The United States Supreme Court has determined that “independence of counsel” is “constitutionally protected,” and that states have a “constitutional obligation to respect the professional independence of the public defenders whom it engages.” However, wherever the public defense system is accountable solely to either the interests of the executive branch (e.g., in those states where the statewide indigent defense director is a direct gubernatorial appointee) or the legislative branch (e.g., in counties where the indigent defense director is an appointee of the county commission or board of county supervisors) political interests can, and often do, conflict with the constitutional right to an adequate defense for each and every person facing a potential loss of liberty in those jurisdictions.
To demonstrate this, let us begin in those states with state administered systems and where the chief defender is a direct gubernatorial appointee. (As of 2017, those states are: Alaska, Delaware, Iowa, Rhode Island, Vermont, and Wyoming.)
Executive attorneys of indigent defense systems in these states can feel the pressure of undue political interference if, for example, the governor calls for all executive departments to take a 10% budget cut. Since the bulk of an indigent defense system’s expenditures are in personnel, the cut must come at the expense of staff. Unlike other aspects of the criminal justice system, defense practitioners have no control over the number of new cases requiring their services. Therefore, a 10% budget cut is impossible to implement if it is not met by a 10% cut in public defender workload – at least it is impossible if one is concerned about maintaining parameters of ethical representation for all clients. But, despite the ethical considerations, a public defender that is a direct gubernatorial appointee is likely to cut 10% rather than risk being replaced by someone who will do what the executive says.
Indeed, this scenario took place in New Mexico prior to the electorate amending the constitution to require an independence of the defense function. In February 2011 then-chief public defender, Hugh Dangler, was terminated by the New Mexico Governor1 in the middle of the legislative session for suggesting that the state public defender was underfunded, as reported in the February 17, 2011 Santa Fe Reporter:
I fear that I was not taking positions that the Governor liked in various obligations for the [Chief] Public Defender,” Dangler says. “We have a very, very bad budget crisis, and I was testifying last week in front of the various committees. In fact it’s kind of interesting that my firing comes the week after my testimony. And I basically said, ‘We can’t make it with the budget we’ve been offered by either the [Legislative Finance Committee] or the Governor. And I think you’re supposed to say that, ‘Of course, we support the Governor’s option.’
The dynamic is similar (if not more egregious) in county-based systems where the public defender director reports directly to the county executive or county legislative body (or where private attorneys contract directly with county government for their services). For example, read how undue political interference results in deficient services in California here. Examples of other states that have undue political interference at the county level include: Arizona, Mississippi, New York, Pennsylvania, and South Dakota, among others.
At the county level, undue political interference most often takes the form ofthe flat fee contract method, where a private attorney handles an unlimited number of cases for a single flat fee. National standards ban flat fee contractual arrangements because they are rife with financial incentives for lawyers to do as little work on cases as possible. Generally, all trial expenses (experts, investigators, etc.) are paid out of the same flat fee, meaning that a lawyer’s take home pay is negatively impacted the more outside assistance he seeks.
National standards underscore this point. The American Bar Association’s Ten Principles of a Public Defense Delivery System, explicitly states that the “public defense function, including the selection, funding, and payment of the defense counsel, is independent.” In the commentary to this standard, the ABA notes that the “public defense function “should be independent from political influence.”
The U.S. Supreme Court and national standards are not solely concerned with undue political interference on the defense function. An indigent defense system also needs to be free of undue judicial interference too. National standards suggest that the best way to protect defense counsel independence – either on the municipal, county or state-level – is by establishing an independent public defender commission.
- Although the termination of Dangler occurred under a Republican administration, undue political interference with the right to counsel in New Mexico is not a partisan issue. Governors from both the Republican and Democrat parties have seen fit to replace sitting public defenders. In fact, former New Mexico Governor Bill Richardson, a Democrat, vetoed a bill passed on an overwhelmingly bi-partisan basis that would have created an independent statewide public defender commission.
