Public defenders left out of criminal justice reform efforts


 

 

A task force, created by Missouri Gov. Eric Greiten, is expected to make a recommendation this month on reducing the state’s prison population, which is the eighth highest in the country. In a Facebook post, the Republican governor wrote, “our prison system wastes your money and it wastes people’s lives, we need to fix that.”

Michael Barrett would like this desire for criminal justice reform to translate towards more funding for his work as a public defender. He’s not hopeful.

“No one ever got elected or re-elected for funding lawyers for the poor”, Michael Barrett, the Chief Public Defender of Missouri, told WikiTribune by email.

Reducing the prison population in the United States, the highest in the world, is an issue with bipartisan support. Public defenders, government-sponsored attorneys who represent low-income criminal defendants, struggle to be included in the national conversation.  (((nut graf)))

Barrett says his office is in “crisis mode” because of chronic underfunding, and their clients cases are suffering as a result. The American Civil Liberties Union (ACLU), a civil rights advocacy organization, is currently suing the state of Missouri for spending only  $355 per defendant, the second lowest in the nation. As a result, public defenders are only able to spend an average of 8.7 hours on the most serious non-homicide cases, 20 percent of the time recommended by the American Bar Association.

Barrett welcomed the lawsuit against his office, despite being a listed plantiff, ((((defendant?))) in part because it showed how public defense funding is linked with mass incarceration.

“[Politicians] talk about the need to adopt reforms to stem the tide of over incarceration …. look at the states that are at the bottom in terms of indigent defense funding – surprise, surprise, those are also, by and large, the states with the highest incarceration rates,” says Barrett.

Clients of public defenders in Missouri were found to have spent up to a year in jail waiting for a public defender to become available. Many accepted guilty pleas out of exasperation.

Greitens could not be reached for comment (((how many times did you try? Most governors’ press offices are fairly good about responding, especially when it’s not a hard interview))). But Missouri is not the only state that struggled to convince lawmakers to invest in public defense.

Louisiana, the state with the highest incarceration rate in the country, is short roughly 1,400 public defenders in order to ensure effective representation in line with “profession norms,” according to the Louisiana Project.

Lindsey Hortenstine, spokeswoman for the Orleans Parish Public Defenders Office, said, “We need to address mass incarceration, but the missing link is also public defense. We are the gatekeepers of the criminal justice system.”

Louisiana was also sued by the ACLU for underfunding public defense, in particular in Orleans Parish, what counties are known as in the southern state. A U.S. federal judge ultimately dismissed the case citing concern that he would be “encroaching upon the role of the state judges.” (((need a link in here)))

The federal system has zero role in public defense. In 1963, the U.S. Supreme Court ruled in Gideon vs. Wainwright, that “adequate legal assistance” was a right under the Sixth Amendment of the Constitution. The court, however, failed to dictate who pays and administers for essentially a new welfare program.

Without a clear mandate in Gideon, the responsibility of budgeting for the service defaulted to the state governments, which have been unable to handle the 500 percent increase in incarceration since Gideon. (((Why does lack of a dictate mean it defaults to the state? And below, we say it’s been kicked down to the local level)))

In 1965, two years after the historic case, 43 percent of defendants requested a court-appointed attorney, according to the American Bar Association Journal. This number boomed to 80 percent of criminal defendants in 1992, a figure that is still currently cited.

Public opinion is not overtly hostile towards public defense, according to Hortenstine, especially as critiques on policing gains political momentum. But within state budgets, public defenders are in competition with other social services. “When you’re talking billion dollar shortfalls… the hospital is going to win every time.”

Unlike Missouri, Louisiana is like the majority of states that pass the responsibility for public defense funding to their local governments, known as counties in the United States. Orleans Parish, counties in Louisiana, is particularly constrained in terms of funding. The parish funds public defense completely through traffic fines. When less drivers were pulled over in 2015, cases per attorney boomed.

The ACLU lawsuit against Louisiana cited that the state should do more to ensure of funding of public defense, instead of each parish, similar to a case in New York in 2007.

 

New York reform

New York, which relies on counties for funding like Louisiana, is one of the few examples of a state that increased investment in public defense after an ACLU lawsuit. In 2007, under Hurrell-Harring vs. the State of New York, fives counties were found to have caseloads that exceeded 600 caseloads a year, well above the 400 cases recommendation from the American Bar Association.

Ten years later, Governor Cuomo signed to a budget, for 2018, that allocated $250 million to indigent defense. In addition, the budget institutes a cap of 400 cases for a public defender.

Andrew Davies, Senior Policy Analyst for the Office Indigent Legal Services of New York, sees the difference as having a legislature that’s sympathetic to public defense.

“this is the most exciting moment for public defense in New York since 1963 when Gideon passed, no question what so ever, it’s a seismic shift.”

The reforms won’t come into full effect until 2023, leaving an anxious optimism within the indigent defense community. “There are no commitments, just projections. By 2023, we’ll have a different government and legislature, so nothing is guaranteed.” He believes that public pressure is the only way the statehouse will follow through with funding for public defense, a sentiment he see as more “popular” compared to 1963 when Gideon was decided.

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