Pleading the Sixth: (Part 2 of a two-part series.) On July 31, 2012, the Missouri Supreme Court ruled that the state public defender commission has the authority to declare unavailability due to case overload. In response, the Missouri Association of Prosecuting Attorneys issued a press statement on August 3rd that the “public defender system is not in a caseload crisis” and used a U.S. Department of Justice report to support their position. The Sixth Amendment Center offers a synopsis of the Missouri court’s ruling in a companion post, and here we analyze the same DOJ report to refute the prosecutors’ position.
In the wake of the state supreme court decision allowing the Missouri State Public Defender (MSPD) to decline new assignments in the face of excessive caseloads (read about the case here), the Missouri Association of Prosecuting Attorneys (MAPA) issued a press statement on August 3, 2012 disagreeing with the decision and declaring that the “public defender system is not in a caseload crisis.” Relying on the United States Department of Justice, Bureau of Justice Statistics report State Public Defender Programs, 2007, the prosecutors support their conclusion by pointing to the fact that MSPD compares favorably to 21 other state public defender systems under the following five criteria: a) Total number of public defender offices; b) total number of assistant public defenders; c) total number of litigating attorneys; d) total expenditures; and, e) total number of cases. The Sixth Amendment Center read the same document and reached very different conclusions.
The MAPA argument (Part I: The issues are moot)
Because the defendant (Jared Blacksher), who was appointed MSPD to represent him in his case despite their unavailability due to excessive caseloads, eventually accepted a plea deal prior to the Missouri Supreme Court’s issuing a final decision on the matter, MAPA believes that the Court erred in not finding the issues at stake moot. However, the Missouri Supreme Court addressed those issues in their opinion, declaring that the “public interest exception to mootness applies whenever a case presents an issue that (1) is of general public interest and importance, (2) will recur and (3) will evade appellate review in future live controversies.” The public defender caseload crisis obviously fulfills the first two of these requirements. In response to the third criteria the Court noted that a “criminal appeal simply does not provide a mechanism for review of the caseload protocol, and the issue in any post-conviction proceeding centers on whether the defendant received a fair trial, not on the broader Sixth Amendment right to counsel that is at issue when considering whether counsel was appointed for all critical stages of the proceeding.”
The Court further explained:
To the contrary, as set out in detail above, the United States Supreme Court has explained that ‘[i]t is well settled’ that the Sixth Amendment right to counsel is broader than the question of whether a court must retrospectively set aside a judgment due to ineffective assistance of counsel. The constitutional right to effective counsel applies to all critical stages of the proceeding; it is a prospective right to have counsel’s advice during the proceeding and is not merely a retrospective right to have a verdict or plea set aside if one can prove that the absence of competent counsel affected the proceeding.
The MAPA argument (Part II: There is no public defender caseload crisis)
The MAPA press release relies exclusively on a study conducted by the U.S. Department of Justice to dispute the existence of a workload crisis. They state that compared to the “other 21 states with state-funded public defender systems, the U.S. Department of Justice study revealed that: Missouri has the most offices; Missouri ranks 4th in the total number of Assistant Public Defenders; Missouri ranks 8th in total number of full-time litigating attorneys; Missouri ranks 10th in total expenditures as a system; and Missouri ranks 9th in the total number of cases.”
The 2007 Bureau of Justice Statistic’s (BJS) report does not assess any other right to counsel delivery systems other than those that provide services through full-time staffed offices. What this means is that a state that provides services primarily through any other method (such as the contract or assigned counsel models) was excluded from the survey. So, for example, the state-funded, state-administered Oregon Public Defense Commission was excluded for comparison purposes in the BJS study for no other reason than that they provide services through a series of contracts with individual attorneys, consortia of attorneys, law firms, and private non-profit defender organizations. The American Bar Association reports that Oregon spent nearly three times as much as Missouri on indigent defense in 2008 (Oregon: $97,992,306; Missouri: $34,596,651) while having a state population substantially less than Missouri (Oregon: 3,790,060; Missouri: 5,911,605). Similarly, the state of West Virginia funds all indigent defense services, though representation is decentralized and provided on the local level by either public defender offices or (more frequently) by private attorneys paid hourly rates. The same ABA report shows that West Virginia outspent Missouri (West Virginia: $36,975,545) despite a population approximately a third the size of Missouri. But those facts simply do not appear anywhere in the BJS report and thus undermines the Missouri prosecutors’ position.
Even still, the prosecutors’ comparison points simply are not an appropriate measure of quality for defender services. MAPA’s first point is that Missouri has more public defender offices than any other state. Yet, the vast majority of states with state-funded public defender offices are either geographically small (e.g., Connecticut, Delaware, Hawaii, Massachusetts, New Hampshire, New Jersey, Rhode Island, and Vermont), or have comparatively sparse populations (Alaska, Arkansas, Iowa, Montana, North Dakota, and, Wyoming) and thus are states that are more efficiently served with a more limited number of offices. The fact that Missouri has more offices than, for example, Rhode Island tells one nothing about whether either office is overwhelmed by excessive caseloads.
Similarly, the fact that Missouri ranks 4th in total number of assistant attorneys and ranks 8th in number of full-time litigating attorneys tells us very little about quality. As with the analysis of the number of offices (above), one would expect that Hawaii, for example, would have less full-time litigating attorneys then Missouri (HI: 93; MO: 261). When you remove the nine states that are not comparable because of the states’ geographic size and/or population density, only one of the remaining seven comparable states has fewer attorneys than Missouri (Maryland: 508 attorneys; Minnesota: 371; Kentucky: 327; Colorado: 305; Virginia: 305; Wisconsin 294; Missouri: 261; and, New Mexico: 223).
