It's a measure of the potential peril awaiting criminal defendants in American courtrooms that every person arrested in this country is supposed to have some version of the following statement read to them as the cuffs go on: "If you cannot afford an attorney, one will be provided to you at no cost."
Though the promise of a trained defender for every indigent defendant is both noble and necessary for the legal system to truly mete out justice, in practice, the reality of providing those defenders has long been a net stretched to the breaking point in most states, including Arkansas. In Pulaski County, for example, the managing public defender said that his office is representing between 85 and 90 percent of all criminal defendants, with most of his attorneys juggling the cases of between 90 and 120 defendants at any given time. For rural public defenders, some of whom cover courts in up to six counties, the challenge of simple geography is added to the mix. One public defender said that in addition to representing hundreds of defendants in five different counties, she drives two-and-a-half hours, one way, over winding mountain roads to confer with clients in the furthest-flung jail and courthouse from her office. Another public defender in South Arkansas said that, in addition to covering district courts, juvenile courts and more in six counties, he and the four other full-time attorneys in his office handle an average of 400 to 450 felony cases per year. That's not in total. That's each. The same public defender told us he can't even afford a secretary to answer the phone at his county office in Magnolia.
If that sounds to you like a system in crisis, you're probably right. If you think the state is taking stories like these as a call to action, that remains to be seen, though it hasn't worked in the past. Last October, Gregg Parrish, executive director of the Arkansas Public Defender Commission, appeared before the Joint Budget Committee of the Arkansas Legislative Council and requested a budget increase that would allow him to hire 46 additional attorneys and 10 support staff. Parrish noted that data generated by his office showed an average of 537 clients per public defender in the state last year — far above the American Bar Association's recommendation that attorneys handle no more than 200 misdemeanors or 150 felonies per year. The 2016 budget for the commission proposed by former Gov. Mike Beebe, meanwhile, recommended funding for only three additional public defender positions. On Tuesday, new Gov. Asa Hutchinson released his own comprehensive proposal for the state budget; it makes no change to the public defender appropriation recommended by his predecessor. Additions to the budget are still possible between now and the end of the legislative session, however.
Several states are being sued in federal court over inadequate representation due to overwhelmed public defenders. Some in Arkansas fear a similar lawsuit may already be inevitable here, especially if the legislature doesn't do something to bring caseloads down to a manageable level. That will cost money, however, and in a poor state — one that has historically given notoriously short budgetary shrift to those accused or convicted of crimes — the question is: Will we pay to fix the problem now, or will we be forced to pay to fix it later?
Though assistance of counsel for a person who stands accused is guaranteed in the Sixth Amendment to the Constitution, that didn't always mean the government had to pay for a lawyer for an indigent defendant. Free representation for the poor wasn't enshrined into constitutional law until 1962, when the U.S. Supreme Court unanimously ruled in Gideon v. Wainwright that defendants had a right to counsel even if they couldn't afford it. "In our adversary system of criminal justice," Justice Hugo Black wrote, "any person hauled into court who is too poor to hire a lawyer cannot be assured a fair trial unless counsel is provided for him. This seems an obvious truth."
The view of that obvious truth from the front lines of public defense in Arkansas is undoubtedly somewhat different from the view from that lofty bench. Robert Jeffrey is the managing public defender in South Arkansas's 13th Judicial District, which covers Calhoun, Columbia, Cleveland, Dallas, Ouachita and Union counties. A public defender since before the state Public Defender Commission was created in 1998, Jeffrey said his office handles at least 90 percent of criminal defense cases in those six counties, a caseload that falls on the shoulders of a staff of five full-time attorneys (including him), one part-time attorney, one full-time secretary and one part-time secretary.
On plea and arraignment days, Jeffrey said, it's not uncommon to have 50 to 60 clients in the courtroom, though he has represented as many as 80 in a single session. Asked how he lugs all the files needed for that many cases to the courthouse, he laughed before saying, "You make two trips to the car." He often brings a secretary to court with him to work as a client liaison, handing out notices about the next court date to those defendants Jeffrey doesn't absolutely need to see that day. He said his work as a public defender has made him very efficient.
"I hate to use this phrase," Jeffrey said, "but a lot of times, it's just the assembly-line practice of law. If you have big volume, you learn not to waste time. ... I've developed a routine on how to interview them, unless it is a very complicated case. But [with] the less-serious felonies, I can get what I need to know in 15 or 20 minutes."
Right now, Jeffrey said, he doesn't have a secretary for an office he hopes to open soon in Magnolia (one of several county offices he runs), because the county refused to fund one. Budgets for public defender offices are split, with payroll coming from the state while the budget for support staff comes from the counties.
