Justice DenieD

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Justice Denied: America’s Continuing Neglect of Our Constitutional Right to Counsel Obstacles to Legislative Reform In several states, systemic reform legislation was introduced but failed to pass. Lack of political resolve, refusal of localities and local judges to cede control of their systems to state authority, and state unwillingness to pay for indigent defense are the major reasons for legislative inaction. On occasion, there also have been objections from the local bar, which sometimes stands to lose business if control is centralized. 32 One state where legislative reform has consistently failed to garner sufficient support is Mississippi. In 1998, the Mississippi legislature passed a bill establishing a statewide, state-funded system for indigent defense, overseen by a commission. However, the commission was funded for only one year, the system itself was never funded, and in 2000, the legislation was repealed. 33 Mississippi is the only state to rescind such a commission. As of 2005, Mississippi ranked last in the nation in per capita spending on indigent defense, 34 and studies indicate that representation at trial remains shamefully inadequate. 35 In 2006, the Mississippi Public Defender Task Force, which was established by the legislature to study the provision of indigent defense in the state and report its findings to the legislature, 36 once again recommended the creation of a statewide, state-funded indigent defense system to be overseen by a board. 37 In 2007, a bill to implement this suggestion died in committee. While the Mississippi legislature repealed statutory authority for a state commission, two statewide, state-funded offices for capital cases were established. 38 Later, Mississippi created the Office of Indigent Appeals to provide representation for 32 See ABA/TSG Indigent Defense Commissions, supra note 1, at 12. 33 See Miriam Gohara and Sarah Geraghty, In Mississippi, Scales of Justice are Tilted, The Com. Appeal (Memphis, TN), Mar. 14, 2003, available at http://www.naacpldf.org/content.aspx?article=145. See also Beverly Pettigrew Kraft, State Fund for Public Defenders Now Broke, The Clarion Ledger, Jul. 5, 1999. 34 In 2005, the population of Mississippi was 2,921,088 and the state’s indigent defense expenditures were $12.8 million. ABA/TSG FY 2005 Indigent Defense Expenditures, supra note 26, Chapter 2, at 17, 36. Dividing total expenditures by population yields roughly $4.39 per capita as the amount spent on indigent defense. This sum ranked Mississippi last in terms of state indigent defense expenditures. See Id. at 35 (Table of 50 State and County Expenditures for Indigent Defense Services Fiscal Year 2005). 35 NAACP Legal Def. and Educ. Fund, Inc., supra note 216, Chapter 2, at 6. (right to counsel is “functionally meaningless in Mississippi, a state which provides almost no regulation, oversight, or funding for indigent defense”). 36 Miss. Code Ann. § 25-32-71 (2007). 37 See Mississippi Public Defender Task Force Makes Recommendations for Current Legislative Session, The Spangenberg Rep., Feb. 2007, at 16. 38 See Miss. Code Ann. §§ 99-18-1 – 99-18-19 (2006) (creating the Office of Capital Defense Counsel); §§ 99-39-101 – 99-39-119 (creating the Office of Capital Post-Conviction Counsel). 154 | The Constitution Project
Chapter 4—How to Achieve Reform: Legislation indigent defendants convicted of non-capital felonies. 39 The state also recently extended the life of the Mississippi Public Defender Task Force until 2011, expanded its duties to include matters relating to youth and delinquency, and funded a division in the appellate office responsible for training, education, and technical assistance to all public defenders in Mississippi. 40 Regrettably, the state’s persistent failure to improve and adequately fund indigent defense will likely ensure that services at trial remain woefully insufficient. The state legislature in Alabama also has declined to reform indigent defense. In 2006, an Indigent Defense Task Force created by the Chief Justice of the Alabama Supreme Court drafted legislation that would have established a statewide indigent defense system. 41 The proposed bill would have given the commission full authority to determine the type of indigent defense system instituted in each district. Due largely to objections of local judges, who would no longer have the authority to determine the type of system in their circuits, and the concerns of the criminal defense bar that they would be assigned fewer cases and suffer a reduction in pay, the legislation failed to pass. 42 Similarly, in 2001, Alabama legislative committees defeated a bill to set up a statewide indigent defense commission. 43 In New Mexico, the governor’s opposition stymied systemic reform. Currently, the state public defender is an at-will employee appointed by the governor. The New Mexico legislature sought to enhance the independence of this state official by establishing a commission that was responsible for appointing the public defender and overseeing indigent defense in the state. 44 Legislation to achieve these objectives in New Mexico passed, but the governor vetoed the bill. 39 Id. at § 99-40-1. 40 Id. at § 25-32-71. See Legislative Update on Mississippi Public Defender Task Force Recommendations, The Spangenberg Rep., Jul. 2007, at 3. 41 See Proposed Bill to Create Statewide Indigent Defense Commission in Alabama Failed, The Spangenberg Rep., Jul. 2006, at 17–18. 42 Id. 43 See Fundamental Improvements to Alabama’s Indigent Defense System Defeated, The Spangenberg Rep., Jul. 2001, at 12. Alabama is one of the states currently studying reform of its indigent defense system. See infra note 129 and accompanying text; see also supra note 253, Chapter 2. 44 See House OK’s Bill to Detach Public Defender from Governor, Albuquerque J., Feb. 7, 2008. For further information, see New Mexico Coalition for Justice website, available at http://www.nm coalitionforjustice.org. The Constitution Project | 155
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Justice DenieD AmericA’s continui
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Copyright © 2009 by the Constituti
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Justice Denied: America’s Continu
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Table of Contents National Right to
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Table of Contents Pretrial Litigati
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Preface The National Right to Couns
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Preface public defense in the Unite
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executive suMMARy AnD RecOMMenDAtiO
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Executive Summary and Recommendatio
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Chapter Summaries Executive Summary
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Adequate Support and Resources Exec
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cHAPteR 2 indigent Defense today: A
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Chapter 2—Indigent Defense Today:
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Resource Inequities Chapter 2—Ind
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C. The Burden of Too Much Work Chap
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Deinstitutionalization Without Comm
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Specialty Courts Chapter 2—Indige
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APPenDices The Constitution Project
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Lavallee v. Justices in Hampden Sup
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Appendix C: State Statutes Establis
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