Erik Phifer had given up.
He had been waiting in the Boone County Jail for more than a month, applied for a public defender five times and still did not have a lawyer.
The judge told Phifer he should wait until he had a public defender to represent him, but Phifer was done waiting.
“I just really didn’t think I’d be seeing a public defender anytime soon,” he said in a conversation at the Fulton Reception and Diagnostic Center.
So Phifer, 30, confessed to violating his probation and was sentenced in January to three years in prison for a 2018 drug possession charge.
And with no public defender, the Columbia man could not negotiate his sentence with the state.
The Missouri State Public Defender System has been in crisis for decades — underfunded and overburdened.
Yet, the overall number of cases assigned to each attorney in the statewide trial division and in Columbia has been slowly decreasing since 2012.
The numbers are misleading.
As the case numbers go down, the percentage that are felonies is going up — by almost 20% in the Columbia office over the last seven years.
Columbia District Defender Sarah Aplin said, in general, having more felony cases than misdemeanors creates a heavier workload. They require more hours and resources to prepare because the stakes are higher, involving much longer potential prison sentences.
“(When) we talk about public defender caseloads and the differences between drowning really fast and drowning slowly, you’re still drowning,” she said.
Last year, attorneys in the Columbia office had 192 cases each, for a total of 2,695 cases. Of that number, about 53% were felonies.
In 2018, 2,528 cases were opened, of which about 51% were felonies compared to the 3,456 cases opened in 2017, with about 48% being felonies.
And since July 1, 2019, the beginning of the fiscal year, the office has opened 2,224 cases continuing the trend of declining case numbers.
Too many cases, not enough cash
In 2012, public defenders statewide had 258 cases each. The following year, the Missouri legislature approved the use of waitlists to help reduce the number of cases public defenders were handling, but only if a judge gave prior approval.
Boone County implemented one in September 2017, which had 1,059 people on the list, as of May 13.
In Aplin’s office, there are 14 attorneys, including herself, and seven staff members.
But she said for every attorney, she really needs two staff members. That would allow public defenders to focus solely on attorney-specific work instead of administrative tasks, like reviewing and organizing records.
And still, two staffers per attorney would allow the office to manage just its current caseload.
“If we’re going to take our waitlist cases and keep up with the influx of serious cases that the prosecutor’s office charges, then I probably need twice the attorneys in my office and the support staff to go along with that,” she said.
The director of the Missouri State Public Defender System, Mary Fox, requested $61 million for the system’s 2021 budget, but the state passed HB 2012 May 8, giving the system $53 million.
Providing funding to hire attorneys for lower-income people is not a popular position, Aplin said.
“No state Congressperson or state legislator wants to go back to their district and say, ‘I’ve really been representing you guys while I’ve been representing the people of Missouri, including the poorest and most vulnerable people because I made sure that they had attorneys to really fight for their cases,’” she said.
Sean O’Brien is a professor at the University of Missouri-Kansas City School of Law and was also the chief public defender of Kansas City from 1984 to 1989. He has published multiple papers about Missouri’s crumbling public defender system.
O’Brien became a public defender in 1981, just nine years after Missouri’s system was founded. It has been bankrupt from the beginning, he said.
“When you chronically underfund one side of the litigation ... it’s a reduced quality of defense. It’s a reduced quality of justice for everybody,” he said.
And that’s how people like Phifer fall through the cracks, though O’Brien describes it differently.
“When somebody gets screwed over by the criminal justice system, I seldom say that they have fallen through a crack,” O’Brien said. “The system itself is a black hole. It’s like looking at the Grand Canyon and calling it a crack.”
Punishing those who help
A Columbia public defender, Karl Hinkebein was put on probation in 2017 by the Missouri Supreme Court for failing to “diligently represent” six clients. Hinkebein, who worked on post-conviction relief cases at the time, had 110 cases as well as chronic health problems.
Aplin was shocked by Hinkebein’s reprimand. She always thought if push came to shove and an ethical complaint was made against her, the process would reflect an understanding of the Missouri Public Defender System’s current state.
“That was very jarring for me to realize,” she said. “I could very well be standing in front of the Missouri Supreme Court being told that I should have been turning down cases and being told that I’m going to lose my license.”
In January, a federal judge refused to sign off on an agreement between the American Civil Liberties Union of Missouri and the Missouri State Public Defender System that would limit work week hours and set requirements for meetings with clients. The agreement was an effort to settle a 2017 class-action lawsuit filed by the ACLU, claiming that the state’s system is unconstitutional.
The ACLU filed a new lawsuit in February to end the use of waitlists and alleged there are more than 4,600 people waiting for public defense counsel across the state, with 600 of them sitting in jails.
Despite the waitlist, public defenders still feel overwhelmed.
Aplin said, although she can fulfill her ethical duties as an attorney for her clients, it takes longer than she would like it to.
That means having to request more continuances — postponements of court proceedings.
“These are real people’s lives on the line when (public defenders) can’t do the things that they need to do,” Aplin said.
For Kayla Jackson-Williams, there were times she was ready to just be done. She began working in the Columbia office in 2017 and left in February, when she was offered a position at a private law firm.
“And then you have to remember, ‘OK, they need you. Strap on your big girl boots. Let’s go,’” she said.
As for caseloads, it all depends on the number of felonies and how many of your clients are in custody, Jackson-Williams said.
“The numbers in a sense weren’t terrible at all times, but depending on the type of case that it was, the numbers could be awful,” she said. “In that sense, 80 cases starts to kick your ass because it’s, ‘how do I have the time to spend an hour with each client at the jail, spend an adequate amount of time prepping their case, still go to court and still have a healthy personal life?‘”
Change needed on both sides
Another possible solution has been proposed for the chronic crisis in the public defender system: changing the way cases are prosecuted.
St. Louis County Prosecuting Attorney Wesley Bell, elected to the position in 2018, began almost immediately changing the way some cases were prosecuted in the county.
Bell, a former public defender, stopped prosecuting marijuana possession charges involving less than 100 grams and no longer sought incarceration for people who failed to pay child support.
Bell began focusing his prosecutorial efforts on violent offenders, keeping low-level crime out of the public defender system.
O’Brien said prosecutors across Missouri should be implementing reforms like Bell’s because they work.
“We absolutely do need to rethink how prosecutors approach crime problems in the justice system,” he said. “You see people like … Wesley Bell … taking all kinds of heat because they want to change how we do business, but we need to change how we do business.”
Boone County Chief Prosecutor Dan Knight did not return calls for an interview about whether he has considered implementing reforms.
The 13th Judicial Circuit, comprising Boone and Callaway counties, has a variety of alternative sentencing programs for people with addiction and/or mental health problems and veterans.
But the system is still strained.
Aplin says people-centered approaches to keeping non-violent offenders out of the criminal justice system would better help her office use its limited resources.
“Then I and the attorneys in my office aren’t … putting our resources towards those cases,” she said. “We’re able to focus on the person who’s in jail for allegedly shooting somebody.”
For Phifer, if he could go back and wait until he had a public defender, he said he would.
The outcome might have been the same, but Phifer might have avoided prison time.
He said the state initially offered a 120-day sentence and later changed to revoking his probation and executing his original three-year sentence. The assistant prosecutor on Phifer’s case was not available to confirm the recommendation of a 120-day sentence, and the office said he was the only person who could do so.
Without a public defender, Phifer did not have anyone to advocate on his behalf.
“That’s a lot of time of your life that you don’t get back,” he said. “You miss out on everything.”