Cat Kelly, the Deputy Director of the Missouri Public Defender System, is well acquainted with rocks and hard places. Speaking at the May meeting of West County Dems, she explained that the state PD System is Constitutionally bound to provide adequate legal defense for the indigent. That’s the rock. Inadequate funds to do it are the hard place. And by “indigent”, Missouri means really, really indigent. For example, a single person earning more than $10,000 annually is too wealthy to qualify for PD services. We’re 49th in what we spend per capita on indigent defense. Only Mississippi spends less.

As for how inadequate the funds are for representing these indigent people, let me give you an example. An attorney needs, on average, four hours to effectively handle the average misdemeanor or probation violation case. Public Defenders actually have an average of twelve minutes to consult with clients before their probation violation hearing. Missouri’s Public Defender System has 370 attorneys. But to handle its caseload, it would need another 171 plus 200 support staff.

That situation puts justice at risk in this state. Furthermore, the Public Defenders themselves are now at risk. A 2006 ruling by the American Bar Association stated that PDs were, like other lawyers, subject to disciplinary action if they took on more cases than they could effectively handle. Other lawyers, like doctors, are disciplined if they take on more cases than they can handle. PDs used to be treated as if that didn’t apply to them. Now it does.

Then in 2008, the courts jumped in and ruled that PDs were subject to malpractice suits like any other defense attorney. State employees–prosecutors and judges–don’t face that threat because they are standing in for the government; but since PDs are standing in for private attorneys, they get no such latitude. And handling as many cases as they do, they’re bound to make mistakes. Consider that PDs have no control over how many cases come at them. Defense attorneys and prosecutors can turn down cases. Judges set their own calendars, so they control how many cases they hear in a month.

Public Defenders, though, must often feel as if the dikes have been breached, the way the clients come pouring in. Unfortunately, a 2005 report that the state bar association commissioned found that PDs are committing malpractice daily–not because they aren’t good lawyers and not because they don’t care. Attorneys don’t work for $37,000 a year–that’s less than most firms pay their paralegals–and live in their parents’ basements and take on second jobs to pay off their student loans unless they care.

But none of them is Superman. They are overwhelmed by having to take every case that comes in. No, scratch that. They used to have to take all the cases. The governing board for the Public Defenders has decided to cut that caseload. It’s just that figuring out how to keep their caseloads within ethical and legal boundaries is tough, because anytime an indigent defendant is threatened with jail time, he must, Constitutionally, have a lawyer–one who is not too overworked to do the job.

Which brings us to another threat. Besides the threat to justice and the threat to Public Defenders, the state of Missouri is threatened. If indigent defendants don’t get adequate representation, Missouri may well face lawsuits. Such lawsuits have succeeded in seven states, and are pending in five others.

How to cut the caseload, that is the question. The governing board for the PD System has analyzed the amount of time its attorneys need for certain types of cases–obviously murder gets more time than a traffic violation. That way they knew how many cases a given PD and a given office should be taking on. And beginning in the most overloaded areas (Springfield, Columbia, and Jefferson City), the board members directed any office which had exceeded its maximum for three consecutive months to notify the court that it was going on “limited availability”. The office would triage its cases, removing the categories of cases that would save the Public Defenders the most time without seriously disrupting the justice system. Different bandaids were then applied for the cases that were turned down.

 

In Springfield, for example, eight private attorneys agreed to deal with all the probation violation cases for a year–which was great, until that year ended. Then …. same old problem. Elsewhere the court asked private lawyers to handle juvenile cases, or prosecutors agreed to handle minor misdemeanor cases without jail time, because the possibility of jail time is what kicks in the Constitutional mandate.

Talks are going on now in eleven districts in the state–Springfield, Carthage, Columbia, Harrisonville, Hillsboro, Jackson, Kirksville, Liberty, Maryville, Lebanon, and Clayton in St. Louis County–between the PDS and local governments because such limited availability is likely to occur in all those places soon. Basically, the PD offices are informing the courts in those areas that cases are going to have to be taken off their plate or the PD offices will have to close their doors when they’ve reached their maximum for a given month. Perhaps they’ll be taking cases for the first two weeks of the month, and then they’ll close.

While it’s true that the local courts can relieve some of the strain on the PDS by offering probation for misdemeanors, that alone won’t be sufficient to solve the overload. AND such a practice creates problems of its own–problems I’ll describe in the next posting.

Another possibility is to fine some offenders or direct them to places that don’t require attorneys–drug courts and programs for DWI offenders. Kelly said:

“In the last fifteen years, the number of nonviolent offenders in Missouri’s Department of Corrections has … doubled. It’s gone from about 7,000 to about 15,000–out of a total of 30,000. Missouri is 14th in the nation in terms of numbers incarcerated. Out of those 14,000 non-violent prisoners incarcerated, there’s a recidivism rate of 41%. If they’re put on probation, there’s a recidivism rate of 19%. And if they go through drug courts, it’s 10%. So not only are we spending about $233 million–which could more than fund the Public Defender System–to lock all these people up (at $16,000 a year), we are making ourselves less safe by doing to, because we are increasing the numbers that are likely to reoffend. What we’re doing is not working. And the wonderful thing is that this last legislative session, I really saw serious debate about that fact and a recognition on both sides of the aisle that we have to do something, because we as a state cannot afford our sentencing policies. And we’re not getting what we’re trying to buy anyway. So I am hopeful that some changes will come down the pike, but that’s a sea change. And that’s going to take some time. Unfortunately, time is what our clients don’t have because their cases are moving through the justice system. And time is what they’re gonna wind up with.”

Yes, legislators on both sides of the aisle recognize that the situation is desperate. If they are “lock ’em up and throw away the key” types, they know that we cannot threaten indigent defendants with jail unless we adequately represent them in court. And then obviously, there are those who believe that there should be a right to counsel in the interest of fairness.

The question is when our General Assembly will grow the cojones to be smart on crime instead of tough on crime–because you know that many of them fear getting voted out of office if they are perceived as weak. Maybe next year. The budgetary black hole is going to get bigger. And it won’t be an election year.