And now for some Friday fun: Underfunded Missouri public defenders are tired of not having the money to hire more lawyers. So they’ve started delegating the defense to the one man who they argue caused this crisis: Gov. Jay Nixon.

The crisis of underfunded public defender offices has been boiling for a long time. Until now, however, no one was quite able to grab headlines with it—even John Oliver couldn’t get it trending. Will this grab be the spotlight public defense funding needs?  

The Show-Me State

Like most legal theater, the end goal of this is not necessarily to do what it says. On Tuesday, the head of the Missouri State Public Defender’s office, Michael Barrett, started circulating a letter wherein he invoked a rarely used state statute and called on Nixon (a practicing attorney in the state) to serve as the lawyer for a criminal defendant who cannot afford an attorney. There’s plenty of theoretical outs that Nixon could take—conflict of interest, too busy, finding another lawyer to volunteer for him—and even if he didn’t the penalty for violation might not be so high for him.

But the court of public opinion is different. And Barrett is finally getting some eyes and ears pointed towards the Missouri State Public Defender’s office, which has been facing a significant shortage of attorneys, majorly slashed budget, and ranked as 49th in the U.S.

“This action comes even after the Civil Rights Division of the Department of Justice found that poor black children are being systematically deprived of their rights in Missouri due in large part to the lack of public defenders. Choosing in the wake of that report to further debilitate the very organization that ensures an equal system of justice only adds to the escalating sentiment that the poor and disenfranchised do not receive a fair shake in Missouri’s criminal justice system,” said Barrett in his letter.

“As of yet, I have not utilized this provision because it is my sincere belief that it is wrong to reassign an obligation placed on the state by the 6th and 14th Amendments to private attorneys who have in no way contributed to the current crisis. However, given the extraordinary circumstances that compel me to entertain any and all avenues for relief, it strikes me that I should begin with the one attorney in the state who not only created this problem, but is in a unique position to address it.”

Photo Credit: Rick Waller cc
Photo Credit: Rick Waller cc

There are few times when a person could draw a line as directly as one could perhaps from the public defender crisis in Missouri to Nixon: When Barrett handed a report from the ABA which said the state would need to expand its stable of public defenders by 75 percent to his superiors in 2014, he laid out a case for budget increase. A budget raise at the public defender’s office could help offset the $725 million Department of Corrections budget, reduce the artificial inflation of the prison population, and help sort out “those we’re afraid of from those we’re simply mad at.” And all he needed was a $3.47 million budget increase—which Missouri’s General Assembly granted him. Only then, Nixon vetoed the budget increase, then used executive authority to withhold money when his veto was overturned, then reduced the budget of the office by exactly $3.47 million the next fiscal year.

And Beyond

And cases like this aren’t alone. As The Atlantic wrote last year, the problem is widespread and highly difficult for attorneys to tough it out:

[Derrick Carson, a Louisiana district’s chief public defender] would like to hire more lawyers, but he hardly has the money for those already on the payroll. When trying to solicit the help of local attorney Anna Ferguson, he initially offered her $1,000 for every 100 cases she accepted, or $10 per case. In January 2015, he cut wages by 10 percent and eliminated travel funds. All of the attorneys in his office hold second, even third, jobs. Carson, too, maintains a private practice, where he spends about 20 percent of his time. “You can’t survive on this salary alone,” said one of the support attorneys. “I do it for the love of Derrick,” said another.

In La Salle, another parish under Carson’s jurisdiction, the swell of cases grew so overwhelming that he enacted a “restriction of services” plan and, mid-summer last year, stopped representing some defendants accused of misdemeanors. While Carson is more desperate than most, “every jurisdiction is headed this way,” he said. “It’s just a matter of time.” More than three-quarters of the state’s 42 public defenders’ offices are struggling to avoid insolvency. The Louisiana Public Defender Board, which oversees every district office, has predicted “systemic failure in the public-defense system” by this summer.

It’s a dire state. Last September, the New Orleans office even ran an online crowdfunding effort to help raise $50,000. And as The Atlantic notes further down, Louisiana “incidentally, has one of the country’s highest rates of proven wrongful convictions.” Offices in other states like Tennessee, Idaho, and Georgia are also claiming underfunded public defenders.

The latter has even taken their own political theater to try to draw attention to the problem, as Scott Key wrote on his Georgia Criminal Appellate Law Blog when a public defender and an Assistant Attorney General appeared as co-counsel to show that resolving a conflict of interest like that is a “luxury the poor don’t have:”

For instance, I can’t represent two defendants if there is a chance that one will take a plea and testify against the other. But the public defender standards councilwould like a special rule for the poor so that they don’t have to provide the poor with conflict-free representation.

As Bill Rankin of the AJC noted, Justice Nahmias asked a very good question yesterday: “Why are you asking us to treat public defenders offices differently?”

The answer, of course, is money. The legislature created the state-wide public defender system and doesn’t want to fund it adequately. And, instead of seeking adequate funding or saying that constitutional representation comes at a cost, the organization seeks to tell the poor that they better hire a lawyer if they want conflict-free counsel.

It’s easy to dismiss these as time wasting, political theater. But in their defense, they are drawing attention to it with these shenanigans because it is the worst of times to be a public defender. A lawyer shouldn’t have to hold down second (or even third) jobs to help the public maintain a constitutional right. There shouldn’t be as drastic a choice between the livability of the inflating associate pay and doing public service. And as Barrett and his associates continue their social media tour, hopefully people can see past the hijinks and to the heart of the issue. After all, it’s the vehicle through which all other rights are realized.