Mississippi has 82 counties and a statewide population estimated in 2009 at roughly 2.95 million. The felony trial courts are structured through 22 Circuit Court districts, with each comprising multiple counties. As the NAACP-LDF so succinctly stated, with the exception of death penalty cases and felony appeals (since 2005), “the State of Mississippi does not contribute one dollar towards the representation of poor defendants. Instead, it requires counties to shoulder the full obligation of providing lawyers for the poor.”
Under the Mississippi Code of 1972, indigent defense representation after Gideon was provided through an appointed counsel system. Beginning in 1979, if two or more counties within a given circuit so chose, they could together establish a public defender office instead of using a court appointed counsel system, and the public defender office could be either a full-time office or a part-time office. There have never been a significant number of full-time public defender offices in Mississippi. Most counties have consistently used either the appointed counsel system or a part-time public defender system that is really a flat-fee contract.
In 1990, Mississippi law provided that attorneys appointed to represent indigent defendants could only be paid a maximum fee of $1,000, and reimbursement of their actual out-of-pocket expenses. Two attorneys appointed to represent a defendant in a capital murder case brought a lawsuit – Wilson v. State, 574 So.2d 1338 (Miss. 1990) – challenging the low hourly rate then paid to assigned counsel. The Mississippi Supreme Court held that, in addition to their hourly fee, attorneys representing defendants in circuit court were entitled to receive payment for overhead.
After Wilson then, an attorney could receive a maximum fee of $1,000.00 (which the Court referred to as an honorarium), plus actual case-related out-of-pocket expenses, plus $25.00 per hour to reimburse the attorney for overhead. Fearing that indigent defense expenditures would increase because of the hourly overhead reimbursement, many counties switched from assigned counsel systems to contract defender systems, in order to “fix” the price of indigent defense. (By 2003, about 50 of the state’s counties were using a contract defender system to provide counsel to the poor.)
In 1992, the Mississippi Bar established a Criminal Justice Task Force, led by its Chairman Justice Fred L. Banks, Jr. of the Mississippi Supreme Court and its Vice-Chairman Circuit Judge R.I. Richard III. The Task Force commissioned The Spangenberg Group to conduct a statewide study of the state’s indigent defense system and provide recommendations. That report, Indigent Defense in Mississippi: Final Report, was issued in January 1995. It found that in the years since Wilson, 61 of the 82 counties had chosen to appoint a “part-time public defender” to represent indigent defendants, and in fact these were attorneys with whom the counties were contracting to do all of the indigent defense work in the county for a fixed annual amount. Two years later, at the request of the Bar, a second report was issued, Update: The State of Indigent Defense Services in Mississippi, January 1997, finding that the situation remained basically the same. In brief, the counties were circumventing the funding required by the ruling in Wilson, by neither establishing public defender offices nor operating appointed counsel systems. (For a public defender office, counties were responsible for the costs pursuant to Miss. Code Ann. Section 25-32-7, while for an appointed counsel system, counties were responsible pursuant to Miss. Code Ann. Section 99-15-17.)
The Criminal Justice Task Force recommended sweeping reform of the system for providing counsel to indigents. With the support of the Mississippi Bar, in 1998, a Mississippi legislator was successful in getting a comprehensive reform bill passed creating a defense system for felonies and appeals mirroring the state’s circuit prosecuting attorney system and intended to begin operations on July 1, 1999. (Under the Act, counties would have remained responsible for funding and administration of misdemeanor and juvenile cases.) The Mississippi Statewide Public Defender System Act of 1998 (1998 Miss. Laws 575) repealed completely the appointed counsel system, creating a nine-member Public Defender Commission with power to hire a state Executive Director, hire a District Defender for each circuit court district, operate an appellate division, establish standards for the provision of services, and in essence provide for the representation of indigents throughout the state.
When adopted, the Act said that the Statewide Public Defender System would be funded by appropriations made by the Legislature to the Commission, but the original Act did not include any such funding appropriation. The Commission was to be established beginning July 1, 1998 and was ordered to assess the feasibility and cost of the implementation of the Act and report its findings to the legislature by January 1, 1999.
The Commission convened and appointed Beth Davis as its Executive Director. At the request of the Director, The Spangenberg Group issued its third report in December of 1998, Update: The State of Indigent Defense Services in Mississippi in Fiscal Year 1998, surveying the actual expenditures and caseloads in an eighteen- county sample representing a cross-section of indigent defense in the state. Among its findings, the average cost per capita spent by the sample counties for indigent defense was $3.24 in 1998. (Though this constituted a 16% increase over the two years since the 1996 Spangenberg report, Mississippi still remained at the bottom of the list of comparable states in per capita indigent defense spending, “a sign that indigent defense remains woefully underfunded.”) The report did not purport to provide a cost estimate for full implementation of the Act, and it reflected that the Commission had “decided to ask the legislature for funds for 5 new appellate attorneys who would concentrate their efforts in the area of state post-conviction capital appeals.”
In what has come to be known as “the Quitman County case,” three counties and a part-time public defender from a fourth county sued the state in 1999 in an attempt to force it to fund the cost of indigent defense under the Act and relieve counties of the financial burden. (Quitman County v. State of Mississippi, No. 99-0126 (Circuit Court, Quitman County, 1999); Noxubee County v. State of Mississippi, No 99-0136 (Circuit Court, Noxubee County, 1999); Jefferson County v. State of Mississippi, No 99-0169 (Circuit Court, Jefferson County, 1999); Van Slyke v. State, No. 00-0013 (Chancery Court, Forrest County, 2000). Many of the pleadings, briefs, and opinions in the case are available here.) After four years of motions, hearings, appeals, and remands, and following a week-long bench trial, the Circuit Court entered judgment in favor of the state on November 10, 2003, and that judgment was eventually affirmed by the Mississippi Supreme Court in 2005. (Quitman County v. State, 910 So.2d 1032 (2005).)
Funding for Mississippi’s statewide public defense system was never forthcoming. In 1999, the legislature amended the Act and extended the law providing for counsel to be appointed to represent indigent defendants until July 1, 2000, while leaving in place but unfunded the remainder of the Act. Appointment of counsel was extended again the next year until July 1, 2001, and again the following year until July 1, 2002. Finally, in 2002 the legislature repealed the Act entirely, and the Mississippi Statewide Public Defender System was dead. The 2003 NAACP Legal Defense and Educational Fund, Inc. report on the state of indigent defense representation in Mississippi, Assembly Line Justice: Mississippi’s Indigent Defense Crisis, detailed the situation thoroughly, and indeed can be taken to fairly well describe where things stand today, with a few small changes.
Along the way, small improvements were made to Mississippi’s indigent defense services. In 2000, the legislature created the Mississippi Office of Capital Post-Conviction Counsel and the Office of Capital Defense Counsel, both of which continue to exist today.
The year 2000 legislation also created the eleven-member Mississippi Public Defender Task Force to, among other things, “[m]ake a comprehensive study of the needs by circuit court districts for state-supported indigent defense counsel, examining existing public defender programs” and to provide that report to the legislature by September 29, 2000. Its first recommendation, urging incremental adoption of a statewide system by beginning with a state-funded indigent appeals office, took five years to implement. In 2005, Mississippi created its Office of Indigent Appeals, with the state for the first time providing any funding outside of death penalty cases. The Public Defender Task Force continues to exist, although the Court’s reports on its work do not provide much encouragement.