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In Pleas for Funding, Public Defenders Go to Creative Extremes

It’s not just Missouri that has resorted to desperate measures.

REUTERS/Jim Young

Public defenders should be spending at least 47 hours per case in their duties representing defendants who are too poor to afford private lawyers—a standard set by the American Bar Association. But in Missouri, it’s been more like nine hours per case. Missouri’s public defenders have had to take on as many as 200 cases at a time—that’s per lawyer—and this has been a problem since at least 2005. In 2009, Missouri’s state supreme court declared that “every Missouri public defender office was over its calculated capacity, … which calls into question whether any public defender fully is meeting his or her ethical duties of competent and diligent representation in all cases assigned.”

Publicly funded attorneys in Missouri have not been able to provide quality representation for indigent defendants, the people most vulnerable to falling prey to a too-often unforgiving criminal justice system. This has been especially true under the watch of Jay Nixon, who served as the state’s attorney general from 1993 to 2009, and has been governor ever since. Which is why the director of Missouri’s public defender’s office, Michael Barrett, took the extreme move this week of appointing the governor to represent a client that Barrett’s overburdened staff does not have the resources to serve.

This unprecedented maneuver made national headlines on the strength of its audacity alone. But Missouri is not the only place that’s had to resort to creative lawyering in hopes of forcing authorities to take the plight of public defenders seriously. A crisis has unfolded in Louisiana as well.

In New Orleans, in particular, public defenders reluctantly began turning away serious felony cases this year due to issues similar to the ones playing out in Missouri. This led to an ACLU lawsuit, which may have been a stealth tactic to force the state to give the public defender’s office the resources it needs to function. It also led to New Orleans judges re-assigning some of those rejected cases to private attorneys. But when those attorneys also rejected the cases due to the courts’ inability to pay them for their services, a judge declared those defendants free to go home, due to lack of legal representation.

Those defendants remain in jail, however, due to pending appeals to the judge’s decision. But they still ultimately may end up released because New Orleans—and Louisiana—has not figured out how to adequately and sustainably fund public defender services.

Funding is the paramount issue in both Louisiana and Missouri. In Louisiana, the state depends on a user-pay system, where public defender services are largely funded from the fines and fees imposed on people for mostly misdemeanor crimes, like speeding. This funding scheme is pretty volatile: How does the office find financial certainty when its major revenue source is something as unpredictable as speeding-ticket fines? As a result, the New Orleans Public Defender’s office has let go of much of its staff over the past few years.

It was just this summer that the office was able to lift a hiring freeze it set last year, thanks to a small emergency stimulus from the state that shuffled funds away from death-penalty services. But Chief Public Defender Derwyn Bunton tells CityLab that it is still extremely underfunded compared to parts of the criminal justice system that bank on putting people in prison.

“Here in New Orleans, there’s somewhere near $200 million aimed just at finding, caging, and convicting people,” says Bunton. “That’s $140 million for the police force, $7 million to the prosecutors, $3 million to the courts, and somewhere near $60 million for the jail. Meanwhile the city is providing somewhere near $1.5 million to make sure that innocence is protected.”

This is an almost identical snapshot of what the funding priorities have been like in Missouri under Nixon, who vetoed the state legislature’s approval of additional funding for public defender services both this year and last. He did this despite a damning report from the U.S. Justice Department last year about the St. Louis County Family Court’s failures in protecting poor and black juvenile defendants. The St. Louis Post-Dispatch’s editorial board wrote of these findings:

Missouri’s politicians—including the Republicans who run the Legislature and Mr. Nixon, a Democrat and former attorney general—are addicted to putting more and more people in jail. Being “tough on crime” is more important to them than being smart on crime.

One comparison tells the story. In 1997, the state’s corrections budget was less than $300 million a year, which was about 5 percent of the budget. Higher education funding at the time was 12 percent of the state budget. By the first year of Mr. Nixon’s second term, in 2013, the higher education budget in Missouri was down to 9.7 percent of the budget, while corrections had climbed to 7.5 percent. As Mr. Barrett points out, in Mr. Nixon’s tenure as governor, the corrections budget has climbed by $55 million.

Until Missouri starts making a dent in its school-to-prison pipeline and investing its savings into young people—particularly those living in concentrated poverty—then the state’s budget priorities will be upside down. It will rank low on the things that matter—like schools, health care, public defender funding and economic growth. It will rank high in such dubious categories as prison population and school suspensions for poor black kids.

Nixon continues to withhold a $3.5 million replenishment for the public defender’s office that the state legislature authorized in June. A state commission created to improve public defender services has sued Nixon to force him to release the funds, but hearings on that don’t start until next week. All things considered, appointing Nixon to take up some of the burden by having him represent a client isn’t just theatrics, it’s logic. Nixon helped break it, so he needs to fix it.

Nixon has responded that the public defender’s office doesn’t have the legal authority to assign him in this manner. Whether they do or not, that doesn’t absolve him of his responsibility as governor, and as a public attorney, to ensure that the constitutional rights of the poor are protected in the criminal justice system. It’s the same message that public defenders are hammering on in Louisiana.  

“Really I think what decision-makers need to look at is this notion of simple fairness,” says Bunton. “The disparities in our system are so stark that anyone looking at them can see that things simply are not fair. So that’s what we’ll be asking for—creating a more fair and just system.”

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