"I'm trying to rent an office there so people will know where we are," he said, "but on most days, that office will be locked because I'll be somewhere else. There will be nobody to answer the phone or meet with people if they come by."
The playing field between prosecutors and public defenders is lopsided all over the state, Jeffrey said, something he learned quickly starting out, when the prosecution in one of his early trials was able to send an alleged murder weapon off to FBI headquarters for analysis. "Even with the [Public Defender] Commission, where we can get access to experts, we can't do that," he said. "[Prosecutors] have county sheriff's offices and maybe one or more police departments, depending on their jurisdiction, to assist them. Those departments have investigators. They have victim-witness people to coordinate their witnesses and help them meet with victims and victims' families. They have support, before you even get into the funding aspect."
As a former state legislator who served in the House from 2003 to 2008, Jeffrey said he understands the budgetary constraints the state is under. "I was on the budget committee for four years," he said. "I understand how hard it is for the state to spend more money in a particular area. But it's kind of like the [Lake View] school thing. When you neglect something, problems come up."
While Jeffrey spends hours on the road every week, the problem of geography is even more acute for Tammy Harris, the managing public defender of the 16th Judicial District, which covers Cleburne, Fulton, Independence, Izard and Stone counties in North-Central Arkansas. Her office, which includes two full-time attorneys and one part-time attorney, is in Heber Springs, but her jurisdiction stretches all the way to the Missouri state line.
"From my office to our most northern county is a two to two-and-a-half-hour drive, just to get to court," she said. "That's a five-hour commute to and from our office."
Like Jeffrey, Harris said that prosecutors in her district have an obvious advantage in terms of staff and budget. That adds up to prosecutors having more time to prepare their cases. "We tried to get the counties in my district to pay for some support staff when they did our budgets for 2015, and the counties would not do that," Harris said. "They felt it was the responsibility of the state."
Harris said she hopes that bias against those accused of crimes doesn't have anything to do with the seeming reluctance of the state and counties to provide adequate funds for public defenders. "I think everybody wants to be tough on crime," she said. "That's the politically correct thing. But the constitution requires that everyone have their day in court and they be represented by an attorney who is effective. I don't think we can be effective unless the playing field is equal and adequate."
In Central Arkansas's 6th District, which includes Pulaski and Perry counties, Bill Simpson is the chief public defender. Even though the volume of Pulaski County courts means Simpson's office is larger and has more staff than most other public defender offices around the state, Simpson still feels the crush of heavy caseloads. Right now, Simpson said, every attorney on his staff has between 90 and 110 felony cases in circuit court. There are 24 full-time public defenders for the 6th District, plus part-time attorneys and a "conflict office" that handles cases in which a public defender must recuse for some reason. In addition to covering the circuit and district courts in Little Rock, the office is responsible for representing defendants in the juvenile courts in both counties, plus the district courts in Jacksonville, Maumelle, Perry County and North Little Rock. Simpson said his office has the bare minimum to cover the courts at this point.
"What I worry about on the way to work is not the murder trial," he said. "It's, 'Will we have enough people in every court today?' We have enough people for every court, if everyone is there. If someone takes a vacation or blows a tire, though, we're scrambling."
When he started as a public defender fresh out of law school in 1976, Simpson said, the office represented around 75 percent of criminal defendants in Pulaski and Perry counties. He estimates that number has grown to over 90 percent in recent years. While Simpson said the attorneys in his office provide excellent representation, he hopes the legislature will work to find funding to ease the pressure.
"You can't prepare 110 cases for a jury trial," he said, "talk to all the witnesses, subpoena all the witnesses. You just can't do it. So these people who work here are experts at deciding what's going to trial [and] what's going to be worked out as far as a plea bargain."
Simpson's counterpart in the 6th District is Prosecutor Larry Jegley, who also serves as the president of the state Prosecuting Attorneys Association. Jegley appreciates the work done by public defenders, but said it's an oversimplification to say that just because there may be more prosecutors than public defenders in a given district, public defenders are outmanned and outgunned. He said that idea has been oversold.
"As far as the numbers go, I think there has to be a more valid and analytical way of looking at it, rather than just throwing up the bogeyman of: 'Oh, gosh, the big, bad state has all these people and they're just piling on us and throwing people in jail for inordinate amounts of time," he said. "I think a thoughtful analysis of it will show that's not the case."
Jegley said that though his office has 45 attorneys on staff, fewer than 30 are assigned full time to circuit court. Those attorneys, he notes, handle 100 percent of the criminal prosecutions in Pulaski and Perry counties, in addition to serving as what Jegley calls "the gatekeepers of the criminal justice system" by reviewing every criminal case file submitted by law enforcement. He said his office also handles over 10,000 citizen complaints per year, consults with police on "multiple rearrest issues," and covers the district court and juvenile court dockets in Little Rock, North Little Rock, Jacksonville, Maumelle and Perry County. The jobs of the prosecutor and the public defender aren't equivalent, Jegley said. He believes simple numbers shouldn't be taken as proof of an advantage for prosecutors.
