- The Washington Times - Thursday, August 4, 2016

The head of Missouri’s public defender system has a novel idea to cope with chronic underfunding that he says has left his attorneys overburdened with large caseloads: He has assigned Gov. Jay Nixon to provide legal aid to the state’s poorest criminal defendants.

Michael Barrett, director of the Office of the Missouri State Public Defender, this week invoked a provision of state law that allows him, under extraordinary circumstances, to delegate legal representation to any member of the state bar. Citing recent budget cuts Mr. Nixon made to his agency, Mr. Barrett assigned the Democratic governor to represent a criminal defendant.

“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,” Mr. Barrett wrote in a letter sent this week to the governor. “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.”

The governor’s office responded Thursday, saying the public defender had overstepped his authority.

“Governor Nixon has always supported indigent criminal defendants having legal representation,” said spokesman Scott Holste. “That being said, it is well established that the public defender does not have the legal authority to appoint private counsel.”

Mr. Nixon served four terms as state attorney general before being first elected governor in 2008; his second and final term ends in January.

Complaints of underfunding and large caseloads are not unique to Missouri: The American Civil Liberties Union has filed lawsuits against numerous states in recent years alleging failures to provide adequate legal representation to indigent defendants.

But experts say Missouri has a long history of ranking near the bottom in terms of state per-capita spending for legal representation of the poor.

Missouri spends $6.20 per person on indigent defense, far below the national average of $18.63 per person, according to David Carroll, executive director of the Sixth Amendment Center.

“For them to simply move to the middle, they would need to spend $115 million — about three times more than they spend now,” Mr. Carroll said.

A 2014 study by the American Bar Association found that public defenders across the Show Me State had “insufficient time to devote to all aspects of their cases.”

“For the most serious felonies (excluding homicide), the 375 lawyers in the Missouri State Public Defender System who were surveyed reported spending an average of close to nine hours on their cases, compared to the 47 hours deemed necessary,” the report states.

Though Mr. Barrett’s recent tactic to address funding deficiencies within his office has gotten national attention, it isn’t the first time he’s gone to bat against Mr. Nixon over the issue. Earlier this month, he filed a lawsuit against the governor alleging the move to restrict funding to the office this year violated the state constitution.

“This is clearly a political move,” Mr. Carroll said of the move to assign defense representation to Mr. Nixon. “But I think the Missouri public defender is just so desperate that they are trying anything, whether it works or not.”

Among his complaints, Mr. Barrett said the governor has sought to cut $3.5 million from the $41 million Missouri State Public Defender budget this year. The reduction comes after the agency’s budget was cut by $3.47 million in fiscal 2015.

The governor’s spokesman said that since Mr. Nixon took office in 2009, the public defender’s office has seen a 15 percent increase in funding even as other state agencies have seen budget cuts.

Mr. Carroll said that even if the $3 million in funding was restored this year, it still wouldn’t bring the budget close to what it needs to be to provide adequate representation to poor defendants in the state.

To address the issue, he suggested the state might be better served to look into alternatives that would reduce the workload of public defenders. Lawmakers could reclassify certain nonviolent crimes so that they are not punishable by jail sentences and, as a result, not trigger the requirement of legal representation, or look to expand drug and alcohol treatment options for offenders.

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