Montana Politics

Republicans to the Poor: No Justice for You

While today’s House session, during which Republicans voted down (almost always on party lines) every amendment offered by Democrats to restore reasonable funding and a dose of humanity to the budget, was a predictably awful spectacle, the callous decision not to add funding to the Office of Public Defenders was an especially egregious—and unsurprisingly hypocritical—move to deny rights to one group of Montanans who most need legal protection.

Republicans like to talk a lot about the Constitution—and our obligation to defend it at every turn. It seems their version of the Constitution ends with the Second Amendment, though, as the Legislature has been consumed for weeks with insane gun proposals while ignoring critical needs to protect other constitutional rights of Montanans. Among the rights not considered important today were those of criminal defendants who have to navigate the criminal justice system only aided by overworked and under-staffed public defenders.

The Supreme Court ruled unanimously in 1963 in its landmark Gideon v. Wainwright decision that the Fourteenth Amendment demands that states provide attorneys to clients unable to afford them in criminal cases, but Montana Republicans refused amendments today that would work not even to solve the budget crisis faced by the Office of the State Public Defender, but simply to alleviate a situation in which the office could well have to endure reductions in their ability to “take cases and a potential furlough of [their] work force.”

And the truth is that, even with representation, the odds are stacked against defendants. A Harvard Law Review article from 2008 by David Simon makes the case that even under the provisions of Gideon, the vast majority of criminal justice dollars are spent on the police and prosecutors:

“Of the more than $146.5 billion spent annually on criminal justice, over half is allocated to support the police officers and prosecutors who investigate and prosecute cases, while only about two to three percent goes toward indigent defense.”

A Yale Law Review article from 2013 by Stephen Bright and Sia Sanneh makes the case that the public defense system makes it almost impossible for indigent defendants to get access to justice:

Even when representation lasts for more than a few minutes, it is often provided by lawyers struggling with enormous caseloads, who practice triage as they attempt to represent more people than is humanly–and ethically–possible without the resources to investigate their clients’ cases, retain expert witnesses, or pay other necessary expenses. As a result, they are unable to assess cases and give their clients informed, professional advice during plea negotiations that resolve almost all cases in ‘system of pleas, not trials.’

A brief look at the news over the past few years demonstrates that the situation is dire in Montana, with overworked public defenders struggling to provide representation to clients. In 2014, the Independent Record reported that the budget for public defenders was leading to incredible staff turnover, low pay for attorneys, and legal work compared to an emergency, where lawyers have to be engaged in “triage.” The Helena Vigilante described the situation in the Helena office:

In 2012, the office opened 3,053 new cases—a 33 percent increase from 2007. Yet the office was allocated only 15.5 staff positions in 2012 compared to 15 in 2007. The outcome of that unbalanced formula is that the 10 half-mad attorneys still manning the ramparts of the embattled office have found themselves gradually overwhelmed and in desperate need of reinforcements.

These media accounts are supported by the State Bar Association, which unanimously passed a resolution calling for more funding to, among other things, end delays that “cause those accused – but not yet convicted – of a crime to languish in jail, depriving them of their liberty and the ability to earn a wage and care for their families.” Despite unfair criticism of OPD from Republicans in the House, the ACLU noted that the Office of the Public Defender is facing ever-growing challenges that demands increased funding:

The agency is making great strides against difficult odds: a sharp increase in caseloads coupled with an agency budget that was underfunded from the start. Without the necessary funding it will be impossible for it to live up to our state’s constitutional obligation to provide effective assistance of counsel.

Even Supreme Court Chief Justice Mike McGrath weighed in, saying that the increased caseload for public defenders was having a “serious consequence” for Montana’s court system.

Faced with all of that evidence, what did Montana Republicans in the House do? They voted in lockstep against equality under the law, against protecting the rights of the accused, and against people who they simply don’t think matter. Along the way, as Representative Ellie Hill noted, they attacked the very worker at OPD who are struggling under the weight of the Legislature’s inadequate funding:

Justice Black made a case for human rights and fairness in 1963 that seems to have gone unheard by Montana House Republicans, when he wrote the following in his opinion:

The right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours. From the very beginning, our state and national constitutions and laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trials before impartial tribunals in which every defendant stands equal before the law. This noble ideal cannot be realized if the poor man charged with crime has to face his accusers without a lawyer to assist him.

It’s telling that a body busy self-promoting its commitment to the idea of liberty doesn’t understand that one of the fundamental of our legal system must be equal treatment under the law when those rights are in question. That it’s unpopular to fund legal defense for criminal defendants or that it doesn’t win many votes is no excuse for failing to ensure that a legal system already stacked against criminal defendants doesn’t offer a bit more fairness.

If you appreciate an independent voice holding Montana politicians accountable and informing voters, and you can throw a few dollars a month our way, we would certainly appreciate it.


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  • I could not agree more. Whatever is saved by starving the public defender system is offset by the slowdown in the justice system and keeping prisoners in jail longer than necessary.

    Anthony Lewis’ “Gideon’s Trumpet” is a fine account of Gideon v. Wainwright, and remains in print. The movie of the same name, staring Henry Fonda as Gideon, and Jose Ferrer as Abe Fortas, is still available, but hard to find at an affordable price (Amazon is offering a DVD for $100).

    • Agreed. Given the battle lines are drawn along party affiliation, politics gets in the way. Bullock wanted a comprehensive budget with no consideration of specific proposals. I believe the R’s wanted to start with a basic budget and add measures (like ordering a vehicle built to buyer specification) as debated and voted upon. I expect there will be compromise before this is done.

      I would have appreciated a link to the specific Dem proposals to read what was in them.

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Don Pogreba

Don Pogreba is an eighteen-year teacher of English, former debate coach, and loyal, if often sad, fan of the San Diego Padres and Portland Timbers. He spends far too many hours of his life working at school and on his small business, Big Sky Debate.
His work has appeared in Politico and Rewire.
In the past few years, travel has become a priority, whether it's a road trip to some little town in Montana or a museum of culture in Ísafjörður, Iceland.

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