Pleading the Sixth: On April 5, 2013, the Governor of New Mexico signed a public defender commission bill into law signaling the end of the political practices that led to instability in the chief public defender position. Will this day mark the end of undue political interference of the right to counsel in that state? The Sixth Amendment Center analyzes the law for answers.
On April 5, 2013, Governor Susana Martinez signed into law the public defender commission bill (HB 483) that the voters of New Mexico had demanded when they passed a constitutional amendment requiring the independence of the defense function on November 6, 2012. Independence of the defense function, as required by the American Bar Association Ten Principles of a Public Defense Delivery Office, was needed in New Mexico because the chief public defender was a direct gubernatorial appointee prior to the new law. In New Mexico, the governor had the authority to appoint or terminate the chief public defender, of any of the supervising attorneys within the public defender office, for any reason at any time. What this means is that there was a revolving door in the public defender office with each new administration and line attorneys could simply wait out any demands by the chief public defender to reform practices. (For more on the past independence issues in New Mexico, click here.)
Commentary to ABA Principle 1 specifically recommends that in order to “safeguard independence and to promote the efficiency and quality of services, a nonpartisan board should oversee defender, assigned counsel, or contract systems.” (For more on the preeminent need for independence of the defense function, click here).
The new law meets this principle through the creation of an eleven-member public defender commission to oversee the New Mexico Public Defender Department. The following authorities will appoint members: the Governor (1 appointee); the Speaker of the House (1); the President Pro Tempore of the Senate (1); the majority leaders of the House (1) and Senate (1); the Chief Justice (3 appointees); and, the Dean of University of New Mexico School of Law (3). To ensure a political balance on the commission between the two major political parties, the new law requires the Chief Justice and Dean of the law school to wait until all other appointments are made, and then their six collective appointments must make the commission politically balanced (meaning, no party can have more than 6 seats on the commission). All appointments are required to be made by July 1, 2013. If they are not, the Supreme Court is authorized to make all the appointments. Commission members must have demonstrated a commitment to quality right to counsel services or “to working with and advocating for the population served by the (public defender) department.” And, in keeping with national standards on independence, prosecutors, law enforcement officials and judges (and staff thereof) are prohibited from serving on the commission.
The commission is charged with promulgating standards related to, among others: minimum experience, training and qualifications for indigent defense providers (both primary and conflict); monitoring and evaluation of services rendered; and, caseload. However, given New Mexico’s history of undue political interference, the job of appointing a new chief public defender may be the most important of their initial responsibilities. Under the new law, the commission shall appoint the chief by October 15, 2013. The current chief public defender will serve until the new appointment (though nothing in the bill prohibits the commission from re-appointing the current chief if they so desire).
Overview of independent commissions in the 50 states
The addition of New Mexico means that there are now 20 states and the District of Columbia that have statewide public defender commissions overseeing right to counsel services: Arkansas, Colorado (2 separate commissions for primary and conflict services), Connecticut, District of Columbia, Hawaii, Louisiana, Maine, Maryland, Massachusetts, Minnesota, Missouri, Montana, New Hampshire, New Mexico, North Carolina, North Dakota, Oregon, South Carolina, Virginia, West Virginia, and Wisconsin.
As is typical of attempts to easily categorize disparate indigent defense systems, there is little uniformity amongst the remaining states. Some states have “partial” commissions (covering only a portion of the state or specific case types), some states publicly elect chief defenders, and other states have no structure to protect against undue political or judicial interference. The 6AC presents a complete run-down of commission structures across the country with a bird’s-eye view map for easy reference, here.
Conclusion: Is New Mexico out of the woods in regards to independence?
Long-time advocates for a meaningful right to counsel in New Mexico caution that all is not perfect with the new commission bill. Originally, the bill contained language that removed the Public Defender Department from the control of the State Personnel Act. That is, it would have freed the Public Defender Department to create its own hiring and retention program based upon merit. The language was removed as some longtime public defender employees felt that such a move would jeopardize their civil service status. Because of this, the New Mexico governor will still have some limited authority over the public defense function with the power, for example, to implement hiring freezes and/or set salaries. The Sixth Amendment Center will keep you posted if this remaining aspect of gubernatorial influence impacts the independence of the public defender services.