A ‘Constitutional Crisis’ in Missouri

When the ACLU filed a class-action lawsuit against Missouri’s struggling public-defender system on Thursday, Michael Barrett wasn’t surprised.

“We've been jumping up and down trying to call attention to this matter for the last two years, telling the state, ‘This is coming, this is coming,’ although we didn't know precisely when it would come,” Barrett, the director of the Missouri State Public Defender Office, told me Friday. “It was inevitable, just given all the studies that have been done regarding our caseload and the limited number of lawyers the state gives us.”

The lawsuit, filed on behalf of five Missourians in the state’s criminal-justice system, accuses public defenders of failing to provide poor defendants with their constitutionally guaranteed right to legal counsel. The 53-page complaint depicts an overwhelmed system in which a too-small cadre of lawyers is burdened with too many cases and, as a result, too little time to properly defend their clients in court.

“For more than two decades, Defendants have failed to provide the resources required to adequately represent poor people accused of crimes in Missouri, leading to the actual and constructive denial of counsel for, and ineffective representation of, indigent defendants across the State,” the lawsuit claims.

Barrett echoed similar sentiments on the problems facing his office. “A lawyer can probably only handle 40, maybe 50 case at any one time,” he explained. “Our lawyers have three times that amount, and people are taking pleas because they're sitting in local jail waiting for their lawyer to get to them.” With so little time spent on each of their many clients, lawyers are often unable to conduct interviews, review evidence, or pursue avenues of investigation that could be crucial to their defense.

Under the Sixth Amendment, everyone who enters the American criminal-justice system has the right to adequate legal counsel. Two landmark decisions by the Warren Court in the 1960s gave force to that promise. First, the justices unanimously ruled in Gideon v. Wainwright that states must provide a lawyer if a defendant cannot afford one, effectively mandating the creation of modern public-defender systems. Four years later, in In re Gault, the Court held that juvenile defendants are entitled to the same due-process rights as adults, thereby imposing the same requirement on the juvenile-justice system.

But more than a half-century after the Warren Court’s revolution in criminal justice, the plaintiffs’ stories offer a window into how Missouri’s system falls short of that promise. A public defender told Shondel Church, one of the plaintiffs, he’d have to wait six months in jail before his lawyer could help him beat his felony theft charge. Church pled guilty to misdemeanor theft after three months instead. Brian Richman’s lawyer waived Richman’s right to appear before a judge with counsel for some hearings in a felony drug-charge case without consulting Richman first.

One of the most startling cases cited in the lawsuit is that of Randall Lee Dalton, who was charged with felony possession of a controlled substance after police raided the nursing home where he lived in January. Officers found a single pill of Lorazepam and arrested him for it, then discovered he had an outstanding warrant for writing a bad check and had failed to register as a sex offender in his county. (He was given a suspended sentence for misdemeanor sexual contact in 1994, according to the lawsuit.)

Dalton, who is described as physically disabled and mentally impaired, was then held on a $30,000 bond without seeing either a judge or his public defender, according to the lawsuit. He also did not have access to medication, nor did he meet his assigned public defender until he was brought into a courtroom for a bond hearing this month. He remains in jail while proceedings unfold as of the complaint’s filing.

The plaintiffs’ fleeting interactions with their own lawyers aren’t isolated incidents, according to the ACLU. “Public defenders [in Missouri] average just 8.7 hours on the most serious non-homicide felonies, amounting to less than 20 percent of the minimum time recommended by the American Bar Association,” the lawsuit said. “Overall, they are forced to devote fewer than the minimum hours recommended by the ABA in more than 97 percent of their cases.”

Nor are Missouri’s problems unparalleled across the country. When state legislators push for budget cuts, funding for programs that help impoverished defendants can be a more politically palatable target than public schools or state health-care systems. A similar class-action lawsuit is also underway in Louisiana, where declining traffic-fine revenues and a billion-dollar budget shortfall at the state legislature have hamstrung indigent-defense funding. Public defenders throughout Kentucky often take more than twice the caseloads recommended by the ABA. The district attorney for New Mexico’s Lea County asked the state supreme court to intervene in December after the state’s chief public defender ordered his lawyers to stop taking new cases there.

But even amid a nationwide crisis, Missouri stands out: The state ranks 49th out of 50 states in indigent-defense funding, Barrett said. Only neighboring Mississippi ranks lower. “Mississippi's excuse is, ‘we're the poorest state in the Union,’” he added. “I'm not quite sure what Missouri's excuse is, beyond that we're just not interested in this particular constitutional right—although we're quite fond of some of the other constitutional amendments.”

Even the U.S. Supreme Court has taken notice of the funding crisis for indigent defense, albeit only in passing. In Luis v. United States last year, the justices mulled whether federal agents could seize a defendant’s untainted financial assets if that seizure would prevent the defendant from hiring a lawyer of their choice. The justices sided with Sila Luis, who had $2 million in assets at issue, in a 5-3 decision.

Most of the decision focused on a legal balancing act between a defendant’s right to counsel and the state’s power to punish criminal acts—a battle ultimately won by the Sixth Amendment in this case. But Justice Stephen Breyer also raised a practical concern in his majority ruling. Seizing Luis’s assets would “render her indigent” and force her to rely upon “underpaid and overworked public defenders,” he noted. If the Court had accepted the federal government’s side in the case, Breyer surmised, it “would render less effective the basic right the Sixth Amendment seeks to protect.”

Breyer’s observation about the nation’s public-defender systems unnerved some of Breyer’s colleagues, especially when taken to its logical conclusion. “Given the large volume of defendants in the criminal justice system who rely on public representation,” Justice Kennedy wrote in his dissent, “it would be troubling to suggest that a defendant who might be represented by a public defender will receive inadequate representation.”

For Missouri, that suggestion appears to be a reality. The ACLU lawsuit describes a crisis for impoverished juvenile defendants, who are even less equipped to defend themselves in court. The lawsuit cites a 2015 Justice Department report on the St. Louis County Family Courts in which federal officials found routine violations of children’s rights in juvenile delinquency proceedings. Many of those violations sprung from the assignment of a single public defender to the county’s juvenile-court system, who took 394 cases in 2014 alone. And Missouri’s problems aren’t limited to St. Louis County. A 2013 report by the National Juvenile Defenders Council cited by the lawsuit found that 60 percent of state’s young defendants come before its courts without legal counsel.

Barrett said he’s tried reaching out to the governor and to state legislators to increase funding without success. Some of those attempts have been more dramatic than others. In one episode that received national attention, Barrett used a provision of the state’s indigent-defense law in an attempt to compel former Missouri Governor Jay Nixon, a Democrat and a trained lawyer, to represent a defendant last August. (A judge subsequently allowed Nixon to step aside.) His experience with Governor Eric Greitens, a Republican who replaced Nixon in November, hasn’t been much better, Barrett said.

“I've sent several letters to the new governor and multiple phone calls, none of which have been returned,” Barrett said. “I'm very interested in sitting down and trying to figure out a resolution to this, but I'm not getting a lot of interest reciprocated.” Greitens’s office did not respond to a request for comment.