Gideon Alert: Legislative sponsor of the Montana Public Defender Act of 2005 calls for the system to be dismantled

BY David Carroll on Monday, August 2, 2010 at 2:45 PM

On June 9, 2005, Montana Governor Brian Schweitzer signed into law the Public Defender Act of 2005.  The Act created an independent 11-member public defender commission that is statutorily bound to issue standards and to hire and oversee a Chief State Public Defender and other centralized staff.  At the same time, the Act provides the flexibility required to address the diverse needs of a geographically large yet sparsely populated state.  Deputy Chief Defenders operating in eleven distinct geographic regions monitor and enforce commission standards – some by relying on public defender offices, others by employing contract defenders.  Indigent defense providers in the regions are supported by the Chief State Defender’s centralized staff, including: a Director of Training; the State Appellate Office; a State Serious Crimes Defender Unit; and, Director of Management Information Services.

At the time of its creation, Montana's system was hailed by national advocates as a model for other large geographic states anticipating right to counsel overhauls.  A former legislator and primary sponsor of the 2005 reform bill is now calling for the system to be “dismantled” and returned to the counties, as reported in the August 1, 2010 edition of The Missoulian.  Cited amongst his reasons for returning to the old county-based system is a critical report issued by American University’s Criminal Justice Technical Assistance Project under a grant by the United States Department of Justice, Bureau of Justice Assistance.

The American University (AU) report makes clear that there are issues with the new statewide system, as would be expected in any start-up government agency.  However, the limited nature of the study itself forced the AU team to “focus on the deficiencies” at the risk of ignoring the strengths – strengths the AU team enumerated as: a supervision commission designed to insulate staff from political and judicial interference; an excellent training division; flexibility to satisfy the needs of different localities; and, the framework of an efficient structure so long as it is “adequately funded and staffed.”

Yet the system has never been funded at an appropriate level to meet the performance and workload standards set by the commission.  Indeed, most of the problems AU identified could be attributed – at least in part – to insufficient funding to meet the legislative intent, for example: supervisors and the State Public Defender carrying too many cases to allow for proper supervision and evaluation of line attorneys; inadequate salaries and hourly compensation which in turn causes “high turnover” and “low morale;” and, a failure to keep accurate statistics to make the case for more funding support.

Clearly, AU thought there were management problems that exacerbated these basic funding problems.  But their report really serves to underscore a question that many new public defense systems face.  Is it best to concentrate as many of the limited dollars as possible to direct client services - even to the point where all administrative lawyers carry full-time caseloads - or, is it best to restrict caseloads initially in favor of better oversight, but risk push-back from the courts and legislature because the fledgling system turns back too many cases?

Though there may never be a clear answer to that question, beyond having the new system adequately funded from the get go, it is clear that dismantling the system and returning to the pre-reform days is an untenable solution. 

In February 2002, the ACLU and the law firm of Cravath, Swaine & Moore LLP filed White vs. Martz, a class action lawsuit against the state and seven of its county governments for failure to provide constitutionally adequate representation to indigent persons charged with felonies.  In conducting the litigation, the ACLU deposed more than eighty witnesses, including current and former public defenders, state and county officials, various members of the judiciary, and the Chief Justice of the Montana Supreme Court.  The ACLU also hired NLADA to conduct a seven-county assessment of indigent defense services.  NLADA’s final report concluded that Montana’s defense system was still plagued by the exact same systemic deficiencies that NLADA had found during its assessment in Montana conducted some 30 years earlier – namely that each county program suffered from a stunning lack of sufficient financial resources and oversight, which impeded attorneys working within the programs from performing even the most basic tasks necessary to an adequate defense. 

To give a sense of the right to counsel in Montana before the Public Defender Act of 2005, NLADA reported that in Missoula County the site team “did not observe a single misdemeanor defendant appearing with legal counsel, even those entering guilty pleas.  The Justice Court does not use .waiver of counsel. forms that would provide at least minimal indicia that a waiver was both voluntary and knowing.  At misdemeanor plea hearings, judges offered no explanation of the collateral consequences of pleading guilty, including, for example, the impact a criminal record has on employment, housing, eligibility for health or income-support benefits, or immigration status….  The plight of one indigent defense client observed in Missoula Justice Court is a good example of this problem.  The defendant in question was charged with stealing firewood.  He stipulated to the court that he stole the wood to keep his family warm.  Prior to sentencing, the district attorney questioned the defendant as to whether or not he had ever stolen firewood before.  The client, clearly scared, stated that he had stolen wood before from the same place on an earlier occasion.  The district attorney asked that the court impose fines and victim restitution for both incidents even though the defendant had not been charged with any wrongdoing in connection with the earlier episode.  The defendant was not informed that he did not have to answer the district attorney’s question.”

The ACLU indicates in The Missoulian news account that they will consider reactivating their class action lawsuit should the legislature seriously consider the call to dismantle the current system.  In 2004 -- just eight weeks before the trial was to commence -- Montana Attorney General Mike McGrath (and current Chief Justice) agreed to postpone the trial to provide the legislature the opportunity to strengthen the public defender system. 

We urge the people of Montana to heed the conclusion of the AU report: “Montana’s Public Defender Statute creates the framework for an exemplary statewide public defender system, establishing a foundation for delivering a wide array of high quality indigent defense services in a range of both criminal and civil matters.  The drafters of the legislation should be commended for both their commitment to ensuring that the constitutional right to counsel is a reality as well as their vision creating the structure for a system that can be implemented in the diverse environments that characterize the state.  The Commission established by the legislation has done an admirable job in creating standards and policies that can guide the systems implementation.”  The time has come to either adequately fund the system or divert enough cases out of the formal criminal justice setting so that lawyers may be able to adequately defend their clients with current resources.