Gideon Alert: Military build-up expected to make Guam public defender crisis worse

BY David Carroll on Thursday, May 20, 2010 at 8:55 AM

Public defender services in Guam were formally created in 1968.  In 1975, legislation created the Public Defender Services Corporation (PDSC), an island-wide organization overseen by a board of trustees to assist low-income people with civil, criminal, and juvenile proceedings.  Through rule-making authority, the Board of PDSC has a power most public defenders in the country would crave – the power to declare a moratorium on the type of cases they handle.  As the population and caseload has increased, the Board of PDSC has used their inherent powers to stop taking certain cases.  PDSC, for example, no longer takes any civil matters and has also pulled attorneys out of the majority of family court proceedings. 

In 2007, Guam spent $2,875,418 on right to counsel services, or approximately $16.38 per capita (36% above the national average of $12.07).  Yet, as Kuam News reports, the spending has not kept up with caseload growth.  PDSC currently has 8,646 cases with only ten and half lawyers to handle them (the chief defender carries half a caseload).  This means each full time attorney has 823 cases.  The chief reports that 22% of the cases are felonies, 44% misdemeanors, and 34% “other” (delinquency, juvenile drug court, probation, etc), meaning that each attorney is working at over 380% of national workload standards.

But the situation is even worse.  The caseload reported denotes “open active” cases only; it does not account for all of the cases that the attorneys handle in a given year.  National caseload standards are based on the number of cases actually touched in a given year (i.e., pending cases at the start of a year plus all new assignments).  Assignment projections suggest that the Guam defenders are most likely going to work at over 600% of capacity under national caseload standards in 2010.

Why then has no moratorium been called on criminal cases?  The PDSC Board of Trustees consists of: the Chief Justice of the Supreme Court (chair); the Presiding Judge of the Superior Court; the President of the Guam Bar Association; and two other appointments by the Chief Justice.  There is a conflict with having the Chief Justice and Presiding Judge on the Board, because PDSC seeks funding from the same legislative pot of money as does the Court.  A criminal case moratorium could force the courts to appoint private counsel at a higher rate, causing more money to come out of the Court's budget; thus the judges have a direct financial conflict of interest.  Again, there is a reason why “independence” is the first of the ABA Ten Principles of a Public Defense Delivery System: without independence the majority of the other nine principles (including controlled workload) is unobtainable or rendered meaningless.

It should be noted that the PDSC Board has made some moves to alleviate workload stress in the past by hiring a limited term contract attorney.  Unfortunately, the limited term contract attorney was hired away by a better offer less than three months into the seven-month contract.  PDSC has been unable to fill the vacancy since. 

In closing, the Guam news article mentions that, with an anticipated military build-up in the coming months, the caseload of public defenders will escalate.  The report refers to the military buildup anticipated by the transfer of Marines from Okinawa to Guam.  Roughly 9,000 active duty Marines, an additional 11,000 family members, and as many as 40 to 60,000 contract workers are expected shortly.  Adding 80,000 people to an island with a population less than 200,000 is a substantial impact.  And sadly, an influx of 18- to 25-year-old males - some experiencing family separation and the anxieties associated with military deployment - too often results in aberrant behaviors associated with alcohol or drug dependencies that bring military personnel or their families into contact with the criminal justice system.  As our American troops are engaged oversees fighting for democratic principles, we must ask ourselves what message we are sending the world when we do not meet our own constitutionally-enshrined values here at home?