by Douglas A. Copeland

Under our Constitution, if a person is charged with a crime that could result in a loss of liberty, that person is entitled to adequate legal representation in those criminal proceedings. Seems pretty simple - if there is a chance you could go to jail, you are entitled to the benefit of the services of an attorney. That works fine if you can afford one, but becomes more complicated if you cannot. How does our society go about satisfying that Constitutional obligation for indigent criminal defendants?

A public defender system was established in Missouri in 1972 to provide legal counsel for criminal defendants found to be indigent, or at least unable to reasonably afford private counsel. In my mind, that act alone put us significantly ahead of other states that to this day continue to rely on a system based upon circuit by circuit public defenders. In 1976, the Public Defender Commission was created. In 1982, the Office of State Public Defender came into being by legislative action. By 1987, the public defender system employed 233 people, and had a total of 23 offices across the state, but still relied on services provided under contracts with private attorneys to cover indigent criminal defense in the more rural areas. But by the late 1980s and early 1990s Missouri's public defender system was already in trouble. At that point The Missouri Bar and others stepped forward, with a result of increased funding for the public defender, elimination of routine private contract services, and a reorganization that created specialized divisions within the system - the Capital Division, the Appellate/PCR Division and the Trial Division. Sensing that all was well, the bar stepped away and the State Public Defender and the commission went about providing the services for which they were created.

A bit more than a decade later, we find that all is not well with Missouri's public defender system. We find that it is a system in crisis. In the spring of 2004 the leaders of The Missouri Bar were alerted to that crisis, and immediately set out to once again become engaged in supporting the public defender system. After all, that is what we are supposed to be about - the administration of justice. The criminal justice system cannot continue to function without all three of its pillars functioning - the courts, the prosecutors and the defenders. We found that one of those pillars, the most fragile one, seems about to crumble. I call the public defenders the most fragile because there is little if any "safety valve" when that system becomes overloaded. When prosecutors become overloaded, they have the ability, within reason, to simply choose not to prosecute certain offenses, or to find ways to streamline the process by plea bargaining. Likewise, courts have some latitude to spread out their dockets to cover an overload, and if the speedy trial rule comes into play, the ultimate safety valve exists - the defendant goes free. And if society doesn't like this, there is a simple solution - increase funding to hire more prosecutors or increase the number of courts to handle the overload of criminal cases. It's an appeal for law and order, and it plays pretty well.

On the other hand, where is the safety valve for an overloaded public defender? By definition, the public defender doesn't get to pick and choose. If a criminal defendant faces the possibility of jail time and is indigent, the public defender must take the case. A response of "I can't take another case," or "I am not qualified to handle this case," simply doesn't satisfy what the Constitution requires in terms of equal protection and due process. Neither does plea bargaining a defendant that may be innocent. And in case I need to remind you, the plea of "we need more money to defend poor people accused of criminal behavior" just doesn't have the same appeal that the prosecutors and courts can muster. I realize that this is an oversimplification, and that prosecutors and the courts are not without their own funding issues, but I do think the problems facing the public defender system are rather unique.

When the bar started to look at Missouri's public defender system, the suggestion was made that there simply were too many cases to handle for the resources made available to the system by the State. If you have X number of lawyers and Y number of cases, it simply doesn't work. While there is certainly a great deal of truth to that assertion, what I think we have found is that, as is usually the case, it is a bit more complex than that. For example, it would appear that the State Public Defender and the commission have used the only hint of a safety valve available to them, namely salaries. If resources are limited and workload is increasing, you cannot afford to increase salaries or hire more experienced, and more expensive, attorneys. You have to hope that you can keep your people without increasing salaries and at the same time increase workload - not a promising option, but it is a way to survive. Of course, under those circumstances, hiring new attorneys is rather problematic, not to mention the issues of retention and working conditions.