"I think it's an illegitimate comparison to equate the job of the prosecuting attorney to the job of the public defender," he said. "I fully support having competent, adequately compensated and sufficient numbers of public defenders, don't get me wrong. But to just simply say, 'Well, there's this many prosecutors and there's only this many public defenders' is based on a wrong and illegitimate premise.' "
Like many attorneys in the state, Jegley has been keeping an eye on the efforts to secure more funding and staff for the public defender's office. He believes more funding without a thorough analysis of the issues at hand may be premature.
"I think you're just throwing money at the problem and seeing if it'll stick," he said. "What needs to happen is there needs to be a thoughtful evaluation of it."
Public Defender Commission Director Parrish has seen life as a public defender from the bottom up. The former managing public defender for the 13th District in South Arkansas said there were times when the pressure of juggling so many cases in six counties was "a nightmare."
"I knew most of the judges' cell phone numbers by heart," he said. "I could call them and say, 'Judge, I'm coming. I just left this judge, and now I'm coming to see you.' But I've made three counties in one day, from judge to judge to judge. That doesn't take into consideration that if I've got court down there, I've got to go see those people in the jail at some point in preparation for court. Even if it's the first time I've seen them, I've got to go see them. There's a whole day. If you're going to see five or 10 clients, that's a day. I know for a fact that my public defender has been sitting in the jail until 8 o'clock at night seeing clients. That's not uncommon."
Statewide, Parrish estimates, public defenders are handling between 90 and 95 percent of all felony cases. In some of the poorest counties of East Arkansas, he said, the figure approaches 100 percent. They've got a saying in public defenders' offices, Parrish said. They call it "counting noses," and it's how every managing public defender in the state starts his or her day.
"You're running, and you're gunning," he said. "You've got to have a nose in that courtroom somewhere. If the judge wants a public defender to be there, we've got to be there."
When Parrish became the director of the commission in September 2013, he directed his staff to put together statistical data on caseloads for comparison to caseload guidelines established by the American Bar Association. The ABA guidelines say that full-time defense attorneys working 2,080 hours per year should handle no more than either 150 felonies or 200 misdemeanors during a given year. Under those guidelines, an attorney working 150 felonies a year would have a 100 percent "utilization rate." When his staff totaled up the number of hours worked by public defenders in each of Arkansas's 23 judicial districts, factoring in only the hours they worked on cases, Parrish said, there wasn't a single district in the state that was coming close to the smaller numbers in the ABA guidelines.
"We didn't factor in vacation time that they might take. We didn't factor in that they might be out for [Continuing Legal Education] training, or travel from one county to the next," he said. "We just took actual numbers, and we don't have a utilization rate that's below 100 percent. ... We have some districts that are approaching 400 to 500 percent utilization numbers, without figuring in travel or anything else. Those numbers were astounding."
To get the caseloads down to the levels recommended by the ABA, Parrish said, he'd need an additional 100 to 150 more attorneys, plus support staff — numbers he knows aren't reasonable given the budgetary constraints on the state. While preparing his budget proposal for 2016, Parrish said he thought hard about what to ask for before settling on a request for $29.7 million, the figure he presented to a legislative committee. Parrish's proposal would be $5.5 million north of the budget proposed for the Arkansas Public Defender Commission by former Gov. Beebe. Besides the additional 46 attorneys, the extra money would allow the hiring of five secretaries and five investigators to do legwork, like locating witnesses and serving subpoenas.
"I knew that if I came in there and asked for the positions we actually need, I'd give the impression that there's a new director who just doesn't get it," Parrish said. "That  is a realistic number. Two per district. I would say every one of the managing and chief public defenders in this state would say they could use two more positions."
The Sword of Damocles hanging over the state's lawmakers is the threat of a state or federal lawsuit claiming that Arkansas's public defenders are so overwhelmed that they are unable to provide effective counsel to poor defendants. Currently, Parrish notes, there are lawsuits over caseload-related ineffective counsel of indigent defendants pending or settled in at least three states.
"New York just settled one back in October of last year involving five counties," Parrish said. "That lawsuit lingered for seven years. The legal fees involved were $5.7 million. That's by consent. One of the attorneys was quoted as saying it's going to cost the state hundreds of millions of dollars over the long run. Georgia just had a lawsuit filed in January of last year, a 60-to-75 page lawsuit. They sued everybody — numerous defendants — and they're seeking class [action] status."
