Defensive measures 

ACLU sues counties, state for better indigent defense

In the U.S. Constitution, all rights are created equal, though to borrow a phrase from George Orwell, some rights are created more equal than others. While the right to bear arms and worship as one sees fit have had well-funded advocates in their corner, the right of indigent defendants to adequate legal representation has rarely garnered much popular support. It’s probably fair to say that no politician has ever been elected to office on the promise of allocating more taxpayer dollars to attorneys who defend poor people accused of crimes. Although the Supreme Court upheld in 1963 that the responsibility of providing legal counsel to the poor rests with the states, and as generations of TV viewers now know from police dramas, “If you cannot afford an attorney, one will be appointed to you,” many states—Montana included—have not always lived up to that constitutional mandate.

The problem is not a new one. In 1976 the National Center for Defense Management identified major deficiencies in Montana’s system of indigent representation. In April, 1981 the Montana Legislature acknowledged the problem, and in a joint resolution concluded that “the constitutional requirement of the effective assistance of counsel for persons accused of crimes has not been achieved consistently on a statewide basis.” In December of 1982 the Legislature’s Joint Subcommittee on Judiciary recommended creating a statewide public defense coordinator who could collect caseload information on public defenders and provide them with additional training, hiring standards and other technical assistance. To date, none of these reforms has ever been implemented.

How much money is spent on indigent defense in Montana—or throughout the United States, for that matter—is anyone’s guess, according to the National Legal Aid and Defender Association. The last nationwide study on the subject, completed in 1982, is outdated, and when the U.S. Department of Justice tried to repeat it in 1999, it ran into “insurmountable data collection problems.” In Montana, there is no state agency that oversees public defenders.

“Part of the problem is that nobody—and I mean nobody—keeps data on who’s represented by a public defender and who’s not,” says Vincent Warren, staff attorney with the national office of the American Civil Liberties Union (ACLU). Last week the ACLU filed a class-action lawsuit against the state of Montana and seven counties—Missoula, Ravalli, Flathead, Lake, Glacier, Teton and Butte-Silver Bow—alleging that their indigent defense services are constitutionally deficient.

The lawsuit was brought on behalf of seven plaintiffs, including Michelle Ford, a woman who has been detained in Flathead County Jail for seven months and whose attorney has yet to initiate an investigation into the charges against her.

The lawsuit alleges that the state and counties do not provide adequate funding or supervision of indigent defenders, that they lack adequate hiring standards, training and job qualifications—no county in Montana requires public defenders have any trial or appellate experience before being hired—and that they set no caseload limits for those attorneys. In recent years, the ACLU has filed similar suits in Connecticut and Pennsylvania and won increased funding and improved standards for public defenders.

Part of the problem, says Warren, stems from the different ways that counties provide indigent defense services. In counties like Teton and Glacier, attorneys are appointed by the judge on an hourly basis. In Flathead, Ravalli, and Lake counties, private attorneys enter into a flat-fee contract with the county (sometimes for an entire year) to represent some or all of the county’s indigent defendants. One problem with flat-fee contracts, says Warren, is that it provides no economic incentive for lawyers to work harder on their cases, since they get paid the same fee regardless of whether they represent two defendants—or two hundred.

Some larger counties like Missoula have a public defenders office, whose attorneys are county employees. Last year Missoula County’s public defenders unionized but have been stalled for months in contract negotiations. The primary sticking points, says Teamster representative Dan Doogan, are wages and caseload limits, though Doogan emphasizes that the union has no involvement with the ACLU suit. As of press time, a state mediator had been appointed to broker a deal.

Missoula County’s chief public defender, Margaret Borg, is the first to acknowledge that her staff has a heavy caseload—on average 125 to 150 cases per defender at any given time—though she points out that those numbers can be deceptive, since many cases are not active simultaneously.

“We all have lots and lots of work to do,” says Borg. “The system adapts to that in some ways because the entire criminal justice system has lots of work to do. So what happens is the work slows down to accommodate the amount of work, so that everybody’s case will get handled. It may not be as quickly as the client or the attorneys or the system would like, but the system has to accommodate the tremendous load on it.”

Borg also recognizes that the county attorney’s office has better investigative resources at its disposal than her office does, but she believes Missoula’s public defenders and prosecutors have achieved a level of parity.

“It’s clear to me that the ACLU has gone throughout the country and looked at states to determine whether indigent criminal defendants have adequate representation. And that’s fine,” she says. “We’re all on the same page when it come to looking for more resources to help the criminal indigent defendant.”

That said, however, Borg does see the ACLU suit as an attack on herself and her staff.

“It feels like the ACLU is pointing fingers at people in this office and encouraging people to say that they’ve had inadequate representation and that we don’t care and we’re not qualified,” says Borg. “That doesn’t feel good, it’s not true, and that dust needs to settle. We have hard jobs here and we give our all. And it doesn’t feel really good to have the ACLU come in and say, ‘No, you don’t.’”

“This is absolutely not an attack on public defenders or indigent defense providers,” says Warren, who emphasizes that the problems exist primarily at the state level. “In fact, we’re dealing with the symptoms of a problematic system.”

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