this ongoing problem for nearly 30 years and has done nothing to address the resulting harm that continues to befall criminal defendants across the state.

St. Louis County is no exception. Like its counterparts across the state, the public defender’s office in St. Louis County is underfunded, overburdened and overworked. It operated at 163 percent beyond its capacity in 2017, making it virtually impossible for defenders to provide their clients with constitutionally sufficient representation.

In March, the presiding judge in St. Louis County ruled that nearly 80 percent of the circuit’s public defenders have caseloads that leave them unable to effectively represent their clients.

While we agree with the judge’s findings, we believe the short-term solution suggested by both the court and the public defender’s office — namely to put defendants on a waiting list until a public defender becomes available, even if they are being held in jail in the meantime — is both untenable and unconstitutional.

When the court of appeals considers this matter Tuesday, we hope it sees that, while the courts must address the very real crisis created by the state’s failure to provide adequate public defense services, waiting lists will only exacerbate an already unfair and unlawful situation for Missourians who cannot afford a private attorney.

People placed on a waiting list are denied their Sixth Amendment right to counsel for an unspecified amount of time. As such, they are forced to languish in pretrial detention or otherwise have their representation unreasonably delayed, often leading them to plead guilty prematurely — even if they are innocent — just so that they can get out of jail and return to their families and whatever may be left of their jobs or careers.

This is not justice.

Waiting lists impede a person’s ability to communicate with his or her attorney, file timely motions (including for bond reductions) and investigate his or her case before evidence grows stale and witnesses disappear.

For decades, the Missouri State Public Defender has operated with too few attorneys handling too many cases, fueling a system that consistently fails to give each case the minimum recommended hours for ethical representation, as defined by the American Bar Association. In 2015, public defenders spent the minimum recommended hours of attorney time or more in only 3 percent of cases.

This is why the American Civil Liberties Union, the ACLU of Missouri, the MacArthur Justice Center at St. Louis, and Orrick, Herrington & Sutcliffe filed a class-action lawsuit challenging the public defender system in March 2017.

In fact, as bad as the caseload problem has become in St. Louis County, it is nowhere near the worst in Missouri. Rather, St. Louis County stands in the middle of the pack of public defender offices across the state. In Springfield, the office is operating at 296 percent of capacity. In Harrisonville, south of Kansas City, public defenders are at 312 percent capacity. And in the Kennett office, public defenders are working at a staggering 340 percent capacity.

This is a constitutional crisis. Missouri is forcing public defenders across the state to make an impossible choice: do the impossible or shortchange justice.

We know any solution in St. Louis County constitutes just a small part of the broader reform necessary to end this constitutional crisis in Missouri. We hope that the court’s decision will begin a new era of reform that does not come at the expense of the poorest, most vulnerable Missourians.

Jeffrey A. Mittman is executive director of ACLU of Missouri.

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