(Guest Post) The Montana Public Defender Program: Past, Present, Future?

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Written by Jim Taylor

James Park Taylor is currently working as Country Director for the Myanmar program of International Bridges to Justice.  His duties include establishing and supporting public defender offices in Myanmar.  His career includes many years of private practice emphasizing criminal defense, and almost a decade as the Managing Attorney of the Tribal Defenders for the Confederated Salish and Kootenai Tribes.  He left the Tribes in 2005 to accept a position as a Visiting Clinical Supervisor at the University of Montana School of Law.  In 2007 he moved across campus to take a position with the Maureen and Mike Mansfield Center at the University of Montana. 

From 2008-2010 he traveled to China on behalf of the Mansfield Center to work with the Swiss-based NGO International Bridges to Justice (IBJ).  His work with IBJ in China focused on criminal justice reform and served IBJ in China as Clinical Director, Acting Country Director, and Asia Training Director.  From 2010-2013, he worked in private practice in Missoula, taught part-time at the University of Montana School of Law, and did international consulting.  He served as the first Chair of the Montana Public Defender Commission and was a member of the Commission from 2005-2011.  He is a past President of the Montana Association of Criminal Defense Lawyers.  He was named as a Fulbright Senior Specialist in 2008 and traveled to the University of Pecs in Hungary and to Can Tho University in Vietnam.  His consulting work has taken him to Afghanistan, Georgia, Vietnam, and Ghana.

From 2013 to 2017, he served as the Legal Director for the ACLU of Montana and has been involved in litigation on voting rights, marriage equality, the death penalty, and other civil rights issue.

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Fifty-five years ago the US Supreme Court issued its landmark decision in Gideon v. Wainwright guaranteeing the right to counsel in criminal proceedings.  The anniversary of the decision passed largely unnoticed in the public’s eye, our focus being on the spreading chaos that is our federal government.  Also passing largely unnoticed these days is the continuing damage that is being done to the public defender system in Montana.  Public defenders represent the indigent accused of crime, but they also represent those facing mental health commitments, people whose children have been removed by the state, juveniles, and those facing involuntary guardianship proceedings.  They are the defenders of the poor and the marginalized among us.

In 2005 the Montana Legislature created our first statewide public defender system in direct response to litigation brought by the ACLU of Montana in the case of White v. Martz.  The Legislature, the Attorney General, and the Governor made a decision to try to create a new system that would cure the constitutional deficiencies that had been plaguing our patchwork indigent defense system.

The structure of the new system appeared sound.  Montana’s Office of the Public Defender (OPD) was hailed as a national model for what a public defender system could be- the first statewide indigent defense organization that fully embraced the American Bar Associations Ten Principles of a Public Defense Delivery System.  One key feature of Montana’s system was that it was to be managed by an independent commission- the Public Defender Commission.  The Commission was an eleven-member board comprised of a diverse group of people with a knowledge of different components of our criminal justice system.  Montana’s new system began operation on July 1, 2006.

Despite the unique structure of the system and the good intentions of the Commission, the Legislature persistently failed to properly fund OPD.  The lack of funding undermined the proper functioning of the agency. This is not to say that OPD was blameless in the problems it has encountered.  There were management issues in OPD that contributed to its fiscal issues.  Without question, however, the primary issue has always been the failure of the Legislature to properly fund the system.  The ongoing lack of funding created a mindset in OPD, both by the Public Defender Commission and by the Chief Public Defender, that focused all their energy on getting through each day’s new financial crisis.  Like all problems of scarcity, the lack of an essential resource skews our perception and shifts our focus onto what is perceived as the immediate need. This is true whether the scarce resource is time or money.  Just as the overworked public defender must focus on today’s emergency hearing knowing they should be preparing for next week’s felony trial, OPD was always focused on dealing with another fiscal crisis. As a result, neither the Public Defender Commission nor the Chief Public Defender ever put the necessary resources into strategic planning that might have offered a way out of its crisis mode of management.

Over the first 11 years the agency was in operation, the Legislature funded OPD at $24.4 million dollars less than their actual expenditures, requiring the agency to constantly cut costs and to return again and again to request supplemental funding.  The Legislature grew frustrated with the fiscal situation of the agency.  In response, the 2015 Legislature stripped the agency of its entire base budget and set up an interim committee to study the agency.  The committee conducted thorough and thoughtful hearings and recommended restructuring the agency by doing away with the Public Defender Commission and moving to a more conventional government system headed by a director who would report to the Department of Administration.  The Legislature adopted the committee’s recommendations and then they did one better- they slashed the agency’s budget for the current biennium.  Presumably, they looked at the fiscal bedlam they created and thought “Problem solved.  Let them make bricks without straw.”

The Department of Administration appointed Harry Freebourn as Interim Director for OPD while it conducted a search for a permanent director.  Harry knows as much or more about OPD as any person in Montana; he was the chief financial officer for the agency from its inception.  He has a granular knowledge of why the agency costs as much as it does. According to testimony Harry offered at a meeting of the Legislature’s Law & Justice Interim Committee in January of this year, the agency is now facing a $10,000,000($10 Million) shortfall for the biennium.  It is facing that shortfall while trying to handle more than 39,000 open cases, and while it continues to receive an additional 37,000+ new cases each year.

After a search lasting eleven months, the Department of Administration chose Rhonda Schaffer for the position of Director of the Office of Public Defender.  Ms. Schaffer comes to the agency from the Governor’s Office, where she served as the Centralized Services Administrator.  She is not an attorney, and has no background in providing or administering indigent defense services.

So what is OPD’s plan to make up the $10,000,00 shortfall the Legislature created for the current biennium?

  • OPD has frozen all its employees’ salaries. This means that the current disparities between what public defenders salaries and county prosecutors salaries will only get worse.  The freeze affects all 278 FTE positions within OPD.
  • OPD is going to reduce what they pay to contract experts required for their cases. It is unknown if these individuals will continue to do business with the agency under the reduced rates.
  • OPD is going to reduce their contract attorney workforce. OPD currently has about 190 contract attorneys to which they send cases that cannot be handled by the OPD staff attorneys.  Maybe some of the extra caseload will go to new staff attorneys,  But it is inevitable that decreasing contract attorney numbers without reducing the overall caseload will necessarily shift the workload onto OPD’s already overworked staff attorneys.  This will reduce services to clients.  According to the Annual Report OPD recently filed with the Governor, at the end of June 2017, 91% of OPD staff attorneys were already carrying more than the maximum allowed caseload.  Some attorneys were carrying double or triple the maximum allowed caseload.
  • The contract attorneys that remain will receive a reduction of more than 10% in what they are paid, reducing their contract rate to significantly less than what OPD paid for contract services when it began operations in 2006.

Is backing the agency into a fiscal corner and heaping work on existing employees going to solve OPD’s budget woes?  We learned the answer to that question recently from the Governor’s Budget Director, Dan Villa.  According to Villa, OPD will have a shortfall of at least $3 million and will have to ask for supplemental funding from the 2019 Legislature.

This cavalier treatment of OPD’s fiscal issues might be acceptable if the agency were making boxes of cereal. We could tell the agency to make the boxes smaller or to use cheaper packaging.  But the work of the public defender does NOT involve boxes of cereal, it involves real people with real problems.  The clients of OPD are the people of Montana, people who are supposed to be protected by the Constitution.  If the Legislature continues to fail in its responsibility to provide effective assistance of counsel to the poor and marginalized, then it will be up to the courts to once again step in and remind them of that responsibility.

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