Missouri’s chronic right to counsel problems revisited

BY Jon Mosher on Wednesday, February 9, 2011 at 1:15 PM

In a five-part spotlight series published on February 5, 2011, the Springfield News-Leader has focused once more on the state of Missouri’s chronic failure to provide a meaningful right to counsel as required under the Constitution.  Like all states, Missouri must provide counsel at public expense to those facing criminal charges who cannot otherwise afford to hire their own attorney.  The state intends for all right to counsel services to be provided to all indigent defendants through its statewide public defender system, but there are more people who require the public defender system’s services than it is set up to provide for.  Instead, the Office of the Missouri Public Defender has only enough resources to provide constitutionally effective representation to a percentage of those who are entitled to public representation.  

The Missouri Supreme Court considered this problem in State ex rel Missouri v. Pratte, decided December 8, 2009.  The Court explained the structure of the current system of providing public defense.  The Public Defender Commission’s budget is meant to provide attorneys for all indigent criminal defendants, with some clients represented by full-time public defenders (about 80%) and some represented by private attorneys on contract (about 20%).  The problem is that the total number of people needing services has grown too large.  In the Court’s words: “The problem that the [state public defender] commission confronts is that the resources provided for indigent defense are inadequate.  The statewide public defender system, under rules adopted by the commission, had the capacity last fiscal year to spend only 7.7 hours per case, including trial, appellate and capital cases.”  And: “The state’s vast increases in criminal prosecutions have not included commensurately increasing resources for the public defender [system].”  So, while every indigent defendant must receive an attorney, the overarching question before the Pratte Court was whether the Public Defender Commission or the judges are responsible for deciding which clients will receive services through the budget of the Public Defender Commission and which clients will have to receive services through some other budget.  The Court held that “[w]hen current state funding is inadequate to provide the effective representation to all of Missouri’s indigent defendants that the United States and Missouri constitutions require, the commission’s rules present an approach to dealing with the situation.”  And those rules require the public defender to notify the courts that they have “limited availability” to accept new cases when they have reached certain numbers of cases at a given time.   

The Missouri Supreme Court was well aware that this did not resolve the question of how constitutionally required representation will be provided to the rest of the indigent defendants in Missouri.  “The challenge for the public defender, judges and prosecutors is to find a way to assure that all defendants who are represented by the public defender’s office will be ensured effective representation and that other indigent defendants will be represented effectively as well.”  As the News-Leader notes, litigation regarding the state’s obligation to provide a meaningful right to counsel to all indigent defendants is once again before Supreme Court of Missouri in State ex rel Missouri et al v. Waters et al.

Following the Pratte decision, branch public defender offices tried to follow the Court’s instructions and the Commission’s rules, declaring unavailability on behalf of new clients once they had reached the prescribed maximum number of cases.  Trial judges have, in some cases, appointed the public defense system anyway.  It is these rulings that the Missouri Public Defender Commission has appealed to the Supreme Court and that are being considered in State ex rel Missouri et al v. Waters et al.  The News-Leader article about one potential client illuminates the effects on the human beings who are waiting for Missouri to resolve how it will provide counsel to them.  (The News-Leader provided background on that case in an earlier story.)

Like the state Supreme Court, Missouri’s Governor has also recognized that the problem is not merely one of limiting the number of cases handled by the Public Defender Commission system, but rather is one of how to provide counsel to all indigent defendants.  In 2009, the state’s General Assembly passed a bill that would in essence have adopted the Commission’s rules on caseload limits and made those limits state law.  Governor Jay Nixon vetoed that bill, saying: “Those cases still exist, those defendants will still be waiting for their day in court, and those crime victims will continue to await justice.”  As the News-Leader explains, in 2011 the only legislative solutions being proposed are to abolish the public defender system entirely (a suggestion no one seems to be taking seriously) or to live with the problem until there is more money to throw at it (a constitutionally untenable situation).

Prosecutors correctly point out that the state’s entire criminal justice system has long been overloaded.  One anecdote demonstrates just how long-standing the state’s workload and resource challenges are: “The Springfield area's first public defender -- Ty Gaither -- quit in 1983 before reaching nine months in office.  He cited too few staff and not enough funding.”

The answer to these chronic problems cannot be to simply throw money at them.  The need to make efficient use of limited taxpayer dollars means that state policymakers have to prioritize, and they should focus their resources on more serious cases by removing non-violent, low level felonies and misdemeanors from the formal criminal justice system through diversion, mediation and/or reclassification of crimes to infractions, where it is prudent and safe to do so.  As South Carolina demonstrated last year, only by shrinking the size of government through a reduction in the entire criminal justice workload can we lower costs for taxpayers and ensure public safety without also sacrificing the core values of our democracy.  South Carolina is not alone in taking this approach.  The Public Safety Performance Project of the Pew Center on the States is working with 15 states to help them achieve better returns on their public safety investments.  This approach to lessening the strain on criminal justice system budgets has support from both the left and the right, as demonstrated by the newly launched conservative Right on Crime Coalition.  Missouri policymakers should follow these examples.

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