An Open Letter to the Next Missouri Governor

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Pleading the Sixth: On August 2, 2016 the Missouri State Public Defender appointed the Governor to represent an indigent defendant. Whereas, the sitting Governor is term-limited out, the 6AC turns to the two major party nominees with an overview of Missouri’s longstanding constitutional crisis.

icon_MODear Mr. Greitens and Mr. Koster,

On the very day that you both secured your respective party’s nomination for Governor, the Missouri State Public Defender, Michael Barrett, invoked his inherent powers under Mo. Rev. Stat. 600.042.1(5) to appoint your current executive, Gov. Jay Nixon, to defend an indigent accused in a criminal prosecution.

The authority to “[d]elegate the legal representation of any person to any member of the state bar of Missouri” should be seldom used. Missouri, like all states, is obligated under Sixth Amendment case law to not just provide lawyers to poor defendants, but to appoint attorneys that can effectively discharge the obligations of counsel for the accused. That is, just as you would not go to a dermatologist when a heart surgeon is required (despite both being professionally licensed medical providers), not every member of the bar possesses all the requisite training, qualifications, and skills necessary to competently handle a criminal matter, whether that attorney be the most highly-regarded real estate attorney or a sitting Governor.

Therefore, the appointment is seen more as an avenue of last resort to call attention to the understaffing of the public defender system. Indeed, Mr. Barrett writes in the letter to Governor Nixon that he is making the appointment because it “strikes me that I should begin with the one attorney in the state who not only created the problem, but is in a unique position to address it.”

In my experience, however, there is little value to indigent defense reform efforts in assessing blame to a single individual for a constitutional crisis decades in the making and likely resulting from decisions of well-intentioned policymakers of both major political parties in all three branches of government. Rather, recent experiences in states such as Michigan, Idaho, and Utah show that change is possible only when criminal justice stakeholders and policymakers come together to review how and why the right to counsel system evolved in the way that it did. Because it will fall to one of the two of you to remedy Missouri’s right to counsel deficiencies, I present the following information for your consideration.

Understanding Missouri’s long-standing right to counsel deficiencies

In Missouri, the right to counsel was the law of the land even before statehood, with courts appointing attorneys under your 1818 territorial laws (Digest of the Laws of the Missouri Territory, 1818, Crimes and Misdemeanors, § 35). Though Missouri has a storied early history in regard to appointing lawyers to the indigent accused, it was one of the last states to require the payment of attorneys for their services. As opposed to a state like Nevada that began compensating attorneys for indigent defense work as early as 1877, Missouri was still conscripting private lawyers to provide services even after the U.S. Supreme Court determined the right to counsel was a state responsibility under the Fourteenth Amendment (Gideon v. Wainwright, 1963).

In 1971, the Missouri Supreme Court held in State v. Green that it would no longer “compel the attorneys of Missouri to discharge alone ‘a duty which constitutionally is the burden of the State.’” And, though the Missouri Legislature reacted by establishing the Missouri State Public Defender system the following year, full funding was not forthcoming. This caused private lawyers to continue to bear the majority of the state’s Sixth Amendment obligations without remuneration.

As the public defense system expanded slowly over the next few years, the question of indigent defense funding came back before the Missouri Supreme Court in 1981. At question in State ex rel. Wolff v. Ruddy was a statute (Mo. Rev. Stat. § 600.160) providing that “[u]nder no circumstances” may the appropriation for the provision of counsel ever exceed $5 million (not that the Legislature ever matched that level of spending anyway). The Missouri Supreme Court called the legislative action “less than resolute,” and proclaimed firmly that in regard to indigent defense funding, the “cupboard is bare.”

However, the Court went on to state that it did not have the authority to compel attorney compensation because of separation of powers issues, but that it would allow members of the Missouri Bar to be compelled to provide representation with some new regulations attached. This is a very different conclusion than other state courts would reach. (For a list of state court decisions requiring adequate compensation of appointed counsel, see the 6AC report Justice Shortchanged starting at page 6, here).

Whereas the Missouri Supreme Court could have chosen, for example, to halt prosecutions of defendants that lacked adequately resourced and competent attorneys, without running into separations of powers issues, the Court decided to prioritize the “continued operation of the criminal justice system” instead. The continued conscription of lawyers empowered the Legislature to continue to underfund Sixth Amendment representation (even as the state public defender system continued to expand).

