WHAT OTHERS SAY: Missouri's unconstitutional — and expensive — public defender crisis

Monday, August 6, 2012 | 5:27 p.m. CDT

You can get a pretty good argument going about which part of Missouri's state government is the biggest disgrace.

Our favorite is the absence of campaign donation limits. Some say education funding. Others say the 17-cent cigarette tax. Still others will argue it's the dismal state of mental health services. Some point to the awful tax credit giveaways in lieu of smart economic development.

But somewhere near the top of any list would have to be the dismal state of the state Public Defender System. In 2005 and again in 2009, studies for the Missouri Bar said the system that provides lawyers for indigent defendants — nearly 83,000 in 2011, more than 80 percent of all defendants — is in "crisis."

Three different chief justices of the state Supreme Court have agreed. The attorney general of the United States has agreed. Even the Missouri Senate and Gov. Jay Nixon have agreed, though they didn't increase funding for the system much. That might require a tax increase, and tax increases are bad. Very bad. Particularly when the beneficiaries might be poor people accused of crimes.

It's amazing: For more than a decade, important people and organizations have agreed the public defender system is a mess. But no matter how egregiously the state violates the Sixth Amendment to the U.S. Constitution, nobody will do much about it.

In the fall of 2008, the Public Defender Commission took matters into its own hands. On the advice of the state Supreme Court, it created an administrative rule that limited how many cases each of its regional offices would accept. If the caseloads max out for three straight months, the office can refuse new appointments.

The Sixth Amendment guarantees criminal defendants the right to counsel, and courts have said that means hard-working and effective counsel. There are only so many cases that the public defender system's 376 lawyers can handle effectively.

In July 2010, the public defender's office for the 38th Judicial Circuit in southwest Missouri went on "limited availability." Nevertheless, late that month, when squat, baby-faced 22-year-old Jared Blacksher appeared for initial arraignment on burglary and forgery charges before Christian County Associate Circuit Judge John Waters, the judge assigned him a public defender anyway.

The judge said it was a "horrible situation," but the law required him to appoint counsel. The public defender's office sued. On Tuesday, the Missouri Supreme Court ruled 4-3 that the public defender's office had been within its rights to draw up the rule.

The high court hinted that it might consider a broader challenge to the rule itself were someone to raise that issue. But Judge Laura Denvir Stith, writing for the majority, urged "judges, prosecutors and public defenders to work cooperatively to develop solutions, in meetings captured on the record, to avoid the scenario that occurred here."

Judges, prosecutors and public defenders have met privately time and time again without results. Prosecutors have scoffed, saying they're as overworked as the public defenders — though, of course, they choose which cases to prosecute. Judges say they're caught in the middle.

The legislature and governor deal with this problem the way they deal with so many others: They punt.

Not every problem can be fixed with more funding. This one can. Do the math:

Had Blacksher been represented by counsel, he could have been sentenced to drug court and gotten his life turned around. Instead he was released with time served. He re-offended and is doing seven years at the Algoa Correctional Center in Jefferson City.

It will cost taxpayers $145,600 to house him for seven years, and he's just one guy out of hundreds who could be diverted from prison. Assistant public defenders in Missouri start at $38,040 a year.

So even if you're not real big on the Bill of Rights, maybe this argument will convince you: In the long run, more public defenders and smarter sentencing will save you money.

Copyright St. Louis Post-Dispatch. Reprinted with permission. Questions? Contact Opinion editor Elizabeth Conner.

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