Even then, the comparison is not fair because the state of New Mexico provides indigent defense services through a combination of staffed public defenders (in its urban centers, like Albuquerque and Santa Fe) and contracts with private attorneys (in the vast majority of the state’s more rural counties). Because the MSPD relies on its staffed offices for conflict representation in neighboring circuits, the comparisons are further skewed in a state like Colorado that has an entirely separate assigned counsel system operating under a separate indigent defense commission from the primary public defender system to handle all conflict cases across the state. So, Missouri has essentially nothing in common with any of its “comparison” states.
It is interesting that the prosecutors also look to total number of “assistant attorneys” to highlight what they consider to be Missouri’s lack of a caseload crisis. In the BJS study, the difference in “full-time litigating attorneys” and “assistant attorneys” is nothing more than a subtraction problem in which supervisory attorneys are taken out of the equation (that is, “full-time litigating attorneys” includes supervisors in the count while the “assistant attorneys” category does not). Therefore, the fact that Missouri’s ranking is higher for “assistant attorneys” than for “litigating attorneys” is evidence that other states simply have opted to hire more supervisory attorneys than Missouri. (This suggests that other states are further than Missouri toward compliance with the 10th of the ABA’s Ten Principles requirement that attorney and non-attorney staff have adequate supervision.)
The prosecutors then claim that, because Missouri ranks 10th in “indigent defense expenditures” of the 22 states that use the state public defender office model to some extent, it is in the median of that sample and therefore no caseload crisis exists. Overlooking the obvious fact that all state-funded public defender systems could be mired in excessive caseloads and therefore one’s relative ranking amongst the states tells you nothing about a particular state, one would still expect, for example, Delaware to have a lower public defender expenditure than Missouri based solely on size and population density.
A more equitable comparison is to look at the public defense expenditure per capita rate (expenditure / population = cost per capita). In comparing the 22 state-funded public defender systems, Missouri ranks 20th in public defender cost per capita.[ws_table id=”1″]
But, the above table simply reflects “public defender” cost per capita, rather than total indigent defense cost per capita. The two states that rank below Missouri (North Dakota and Virginia) do not use the public defender format to the same extent as Missouri. Both states make use of the contract and assigned counsel models in addition to public defender offices, and so those expenditures are not counted here, which explains why they rank below Missouri in this comparison.
Returning again to the ABA expenditure report, North Dakota expended $5 million on total indigent defense in 2008, while Virginia expended nearly $97 million. Dividing these expenditures by the state population reveals that both North Dakota ($7.79) and Virginia ($12.47) have significantly higher cost per capita figures in that year than Missouri ($5.85 for FY2008). In fact, if one uses the figures in the ABA report to calculate the cost per capita of every state – regardless of whether they rely on state or county funding, regardless of whether they are organized at the state or county level, and regardless of the whether of the mode of representation employed (e.g. public versus private attorneys) — every state has a higher indigent defense cost per capita rate than Missouri ($5.85) with the exception of Mississippi ($5.06).
The Missouri prosecutors rest their final argument on the fact that Missouri ranks 9th in total number of cases. As has been shown above, “total number” of any indigent defense comparative is not valid. One would expect Missouri to have more cases than Vermont. What the prosecutors neglect to mention is that – according to the BJS report – the number of cases assigned to Missouri’s public defenders increased from 73,738 in FY1999 to 83,160 in FY2007 (a 13% increase) while the public defender expenditure decreased by 12 percent during the same time period when adjusting for inflation (from $38,944 in FY99 to $34,138 in FY2007). The problem is, perhaps, even worse as the assigned caseload numbers in the BJS report do not jive with the numbers in the MSPD annual reports. The MSPD annual report for 2007 indicates that the actual number of cases opened in 2007 was actually higher (approximately 87,500).
Interestingly, the BJS report does try to quantify the number of new attorneys needed in each state-funded public defender office based upon prevailing indigent defense workload standards. Unfortunately, the Missouri state public defender did not provide a break down on total cases by case type in time to allow BJS to compare Missouri to the other state-funded systems. However, the MSPD 2007 annual report referenced above shows that they handled 35,444 homicide and felony cases, 27,816 misdemeanors, 3380 juvenile-related cases, 743 appeals, 19,157 probation revocations, 828 post-conviction motions, and 129 “other” cases. Using the same calculations that BJS applied to these numbers reveal that Missouri operated in 2007 with 261 attorneys when, in fact, they needed 403 attorneys to appropriately deliver effective representation.
As noted in our recent assessment of the Government Accounting Office (GAO) report on indigent defense (read our assessment of that report, here), well-intentioned people can reach invalid conclusions based on incorrect assumptions about how Sixth Amendment right to counsel services are provided in our country. We believe that to be the case with the MAPA position here as well.
Finally, MAPA notes that prosecutors and judges also must deal with the current financial struggles present in Missouri. And, though that is true, we note that there is not a constitutional mandate requiring competent prosecutions as there is requiring effective defense representation. So even as we agree with MAPA that crime victims deserve speedy resolution of cases, we caution that emphasizing speed at the expense of due process undermines our courts’ ability to reach just verdicts. Or, as the U.S. Supreme Court declared in Powell v. Alabama, 287 U.S. 45 (1932): “The prompt disposition of criminal cases is to be commended and encouraged. But, in reaching that result, a defendant, charged with a serious crime, must not be stripped of his right to have sufficient time to advise with counsel and prepare his defense. To do that is not to proceed promptly in the calm spirit of regulated justice, but to go forward with the haste of the mob.”