Gideon Alert: Prosecutor calls Missouri PD workload crisis a "contrivance" as more attorneys turn back cases

BY David Carroll on Thursday, July 29, 2010 at 2:47 PM

On July 29, 2010, the St. Louis Today reported that public defenders in that city are considering refusing new cases, as their colleagues at the Missouri State Public Defenders (MSPD) have already done in Springfield and Troy.  The news story also reports that the prosecuting attorney calls the whole public defender caseload issue “contrived” because prosecutors handle a far greater percentage of cases than do public defenders.

Far from being a “contrivance,” the Missouri public defender system has been one of the most overworked and underfunded right to counsel systems in the country for its entire history.  “It is not possible [for public defenders] to control the number of criminal cases which are filed, the seriousness or complexity of the cases, or the number of persons who may appear as indigent defendants.  The Constitutional right to counsel in conjunction with a lack of control over the amount of services to be delivered creates a situation in which the management options are sharply limited.  Administering the public defender and appointed counsel programs within the constraints of the statutes becomes increasingly difficult as costs and caseloads climb.”  With such clarity, the Missouri Public Defender Commission accurately predicted the caseload problems that they would face over the next three decades in a report sent to the state legislature in 1979.

In 1982, the American Bar Association (ABA) published an overview of the right to counsel in America -- called Gideon Undone -- that ranked Missouri as 45th in the country in indigent defense cost-per-capita spending (above only North Dakota, Arkansas, Georgia, Mississippi and Alabama).  Twenty-six years later, the National Legal Aid & Defender Association (NLADA) Michigan report, A Race to the Bottom, reported that Missouri had dropped to 49th place in the intervening years, ahead now of only Mississippi.  During that same time, Alabama, Georgia and North Dakota had all moved out of the bottom ten states in indigent defense cost-per-capita.  Alabama, for example, was spending $0.45 per capita on indigent defense in 1982; in 2008, Alabama spent $9.17 per capita.  During the same time period, Missouri had only managed to increase indigent defense per capita spending from $0.79 in 1982 to just $5.20 in 2008 (or, 52% below the national average of $12.09).

In 1993, The Spangenberg Group, working under the auspices of the ABA, produced their first report on the workload problems at the Missouri State Public Defender, which declared that the public defense system lacked “the necessary resources to provide competent representation,” and that all staff members were “overworked.”  The report specifically held out St. Louis as having the most serious caseload problems in the state. 

In October 2005, a Public Defense Task Force of the Missouri State Bar found the Missouri State Public Defender to be operating in a crisis mode.  “Public defenders throughout the state are struggling on a daily basis with a frequent exodus of colleagues, low salaries, and low morale.  There appears to be no relief in sight.  In fact, as new cases continue to be assigned, and serious cases of departing attorneys continue to be transferred to a diminishing number of senior attorneys or to less experienced attorneys, the crisis deepens.” 

In the aftermath of the State Bar Task Force, the Missouri Senate established an Interim Committee on the Missouri State Public Defender System.  The study resulted in the passage of Senate Bill 37, a bill that authorized the State Public Defender Commission to “establish maximum caseload standards to ensure that the system was adequately fulfilling the state‘s constitutional obligations to provide effective assistance of counsel.”  That bill was vetoed by the Governor, despite his acknowledgement of the workload crisis, because he believed it gave too much power to the Commission.

In 2009, The Spangenberg Project at George Mason University was brought back to study the problem further.  Their latest report concludes: “Our findings lead to the inescapable conclusion that MSPD is confronting an overwhelming caseload crisis, one of the worst of its kind in the nation—a crisis so serious that it has pushed the entire criminal justice system in Missouri to the brink of collapse.  The severity of this crisis has been forecasted for years, by those closest to it, but next to nothing has been done.  And now the situation is as urgent as it is dire.”

In February of 2010, Chief Justice William Ray Price, Jr., chided the Legislature in his annual State of the Judiciary speech, stating: “It does no good to commit resources to law enforcement and to arrest criminals if you don’t know what you are going to do with them, or you cannot afford to do what you should with them, after they have been arrested.  It does no good….  The solution to this problem is relatively simple: either increase the public defender’s funding or tell the public defender who to defend and who not to defend within the limits of their funding.”

The Missouri State Public Defender already shares conflicts between neighboring offices to hold down assigned counsel conflict costs and has cut back support staff far beyond what is reasonable or efficient.  Luckily, the Missouri Supreme Court has pointed the way out of this crisis by suggesting criminal justice stakeholders meet to discuss less costly criminal justice procedures.  Changing prosecution charging practices, creating new diversion courts, using mediation to resolve non-violent offenses and reclassifying certain crimes to civil infractions are all perfectly acceptable ways to decrease defender caseloads without the state spending one dime more for public defense services.

In conclusion, Gideon v. Wainwright determined that defense lawyers were “necessities” rather than “luxuries” in criminal courts because states “quite properly spend vast sums of money” to establish a “machinery” to prosecute offenders.  This “machinery” – including federal, state and local law enforcement (FBI, state police, sheriffs, local police), federal and state crime labs, state retained experts, etc. – can overwhelm a defendant unless his public defender has the time, tools and training to conduct independent investigations.  Because of this “machinery,” the St. Louis prosecutor is simply incorrect that the workload of prosecutors and defense attorneys can be measured directly in an apples-to-apples comparison.  Prosecutors have the full array of law enforcement to help in the preparation of cases, while public defense providers must independently investigate the alleged crime on their own.  The different roles prosecutors and public defense lawyers play in the maintenance of our criminal justice system necessitate that their individual workloads be measured separately.  Here’s hoping that prosecutors heed the call of the state supreme court to work together to resolve to finally make Gideon’s promise a reality in Missouri.