SPRINGFIELD — Beginning this week, public defender offices across Missouri will be able to refuse new clients as they try to deal with huge backlogs of cases.
The Missouri Public Defender Commission approved a policy in July that allows local offices to opt out of new cases if they exceed maximum caseload capacity for three consecutive months.
Offices in Springfield, Ava, Jefferson City and Columbia will be the first to begin enforcing the policy Wednesday.
The first types of clients to go unrepresented will likely be people accused of probation violations or those charged with certain collections and traffic crimes. Private attorneys who can take cases for free may take up some of the slack, but it's not known what effect the shift will do to an already overburdened court system.
"This isn't going to come close to fixing the problem," said Cathy Kelly, deputy director of the state public defender system. "We're trying to move toward fixing capacity without pulling the rug out all at once."
Greene County Presiding Judge Dan Conklin said he was pleased that the offices planned to phase in the cutoff, which he said was "reasonable," but acknowledged, "We're in trouble."
The state's 36-year-old system for representing Missouri's poorest criminal defendants who can't afford their own counsel has not seen a meaningful increase in staffing or budget since 2000.
A 2005 study by a Massachusetts consultant said, "In our opinion, the Missouri Public Defender System is on the verge of collapse."
Each of the state's 36 public defender offices is juggling more cases than its attorneys can handle and is constantly having to replace defenders as they burn out or leave for higher-paying jobs.
For example, the 19-defender office in Springfield handled 3,487 cases during the fiscal year that ended in June. Individual defenders usually have 150 open cases at any one time and the office overall is operating at more than 156 percent capacity, said Rod Hackathorn, the office's top defender.
That heavy burden means the system isn't representing some clients as well as it should, Hackathorn said.
"I certainly believe those defendants that have serious cases not only receive adequate counsel, I believe they receive very good counsel," he said. "The clients who are cheated attorney time are those with misdemeanors or lower-grade felonies."
Guidelines call for public defenders to see their jailed clients within seven days of receiving their case files and then once per month after that. But Hackathorn said those guidelines have become a goal rather than reality.
Often, attorneys' only meeting with their clients is in whispers when the defendant appears in court.
"You can't have meaningful conversation in a courtroom minutes before a hearing," Hackathorn said.
Lower-priority cases also typically suffer from less investigation, undermining the public defender system's purpose, which "is not about having someone to stand next to a defendant in court," said Cathy Kelly, deputy director of the state public defender system. "It's about having the time and resources to check out what the state's case is."
In deciding where to begin cutting, Kelly and Hackathorn met with Greene County court officials earlier this month, saying they would initially focus on areas where defense counsel isn't a constitutional guarantee. For example, they'll likely stop representing forgery and bad-check cases, as well as driving-with-a-revoked-license cases, where prosecutors are more concerned with getting defendants to pay restitution instead of serving jail time.
If those cases do appear headed for a jail sentence, they'll be put on hold while the accused is given a chance to make the situation right. Defenders would be brought in as a last resort if the defendant refuses to make restitution.
Probation violations were also targeted, as they are relatively simple legally but can take up a huge amount of time public defenders could divert to more serious criminal cases. For the Springfield office, probation violations make up 33 percent of the overall caseload last year.
Instead, they'll be referred to private attorneys willing to take the cases pro bono, though the Springfield Metropolitan Bar Association said it didn't want to institutionalize the practice.
Conklin said judges would do a more thorough job determining whether defendants are truly indigent, cutting down on cases referred to public defenders.
It's still unknown how the changes will affect the speed cases make their way through the court system and defenders may choose to divert more types of cases, including perhaps all misdemeanors.
Other possible solutions include increasing the number of defenders provided by the state — an idea that is slowly gaining acceptance by lawmakers, Kelly said — or decriminalizing some types of offenses.
"Pretty much everyone agrees, yes, there's a problem, and it has to be changed," Kelly said.