Little Rock civil rights attorney and Democratic state Rep. John Walker says that the tipping point where poor defendants are unable to receive effective counsel from public defenders was reached some time ago in Arkansas. While Walker said he has "plenty on his plate" at the moment, he called the situation in Arkansas "ripe for a lawsuit."
"You have situations, as we've explored and discovered, where public defenders meet their clients for the first time right before a plea and get them to enter a plea right at that moment in exchange for no time," Walker said. "They become criminals at that point, without any investigation into whether there was a crime committed or whether or not the accused did it. They don't get equal representation to begin with. There's no possibility that a person who could afford to pay would have so little attention given to his or her problems without the attorney being subject to a malpractice claim."
While Walker said he hopes Hutchinson will take the lead in addressing the public defender shortage in the state, he said that several House members, including him, plan to present legislation this session to try and increase the budget for public defenders.
Rep. Doug House (R-North Little Rock) is a member of the legislative Joint Budget committee, which controls the purse strings of the state. A lawyer for over 30 years, House said that most of the other lawyers in the legislature understand and support the idea that the state's public defenders need additional resources. He senses an ill wind blowing from the judiciary on the matter as well.
"I think in our Arkansas courts, our judges are giving us a heads up and fair warning that a motion for post-conviction relief might be entertained for ineffective assistance of counsel," House said. In other words, that means a court could toss out a conviction if the defendant's attorney didn't do an adequate job.
Even worse for the state, House said, would be a lawsuit in federal court. "Then we'd have the federal courts supervising the public defender system in Arkansas," he said. "It's not a very pleasant experience to have the federal courts telling you what to do. I don't want the people of Arkansas to have to go through that, and I don't want them to have to pay for it when we can head it off."
House said the Public Defender Commission's budget appropriation request is currently on hold while the committee gathers information on caseloads, how cases are counted in each jurisdiction, and how staff is utilized. Parrish used "cases per attorney" during his appearance before the committee last year, but House is more interested in "clients per attorney," which he said would be a better metric to judge caseloads. As an example, House gave the scenario of a policeman who pulls over a car for no tags and eventually arrests the person inside for DUI, possession of a handgun by a felon, possession of a stolen handgun and possession of a controlled substance.
"You're looking at five or six cases for one individual," he said. "Now, what we don't know yet is, are they [the Public Defender Commission] counting cases per individual, or are they counting individual defendants?"
Asked for a clarification to address House's question, Parrish said the commission counts the number of defendants per attorney.
House said the committee would also like to see more data on to whom cases are being assigned. "You have an entry-level position, and then you've got a grade one, a grade two and a grade three," he said. "Some of the folks — and it's my impression, I could be wrong — but my impression is that some of the folks gain the grade three or level three just by longevity. They may be sitting out at a podunk district court handling DUIs and speeding tickets all day long. Top-level attorneys ought to be handling the class Y felonies and the capital cases. So I've asked them to look at their workload to rebalance their force."
But Parrish said he knows of no top-level public defenders in the state who handle lower-level cases like DUIs. "Our more experienced lawyers are the ones expected to handle the more complicated cases," he said. "That helps us avoid allegations of ineffective assistance of counsel."
Part of that rebalancing of force, House said, could come in the form of shuffling attorneys from one jurisdiction to another, where the need is greater. "There's nothing to keep, say, an attorney from Fort Smith or El Dorado from handling a class Y felony in Jonesboro or Mountain View," House said. "Then on the other hand, with the grade one and grade two positions, there's no reason they shouldn't be handing the class D and class C felonies. You ought to be paid based on your experience, and the more experienced you are and the more you're paid, the more difficult the cases you should be handling. I've asked them to look at that, and they say they are."
Parrish said that while he has explored the idea of moving positions from district to district, he hasn't figured out how to do it without upsetting the already precarious applecart. "We've tried to look at that and see if we can do it, and I don't know how we can move a position, based on numbers, from one district to another," Parrish said. "I'm not saying it can't be done, but I can't figure out how to do it, as far as telling one district, 'You're one person short.' If I came over to Bill Simpson at the Pulaski County office and told him, 'I'm taking three of your positions and I'm moving them,' [he'd say] 'Why? You can't do this to us.' "
Currently, House said he's thinking in the range of around "16 new entry level positions, plus a few investigators" for the Public Defender Commission. While it's a broad leap between Gov. Beebe's three, House's 16, and Parrish's 46 plus 10 staff, House said he believes there's room in the legislature for compromise on the issue. He said the personnel subcommittee of the budget committee will consider the issue after they've collected the facts they need, and will then make a recommendation to the full budget committee.
"I think conservatives, liberals and everybody in between understands the problem," House said. "The question is going to be, 'What can we afford, and what do we have to have?' "
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