New Mexico’s independent state commission is a “complete game changer”

Pleading the Sixth: The New Mexico chief public defender recently requested the state legislature for a 21% increase in funding. Ten years ago, the chief public defender was fired a week after telling lawmakers that the system was underfunded. 6AC examines how the creation of an independent oversight commission in 2013 now makes it possible for the New Mexico chief public defender to request what it needs to run a constitutionally effective system, without fear of retaliation.

During testimony before the state legislature last month, the New Mexico Law Offices of the Public Defender (LOPD) told lawmakers that the public defender agency is suffering from excessive caseloads, severe attorney shortages, and low compensation. LOPD explained that additional funding is necessary to ensure that indigent defendants receive constitutionally effective lawyers and requested a 21% budget increase, or an additional $12 million, for fiscal year 2024 to recruit more attorneys and increase attorney compensation.

This would not have happened without the New Mexico Public Defender Commission – the independent oversight board created to insulate the public defender department from political interference.

ABCs of indigent defense in New Mexico

	The state funds all public defense representation in state courts, but requires municipal governments to fund all representation in municipal courts.
	State government administers all representation for cases arising in state courts, while local government administers public defense services in municipal courts.
	Independent state commission with authority limited by level of court (no oversight of municipal representation).

An independent commission protects the independence of public defense

New Mexico chief public defenders have not always been able to ask for the resources the public defense system needs without fear of retaliation. In 2011, then-Chief Public Defender Hugh Dangler was fired by the governor a week after telling state lawmakers during budget hearings that New Mexico’s public defender department was underfunded. Until 2013, the governor had the power to appoint and fire the chief public defender. As a result of this political control over public defense, for years it was difficult for chief public defenders to ask for what they truly needed to administer a constitutionally effective system. Unsurprisingly, the public defense system in New Mexico faced years of severe underfunding. This is why the commentary to ABA Principle 1 specifically recommends safeguarding the independence of a public defense system through the creation of a nonpartisan board.

In 2013, New Mexico statutorily created the New Mexico Public Defender Commission. The commission is composed of eleven members appointed by various authorities (including all three branches of government) and must, by statute, be politically balanced. The commission appoints the chief public defender, thus creating a layer of protection that allows the chief public defender to advocate for the system’s needs without fear of political repercussions.

“It’s a complete game changer,” current Chief Public Defender Bennett Baur recently told 6AC. Baur would know – he also served as chief public defender back when the position was controlled by the governor. According to Baur, the very first year after the commission’s creation, LOPD asked for a 106% budget increase, in part to make the point that it finally could ask for what the system needed without fear of retaliation. Every year since, LOPD has continued to fight for the resources it needs.

An independent public defense system strengthens criminal justice

Beyond issues of funding, the New Mexico Public Defender Commission has empowered the chief public defender to address deficiencies in the system and pursue criminal justice reforms, becoming “an equal partner in the justice system,” as called for by ABA Principle 8.

For instance, in 2016, when LOPD attorneys in Lea County had caseloads that were so excessive the attorneys could not meet their ethical duty to provide competent representation, Chief Public Defender Baur instructed them to decline new appointments. Through continued efforts to refuse cases, Baur tells us his job was never on the line because of the commission’s support. And, following the events in 2016, the commission helped LOPD create an official Case Refusal Protocol to standardize the department’s processes when facing unmanageable caseloads.

The commission’s impact is even felt by individual attorneys providing representation. Indigent defense attorneys now receive better training and resources, and may receive pay parity with prosecutors in the future (an ongoing effort). More broadly, Baur says the commission has legitimized LOPD as an important player with a strong voice in New Mexico’s criminal justice system. LOPD now partners with local stakeholder groups on various criminal justice reform efforts. That could not have happened without the creation of an independent state commission.

Conclusion

New Mexico created an independent state commission and gave LOPD the independence and protection that it needs to be effective. States without an independent commission or entirely lacking a statewide structure would do well to take note of the state’s achievements during its ten years since creating the New Mexico Public Defender Commission.