Problems with Missouri’s public defender system won’t be fixed by increasing funding
As someone who served as a private defense attorney, public defender and prosecutor for four decades, I read “Defenseless,” The Star’s recent series on problems with Missouri’s public defender system, with great interest. Unfortunately, it reads as if there was a predetermined point to be made: that the system needs more resources, substantiated by anecdotal examples supporting that point.
Public defenders are some of the best and most experienced attorneys in the criminal justice system. The suggestion they are doing a fundamentally inadequate job is absurd, and the suggestion they are so overwhelmed with cases that it has become a constitutional crisis is even more absurd.
Perhaps because of my previous experience in the courtroom, I was subpoenaed to provide testimony in the pending federal lawsuit regarding Missouri’s public defender system. My testimony took several hours, but can be summarized in just one sentence: Missouri’s public defender system is struggling because it has become a huge bureaucracy whose resources are managed very poorly.
Its problems have always been misrepresented as an issue of inadequate resources. No discussion ever addresses the fact the public defender system has no meaningful measures in place by which to evaluate or improve its existing practices. The only two metrics that seem to be examined are the number of open cases and how much the time standards currently in use say should be spent on each case.
A high number of open cases can just as easily be attributed to the system’s inefficiency in handling them, rather than having too many cases assigned. For purposes of testifying in the federal lawsuit, I applied the time standards of the public defender’s office to the caseload of the prosecutor’s office. Counting only the criminal cases filed, the public defender’s time standards said we would need 35.5 prosecutors to handle our caseload. We had nine. Surely, meaningful evaluation should be a prerequisite to any serious attempt to address the system’s problems.
Two Jackson County judges, one a former public defender himself, have come to the same conclusion after holding hearings and receiving evidence on the issue of the adequacy of public defenders’ resources. Judge John Torrence said, in part: “The large caseloads in the public defender’s office … have primarily resulted from the creation of bad policies that have been self-inflicted, coupled with lack of effective training and mentoring of new, young lawyers.”
Judge David Byrn issued an order in June suggesting that some public defenders are intentionally attempting to cause “chaos” in the criminal justice system by their actions, harshly rebuking what these attorneys appear to be doing. Both judges are in positions to best view the daily workings of these players in the system, and their opinions should be given great weight.
The Star’s series instead bemoans a comparison between the resources of prosecutors and public defenders, without mentioning that public defenders handle only a percentage of the cases prosecutors file — about 40% on average across the state. There is no mention that prosecutors also review cases that are not filed, which are approximately equal to the number filed. Additionally, prosecutors give daily assistance to law enforcement and deal with caseloads that are double or more on average what public defenders have.
Before we default to fulfilling a bureaucracy’s request for more resources as the answer to its problems, we must first demand accountability for the use of its current resources. Then we can institute a meaningful system to evaluate how Missouri’s public defender system uses those resources.
Dwight Scroggins is a recently-retired elected prosecutor from Buchanan County, Missouri, and a former public defender and private defense attorney.
This story was originally published December 20, 2019 at 5:00 AM with the headline "Problems with Missouri’s public defender system won’t be fixed by increasing funding."