So where to begin? We were convinced that we needed to find both short-term and long-term solutions. Given the economic climate of our state and the political realities, we realized that immediate funding increases were not possible in 2005. But the need was felt to give some hope to the public defenders in the trenches. What the bar did was to appeal to you, our members, to volunteer immediately, but for the short term, to take cases from the public defender offices throughout the state to ease the load. No one presumed that this would solve the problem, and it certainly was no long-term solution, but the hope was that we might encourage the front-line public defenders, and immediately show them that their profession supported them and understood the importance of their work. Given the urgent need and the temporary nature of the volunteer program, it was determined that volunteers would only handle vehicular cases, such as driving while suspended, that had the potential for jail time. Thanks to those volunteers, the public defenders have felt that support.

In search of long-term substantive solutions, the bar created a task force to study the problem and propose and promote solutions. The concept was to get everyone to the table - public defenders, prosecutors, judges, legislators, private counsel, and the like - to examine the system and come to some consensus as to what needed to be done. That task force first met in July of 2005, and one of its first acts to was engage the services of an independent consultant to analyze Missouri's public defender system. We wanted an objective analysis, and we wanted a comparison with public defender systems in other parts of the country. The State Public Defender agreed to put all issues on the table, and to open his office up for such an analysis and the recommendations that might follow. The Spangenberg Group, the preeminent national firm in the area of indigent criminal defense, was engaged and set about the task. The report that came out of that examination starkly confirmed the cry for help from the public defender system. The system is truly in a state of crisis, on the brink of collapse. Fortunately, good news came out of that report as well - we had a very good public defender system, and we had a corps of very dedicated public defenders.

Perhaps the portion of that report that provided the best picture of our public defender system is the comparison with other public defender programs elsewhere in the U.S. It found that Missouri has the lowest per capita expenditure of all statewide public defender systems, that Missouri has the lowest per capita annual indigent defense expenditure of all the southern states (with the exception of Mississippi, for which data was not available), and that no other statewide indigent defense program has failed to receive any additional appropriations in the last five fiscal years. Prior to 2001, funding for the PD system and full-time employees increased annually, keeping pace with the ever-increasing caseload. However, beginning in 2000 and continuing through today, both the funding and the full-time employees have remained virtually stagnant, while the caseload has continued its steady increase. In simple terms, in a system with no discretion as to the work it is responsible to perform, resources must match that workload. Six years ago, that matching ended, and such a system simply cannot continue in that fashion.

So what does that mean? What is happening? Most likely, a large number of indigent criminal defendants are not receiving adequate representation. New public defenders are being well-trained and then leaving the system after a few years to obtain better paying jobs - on the salaries available they simply cannot support themselves or their families, especially if they have significant law school debt. As more experienced attorneys leave the public defender system, less and less experienced attorneys are having to handle more and more serious cases for which they are unprepared, and there are few if any more senior attorneys with time available to provide help and advice.

At a recent meeting of The Missouri Bar's Public Defender Task Force, it was the unanimous consensus of those present that additional funding of the public defender system over a three-year period was required, and that the minimum amount for the next fiscal year should be $2 million. Those funds would be used to move toward bringing public defender salaries up to a market level, especially in the lower level positions. At the same time, the task force is moving forward with examining the recommendations of the Spangenberg Report so that a multi-faceted approach can be offered to the legislature, one not simply dependent on additional funding. One of those specific suggestions is to consider reclassification of certain minor offenses to eliminate the potential for loss of liberty. If there is no jail time possible, the case is no longer the responsibility of the public defender. If jail time is rarely if ever actually imposed for those offenses, is it a good use of public defender resources?

The task force is also dedicated to finding a way to avoid this crisis in the future. The public defender system, and the attorneys who staff it, are much too valuable a resource to the criminal justice system to allow them to go through this type of turmoil and crisis on a cyclical basis. The organized bar, the courts, the legislature and the people of Missouri need to be more in tune with the needs of the system. We seem to have a great opportunity to accomplish that task now, as all those constituencies are becoming aware of this crisis and seem to be committed to creating a lasting solution, and allowing the public defenders in Missouri to concentrate on the important work before them - providing perhaps the most vulnerable people in our state with adequate legal representation at a time when they stand to lose what is perhaps the most important human condition - their liberty. I am tremendously grateful to all the men and women who are working toward that end. Someday soon the "meet 'em and plead 'em" reality of the Missouri public defender system must be eliminated.