A lack of independence in Georgia’s public defense system

BY Jon Mosher on Wednesday, May 4, 2011 at 11:53 AM

On May 4, 2011, the Associated Press reported new legislation was signed into law by Governor Nathan Deal altering the composition of the Georgia Public Defender Standards Council.  The measure replaces “the current 15-member Georgia Public Defender Standards Council with nine new appointees tapped by the governor, the lieutenant governor and the House speaker. It also gives the director more power over whom the system hires.”

This composition of Georgia’s public defense oversight board fails to meet national standards. The very first of the ABA’s Ten Principles of a Public Defense Delivery System addresses the importance of independence of indigent defense systems. Independence is protected through limiting judicial oversight and political interference in the day-to-day administration of the system. Independent oversight boards should be composed of members appointed by diverse authorities, so that no single official or political party has unchecked power over the indigent defense function.  The bill that passed both the Georgia House and Senate gives the Governor five appointments to the nine member board, placing majority control in one branch of government.  This is in direct violation of Guideline 2.10(b) of the National Study Commission’s Guidelines for Legal Defense Services in the United States (1976), cited by ABA Principle 1, which states: “No single branch of government should have a majority of votes on the Commission.” 

As the AP article notes in its conclusion, this “shakeup comes after years of lagging support” for the board and its chronic underfunding ever since its creation by the legislature in 2003. Our July 12, 2010 Gideon Alert documents the ongoing devolution of this system, both in structure and in funding.  While consolidating more decision-making ability with the GSPDC director at the state-level is a positive change, all future decisions the director makes will necessarily be subject to unwarranted political calculations. This is because the director will now be appointed by the Governor*.  As the United States Supreme Court observed more than thirty years ago, in Branti v. Finkel, the employment of a “public defender cannot properly be conditioned upon his allegiance to the political party in control ….  His principal responsibility is to serve the undivided interests of his client.  Indeed, an indispensable element of the effective performance of his responsibilities is the ability to act independently of the government and to oppose it in adversary litigation.”  

Without independence from political interference and a corresponding influx of the resources necessary for the state’s right to counsel systems to meet the needs of the clients they are obliged to represent, this measure represents further devolution of Georgia’s indigent defense system.

* Our original posting stated the GPDSC "director is chosen by the oversight board, a majority of whose members will now be appointed by the Governor." This is incorrect, and we have edited the text to reflect this.

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