Indeed, as much as the recent media storm has decried Missouri’s ranking at or near the bottom in per capita indigent defense spending among the fifty states, such ranking is anything but “new.” In 1984, the U.S. Department of Justice, Bureau of Justice Statistics (DOJ-BJS) released the first comprehensive review of the right to counsel in America. Missouri ranked 48th out of the 50 states in indigent defense cost per capita spending. Tennessee ranked 50th in that survey, but now spends almost three times more ($108,743,348) than Missouri ($37,704,654), despite having roughly the same size population.

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In 1988, DOJ-BJS updated their survey. This time Missouri dropped to 49th place on indigent defense cost per capita (Mississippi was 50th). The next DOJ-BJS report came in 1999, with DOJ-BJS comparing only those states that funded indigent defense services at the state level. “In terms of per capita spending, Alaska spent the most ($19) and Missouri the least ($5),” the report stated.

In 2010, DOJ-BJS released a report on state public defender programs, showing that between 1999 and 2007 Missouri’s indigent defense caseload increased by 13% while its right to counsel expenditures decreased by 12%. Unlike other governmental agencies that can, for example, refrain from purchasing a new vehicle in response to budget cuts, public defenders cannot reduce the number of defendants they must represent, and their budgets go predominantly to personnel. This means that the 12% funding decrease resulted in a significant cut in staff. The DOJ-BJS report shows that between 1999 and 2007, the Missouri public defense system lost 40 attorneys, down from 337 in 1999 to 297 in 2007. (To see how Missouri prosecutors misinterpreted this report, click here)

The DOJ-BJS conclusions were confirmed by the American Bar Association (ABA) later that same year when the ABA published a comprehensive report of FY 2008 indigent defense expenditures for all 50 states. Missouri ranked 49th (again, only ahead of Mississippi).

Over the past month, the 6AC undertook our own survey of FY 2015 indigent defense expenditures in the 35 comparable states where information is readily available. (Mississippi is not included in this grouping. The type of comprehensive surveying done in the past by the DOJ-BJS and the ABA is resource-intensive. For example, one would need to call 93 separate counties in Nebraska to obtain complete indigent defense spending data). Missouri ranks dead last in indigent defense per capita spending.

In FY 2015, Missouri spent $6.20 per person on right to counsel services, an increase of only $1.20 per citizen since 1999. For an understanding of what that means, consider the following context. The U.S. Department of Justice (DOJ) has stated on numerous occasions that right to counsel services in America “exist in a state of crisis.” The method through which the indigent accused is provided the constitutional right to an attorney is described alternatively in DOJ speeches as, “inadequate,” “broken,” and “unjust,” with “devastating” consequences to both the defendant and to society as a whole. The situation is “unacceptable,” “unconscionable” “morally untenable,” “economically unsustainable,” and “unworthy of a legal system that stands as an example to all the world.”

Given these DOJ opinions on the deplorable state of the right to counsel in America, Missouri would need to approximately triple its indigent defense spending to simply reach the abysmal national mean on per capita spending of $18.41. (That is, Missouri would need an increase of $73.2 million, to get to a total spending figure of a little more than $112 million) Instead, Missouri taxpayers are now footing the bill for a lawsuit over whether Governor Nixon improperly withheld $3.5 million from the State Public Defender. Though every little bit may help, it is noted that even had the additional money been released, Missouri would still rank last on the 6AC cost-per-capita survey.

One more bit of context: media outlets are also aflutter discussing the indigent defense crisis in Louisiana, where public defenders are refusing new cases and bar members are being conscripted into service (read the 6AC take on Louisiana here). Missouri needs to more than double its indigent defense expenditure to reach Louisiana’s paltry level (Louisiana cost per capita is $15.07).

Conclusion

Our nation’s founders created the Bill of Rights to protect individuals against the tyranny of government. However, the independence to speak one’s mind, or to join others in protest, or to worship one’s faith unimpeded, or to bear arms to protect one’s family and property, among our other cherished freedoms, can only be practiced if a citizen first has the individual right to defend his life and liberty. The Sixth Amendment gives a person the tool – a lawyer – to defend one’s liberty against undue incarceration by the state.

In remedying these issues, the answer is not simply to throw money at the problem. When the right to counsel was clarified to include jailable misdemeanor offenses, the U.S. Supreme Court suggested in Argersinger v. Hamlin that states could deal with the anticipated costs by removing minor offenses out of the formal criminal justice system. State and local policymakers can, for instance, work together to increase the use of diversion that can remove juvenile and adult defendants out of the formal criminal justice system and get them help with things like addiction or battle-incurred injuries to veterans. Similarly, lawmakers can change low-level, non-serious crimes to citations, in which the offender is given a ticket to pay a fine rather than being threatened with jail time, which in turn triggers the constitutional right to counsel. Without the threat of jail, the cost of public defenders never comes into play.

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