Quick thoughts on the Missouri public defender gambit

Since I am finishing up a dissertation on the history of public defenders, several friends and colleagues have alerted me to this viral story about the Missouri public defender who took the unusual step of assigning a case to his state’s governor, pursuant to a provision of state law authorizing the public defender agency to deputize private attorneys. According to the news reports, the governor in question, Jay Nixon, has repeatedly vetoed or reduced budget appropriations for the state public defender agency in recent years.

The gambit appears to have succeeded at what I assume was its goal–calling attention to the agency’s budget shortfall and thereby forcing the governor’s hand–although it remains to be seen whether any additional funding will follow as a result.

Here are a few quick thoughts placing this story into historical context: 

  • I haven’t come across anything like this particular move in the annals of public defense politics (which is not to say it hasn’t ever happened before). The larger phenomenon of inadequate funding, however, has been constant more or less since the Supreme Court constitutionalized the right to counsel in 1963, in the case of Gideon v. Wainwright. That’s because Gideon requires states to provide criminal defendants with lawyers, but doesn’t specify how those lawyers are supposed to be funded or at what level–leaving funding questions to states and localities to work out for themselves. There are few places in the United States where public defenders would describe themselves as adequately funded (even though some places are certainly better than others). I wrote about the persistence and pervasiveness of inadequate indigent defense funding earlier this year in The Nation, and in a more academic format in the Columbia Law Review.
  • Given the structural factors that allow for (if not ensure) inadequate funding, public defender agencies have a long history of creative scrambling for resources, often in the face of political resistance. So while I haven’t come across this particular gambit, the impetus of a governor or other elected official slashing public defender budgets has many historical antecedents (again, some of those are discussed in my articles linked above).
  • While politicians have certainly been inconsistent friends of indigent defense, I think the Missouri public defender’s letter actually lets the organized bar off a little too easy. The letter states that Governor Nixon is being singled out, rather than other lawyers in the state, because “it is wrong” to burden “private attorneys who have in no way contributed to the current crisis.” While perhaps true as a matter of direct causation of the agency’s immediate budget shortfall, in the long run, the private bar has certainly played a role in creating and perpetuating a legal and political culture that devalues indigent defense. The role of the private bar is a major theme in my Columbia Law Review article mentioned above.
  • Many news reports have emphasized that Missouri ranks 49th out of 50 states in indigent defense spending. I am a big proponent of increasing funding for public defenders, and they can make a big difference in individual cases. That said, it’s worth noting that scholars haven’t found any systematic correlation between public defender budgets and other criminal justice metrics, such as incarceration rates (see, e.g., this article by Darryl Brown, “Epiphenomenal Indigent Defense“). Such findings don’t suggest that we shouldn’t fund public defenders, but do suggest that public defenders are only one input into mass incarceration. Expanding indigent defense funding alone won’t do much to dismantle excessively punitive criminal laws and policies. That conclusion is further bolstered by the federal system, where public defenders are relatively well funded, with relatively manageable caseloads compared to state public defenders, and nevertheless there are countless problems and injustices. On Gideon‘s 50th anniversary, New York’s federal public defender wrote eloquently about that disconnect in this Yale Law Journal essay.

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