COLUMN: Improving public defender system is predicament for Missouri

Thursday, March 18, 2010 | 12:01 a.m. CDT; updated 11:42 a.m. CDT, Wednesday, August 11, 2010

The Missouri Public Defender System is pitifully underfunded and overloaded. A basic constitutional principle (the Sixth Amendment) is the right to counsel, and courts held long ago in Gideon v. Wainwright, 1963 that the right is so basic that counsel will be provided if a person cannot afford it. Understandably, few citizens and legislators actively support increasing public defender funding when K-12 education programs, mental health programs and state employee health benefits and holidays are being cut.

The result is an underfunded constitutional right without a sufficient political constituency. At some point, justice underfunded is justice denied.

The public defender system in Missouri was established in 1982 as an independent department in the judicial branch to provide legal representation to indigent criminal defendants. It is governed by a seven-person commission appointed by the governor. The statewide system hires and trains lawyers to work in its office throughout the state.

Public defenders have too many cases (an average of 273 trial cases compared with the U.S. Department of Justice standard of 225), low lawyer salaries and high lawyer turnover, substandard office facilities and insufficient investigators and support staff. Missouri is reported to be No. 47 among the states in public defender appropriations per capita.

The consequences are continued high lawyer turnover and substandard legal representation. Experienced public defenders recount stories of meeting a client for the first time the morning of a hearing and having only a few minutes to devote to the case. On average the Public Defender System expends less than $300 per case on about 80,000 cases a year. Of course, indigent criminal defendants are not always easy to represent well. Often they are undereducated and uninformed with complicating mental and behavior problems — probably not where new law graduates should start their careers.

This is not a new problem; it is a continuing, unsolved problem.

The overloaded public defender system has had the attention of lawyers and legislators for years. In 2005, the Missouri Bar Association, the Missouri Supreme Court and the Missouri Senate all established task forces to examine the problem and propose solutions. They all agree: the Missouri Public Defender System is on life support that does not offer the quality of legal representation required by the Bar’s code of ethics.

The Missouri Bar Association has previously called for major reform to this overtaxed public defender system, concluding that it has been so underfunded that it is not complying with either the Public Defender guidelines for representation or the Missouri Supreme Court rules of professional conduct.

A Missouri Senate Interim Committee on the public defender system reached similar conclusions concerning heavy caseloads, underfunding and the lack of support staff. The committee recommended contracting out to private attorneys, increased lawyer salaries, increased law school loan forgiveness and efforts to improve efficiency. All of these require increased funding.

Last year, the legislature passed SB37, which would have allowed the Public Defender Commission to establish case load limits. This bill was vetoed by Governor Jay Nixon, who argued that that approach was not a sound one. The governor and the legislature did allocate additional funding to hire 12 lawyers on contract.

In his well-received 2010 State of the Judiciary Address, Chief Justice William Price focused more attention on the public defender crisis and proposed that statutes be changed to allow public defenders to limit to their caseloads to the most serious criminal cases rather than focusing on offender’s indigency.

With a lack of resources and the lack of a strong constituency, this is a tough problem to solve. Currently, substantially increased funding seems unlikely. Therefore, I can see only two types of solutions: reductions in public defender demand and changing administrative responsibility to increase public defenders' political clout.

Reducing the demand for public defenders by reclassifying specific non-violent crimes such as traffic and probation violations may be fruitful. On the other hand, increased use of drug and DWI courts could increase demand for public defenders even with net savings because of reduced prison time.

Ultimately, increased political support for public defender programs may be the only long-term solution. There are several possible routes to increased public defender political support.

  1. As is done in several states, public defender could be a county-wide elected office in Missouri’s larger counties. In smaller counties, a clear responsibility for offering defense services to indigent accused should be assigned to county clerks or commissioners. This means more resources from counties.
  2. Several states and the District of Columbia coordinate public defenders with social services agencies when appropriate. The point here is to increase both the quality of social and legal services provided to the defendant and also to increase the visibility of the demand for indigent legal services.
  3. Make the public defender part of the local law enforcement process by partially funding it through the country prosecutor budget, with adequate judge oversight. While lawyer conflicts of interest would need to be monitored by a judge, improvements in offices, computer support, and paralegal assistants could be funded by the local prosecutor’s office.
  4. Increase the volume of legal services provided through Missouri Bar programs, Missouri law schools, or tax incentives for private attorneys. Again this requires more funding.
  5. As a last, and most drastic, resort Missouri judges could order increased funding for the Public Defender System. As they have done for K-12 education funding periodically, they should review the various reports evaluating the Public Defender System, conclude that it is inadequate and order the legislature to expend the funds necessary to increase the systems resources up to a level matching national standards.

At some point, justice underfunded is justice denied.

David Webber is an associate professor of political science at MU. This article is presented courtesy of The Missouri Record, which carries Webber’s column each Tuesday.

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