Public defense across the West suffers deep-rooted, decades-old problems. States have two solutions to consider: dole out more cash or shrink the criminal justice system.
Editor's note: This story is part of 'Broken Defense,' an investigative series from Lee Enterprises. More details about this project can be found at the bottom of this article.
Neither option seems particularly savory to many. A public defense system overhaul is expensive, particularly for smaller, resource-strapped counties. Some states controlled by conservative politicians “want more people locked up,” said University of Wyoming professor Daniel Fetsco, who has worked as both a prosecutor and public defender.
“The legal profession is starting to come to terms with this problem,” Hanlon said. “We're gonna need the governors and state legislators … and Congress [to] step up and address this problem. This is a national embarrassment.” Hanlon said those standards are based on “nothing.” A few lawyers scribbled them on a cocktail napkin in the 70s, he said.
Jessica Kampfe, Oregon Office of Public Defense Services executive director, said national caseload maximums would be “hugely helpful” for Oregon’s dire public defender shortage. The new standards will offer a reference tool to show lawmakers that public defender caseloads go far beyond the acceptable limit, she said.
The new standards could work the same on a national scale. Hanlon assembled his old law firm Holland & Knight, consulting firm Moss Adams, research organization the JFA Institute and civil rights organizations to implement and enforce the standards. The team plans to file lawsuits that demand minor case dismissals to help decrease public defender caseloads and that states fix public defense systems within five years.
New Mexico’s public defender office recently tapped Moss Adams and the JFA Institute to help close the state’s attorney shortage. New Mexico would have 600 of 720 needed attorneys by 2028 if it follows the plan’s suggestions, improving the current gap. DecriminalizationIdaho’s ACLU backs a similar decriminalization effort for its state, legal director Aadika Singh said. Offenses that could be removed or made a lesser charge to lighten attorney workloads include alcohol age violations, drug possession, gambling, prostitution, disturbing the peace, trespassing, littering, graffiti and driving with a suspended license, Singh said.
Lassen County District Attorney Susan Melyssah Rios said she can’t overlook minor crimes in California. Property damage victims, for example, deserve restitution, she said. “So my caseload looks like I got 23 misdemeanors, and it’s one guy who’s just existing,” his court-appointed attorney Caitlin Boland Aarab said.
“If we’re going to put resources into prosecuting people, we should put similar resources into defending that,” Lynch said. Weber and other Idaho lawmakers will develop a statewide model for public defense in the upcoming session. Oregon lawmakers last spring gathered attorneys and judges to develop public defense crisis solutions.
Montana Gov. Greg Gianforte, a Republican, has proposed a 22% budget increase for the public defender office. Legislators have grown more responsive to the public defender office’s appeals since the agency illustrated its issues in data presentations — it’s the difference between hearing the barn is on fire and seeing it for themselves.
More people who need public defenders get them when counties operate their own office, according to a June 2019 study of Texas’s system. The quality of representation also improves, Burkhart said.Locally-controlled offices are not a cure-all, Burkhart said, but benefits, salary and student loan forgiveness can attract public defenders to rural areas. A federal program allows forgiveness for government employees. Private attorneys contracted for public defense work are not eligible.
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