Government & Politics

Missouri could face legal challenge for shortfalls in public defender system

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Anthony Cardarella represents dozens of clients accused of crimes who are considered too poor to pay for the legal help the U.S. Constitution guarantees them.

The public defender is busy, so busy he’s reminded of the classic “I Love Lucy” episode in which a conveyor belt of candy passes far too quickly for the comic to keep pace.

“It’s a lot like that,” he said.

Cardarella’s heavy workload isn’t unique. Each of Missouri’s public defenders will average more than 200 cases this year, everything from murders and serious felonies to juvenile cases and probation violations. That’s about four cases a week.

Complaints by overburdened public defenders are common in almost every state. That reflects the high demand for indigent defense services and shaky enthusiasm for spending taxpayer money to provide them.

But Missouri’s public defender system may be in more trouble than most. Just last year, an American Bar Association study suggested the state needed to add almost 300 lawyers to the 350 it already has.

Yet state lawmakers recently approved a budget of $38.3 million for the public defender’s office, the lowest level in five years. Missouri spends about $6.40 per resident to defend the poor, a little more than half the national average.

Similar shortfalls have prompted federal lawsuits. In mid-June, the American Civil Liberties Union sued Idaho, claiming its indigent defense system leaves defendants under-represented. Wednesday, the ACLU sued Fresno County, alleging a similar shortfall.

And the warning signals are growing louder in Missouri. The national office of the ACLU recently met with Missouri public defenders to review the state’s indigent defense strategy, suggesting growing interest in a legal challenge to the state’s system.

“The Constitution promises due process and the right to an attorney,” said Jeffrey Mittman, executive director of Missouri’s ACLU chapter. “That promise is being broken in Missouri.”

Some prosecutors and politicians reject that view.

“It will not surprise me if a lawsuit gets filed in Missouri,” said Platte County Prosecutor Eric Zahnd. “But I don’t think the public defender is in any different situation than prosecutors are, than police departments are, than judges and their clerks are in. Everybody is being asked to do more with less.”

Missouri Gov. Jay Nixon, who vetoed $3 million in additional public defender spending last year, said the state’s budget is too tight to dramatically increase spending on legal representation for the poor.

“With the resources you have, what are your priorities?” he said. “We’ve kept its funding consistent. … We’d love to have unlimited money.”

But Michael Barrett, director of the Missouri State Public Defenders office, says the state has been able to find plenty of money when it comes to putting people in prison. Nearly 32,000 people are incarcerated in Missouri prisons, figures show, at a cost last year of $725 million — a record.

It would make sense, Barrett says, to spend more on defense attorneys and less on penitentiaries.

“People are going to prison when they shouldn’t be going to prison,” he said. “Providing us the resources we need … is pennies on the dollar compared to what they’d have to spend on a new prison.”

The unsettled and ongoing dispute over funding for prisons and lawyers in Missouri comes as politicians in both parties are rethinking their overall approaches to crime and punishment.

Missouri’s prison population has more than tripled since the mid-1980s, when politicians responding to public pressure passed tougher sentencing laws, many involving drug possession and nonviolent crimes. Other states took similar steps, as did the federal government.

But on Wednesday, President Barack Obama said those steps may have gone too far.

“Our criminal justice system isn’t as smart as it should be,” he said. … “It is not as fair as it should be. Mass incarceration makes our country worse off, and we need to do something about it.”

Obama visited a federal prison in Oklahoma the next day to emphasize the point. He also commuted the sentences of 46 federal offenders last week, including two from Missouri.

Some Republicans have also expressed interest in prison reform.

“I have called for comprehensive reform measures to fix America’s broken criminal justice system, ease the burden on taxpayers, and break the cycle of incarceration for non-violent ex-offenders,” GOP presidential hopeful Sen. Rand Paul says on his website.

Billionaire businessman Charles Koch, a patron of right-wing politics, has also argued for criminal justice reform.

“Fixing our criminal system could reduce the overall poverty rate as much as 30 percent, dramatically improving the quality of life throughout society,” he wrote for Politico in January.

Yet finding the political support for spending more on indigent defense can prove difficult. Few office-holders have ever lost an election for being too tough on crime.

Jackson County Prosecutor Jean Peters Baker says the answer is spending more to prosecute criminals, not defend them.

“Reducing crime and the costs of incarceration will come in Missouri only with increased investment in our criminal justice system,” she said in an email, “especially in prosecutors’ offices.”

Spending appears to be the biggest concern of critics of Missouri’s public defender system. The state gets relatively high marks for its indigent defense structure: a statewide office, with full statewide funding.

That isn’t the case in many other states. In some places, including Kansas, indigent defense relies on a combination of funding sources and structures that usually involve county government. Those systems typically include private attorneys appointed or hired to defend the poor, as well as lawyers who are state employees.

That can lead to different quality standards and spending levels.

“Kansas has a patchwork quilt system that is fraught with opportunities for inadequate defense to be provided,” said Micah Kubic, director of the Kansas chapter of the ACLU.

The different levels of service form the basis of the class action lawsuit in Idaho, where nearly 90 cents of every dollar spent to defend poor suspects comes from county taxpayers, not the state.

Kansas spends nearly $9 per resident for indigent defense services.

Missouri seems unlikely to hit that level anytime soon, Barrett said, absent judicial intervention. More than half a century after the Supreme Court said defendants have a right to a lawyer, the money needed to make that happen remains hard to find.

“It’s so shocking,” he said, “that the people who are providing us with such woeful funding see themselves as champions of the Constitution.”

To reach Dave Helling, call 816-234-4656 or send email to