Part II of a seriesWhen the Missouri Public Defense System decided to close offices to new cases when offices reached capacity, it amplified an SOS signal its leaders have been sending out for more than a decade. Now, a pending State Supreme Court decision may rush the system’s rescue, giving defenders life preservers while they wait for a rebuilding of their ship.
In the writ, Missouri Public Defender Commission v. Waters, the public defense system essentially asked the court to affirm that a judge cannot appoint a public defender to a case after an office that reached its caseload capacity has closed, said Cat Kelly, deputy director for the state’s public defense system. The legal wrangling in that case could take weeks, Kelly said, and if a verdict is in the public defenders’ favor, it has yet to be determined what will happen to indigent defendants after the public defender’s office closes to new cases.
“We do not in any way think this is a fix,” Kelly said. “Closing the doors is extremely difficult for public defenders. But we aren’t serving those defendants by taking on more than we can handle, either.”
There are some options outlined in a December 2009 state Supreme Court opinion, known as the Pratte decision, that may be utilized in the short term. These include removing the risk of jail time for certain nonviolent offenses, which is what triggers the constitutional guarantee of legal defense, or the appointing of private counsel involuntarily and finding another revenue stream for paying that counsel. It’s also possible that private counsel can be appointed and not paid, Kelly said.
Funding is at the heart of the problem, as the Missouri public defense system operates on an annual budget of $34.7 million; Kelly projects another $21 million a year is needed to hire enough lawyers and support staff to meet the state system’s existing caseloads.
According to A Race to the Bottom, a June 2008 report by Washington, D.C.-based advocacy group National Legal Aid and Defender Association, only Mississippi’s $4.15 per capita spending on indigent defense was lower than the $5.20 Missouri spends.
“The national average is $12.09,” NLADA Director of Research David Carroll, noting U.S. Attorney General Eric Holder has called the nation’s indigent public defense a crisis.
“Missouri could double its spending and not even be spending as much as the national average.”
MO money
In seeking a long-term solution, money continues to be the primary obstacle to indigent defense. Carroll said generally there are three platforms used to deliver indigent defense services: a statewide system that assigns outside counsel to cases; a state board contract system, where an individual firm or company is contracted to represent indigent defendants; and a state-run public defense system such as Missouri’s. All states use one – or a combination of – those three methods, he added.
“I’m less concerned with the delivery service model than I am with effectiveness,” he added. “With Missouri’s current budget and current caseload, it would be difficult to be effective simply by adapting another model.”
Republican State Sen. Rob Mayer, who represents District 25 in southeast Missouri and is chairman of the Senate appropriations committee, has explored other options for Missouri’s public defense system, including the enlisting of private practice attorneys to help with the overload and contractual hiring. His efforts have hit the same budgetary roadblock.
“We’re still trying to determine how we would fund that,” he said of contract hires.
Another option considered was changing the program so that public defenders only worked on felony cases, Mayer said, noting the challenges in determining how misdemeanor cases would be handled. Kelly noted that with the defense system’s current budget, it would still require nine additional attorneys statewide to effectively staff a felony-only system.
Frustrations mount
Taney County prosecutor Jeffrey Merrell said the public defense system is holding hostage the rest of the justice system.
“We’re all trying to handle these cases, and to get this more or less slap in the face from the higher ups, the bureaucrats in the state level office of the public defender system saying we’re going to decline these cases, I think is really sickening,” he said.
In response, his office has identified four options for change: return to Missouri’s previous public defense system, which appointed private attorney volunteers and paid them an hourly rate; issue indigent defendants vouchers to choose volunteer private counsel; adopt an apprentice-type practice with new lawyers required to represent indigent defendants for a set number of hours; and competitively bid management of local and regional public defense offices. A bid process, he said, may save the state money by reducing expenses such as overhead and supervisory staff – costs Merrell suggested could be covered primarily through private case billings.
“Even so, say there are the exact same amount of costs, and the state isn’t saving a single penny. By adopting that alternative option, the state isn’t having people decline to take cases,” he said.
According to
www.publicdefender.mo.gov, state public defenders earn between $37,296 per year and $76,285 per year.
Taney County Public Defender Reidar Hammond said by his calculations, the state currently could afford to pay a private attorney $16 an hour to $18 an hour to handle these cases.
“I think you would find no one would be willing to do that,” Hammond said.
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