Searching for solutions to the nation’s public defender shortage
Nearly every state impacted by shortages of attorneys who represent people in criminal cases who cannot afford to pay for legal representation
ATLANTA, Ga. (Atlanta News First) - State and federal lawmakers are responding to Atlanta News First’s series, “The Sixth,” which sheds light on public defender shortages across the country, violating the constitutional rights of hundreds of people accused of crimes.
The problem stretches from coast to coast, with nearly every state impacted by shortages of attorneys who represent people in criminal cases who cannot afford to pay for legal representation themselves. Access to an attorney is a right protected under the Sixth Amendment of the U.S. Constitution and later mandated for states after a 1963 Supreme Court ruling.
U.S. Rep. Suzanne Bonamici (D-OR) can see the problem in her backyard. Judges in the Oregon district she represents, which includes Portland and Multnomah County, have dismissed hundreds of felony criminal cases due to the shortage this year because defendants did not have an attorney when they arrived in court. Some of those dismissed cases involve property crimes, stolen vehicles and domestic violence.
“It really concerns me that our court system cannot operate as it should because there aren’t enough public defenders,” said Bonamici in an interview with Atlanta News First earlier this week. “I appreciate that [InvestigateTV] is calling attention to this important issue.”
To address the shortage, Bonamici filed a bill this past November that could fund $250 million in grants to go toward state public defender offices across the country. The legislation, known as The Ensuring Quality Access to Legal (EQUAL) Defense Act, also calls for up to $75 million in student loan reimbursement for public defenders and pay equity with prosecutors.
“People who are working in district attorney offices, and prosecuting crimes, are making more than people who are defending,” she said. “So, the pay disparity is there. We need to have programs to encourage people to get into the important work of defense.”
The National Association of Criminal Defense Lawyers supports the legislation but worries the funding is not nearly enough. The $250 million is smaller than the amount some individual states spend on public defense annually.
If passed, the bill would also require the federal government to collect data on public defender caseloads and salaries.
A report by the Education Data Initiative shows the average law school graduate owes $180,000 in student loan debt. According to an October 2021 American Bar Association Journal, the median starting salary for public defenders is $63,638.
“If people graduating from law school have a tremendous amount of debt, they may need to make career decisions on that. So, that’s why we want to make sure there’s a loan forgiveness program for people who chose the important work of becoming a public defender,” Bonamici said.
Some Georgia state lawmakers say they will try to compel the Georgia Public Defenders Council, the agency in charge of providing attorneys to indigent defendants, to hand over information on caseloads, staffing numbers and legislative solutions this coming session.
Earlier this month, we uncovered hundreds of people charged with crimes in the state did not have legal representation over the past year, some languishing behind bars for months while waiting.
During a Georgia House committee meeting this past February, the director of the Georgia Public Defenders Council, Omotayo Alli, told lawmakers she didn’t have enough attorneys to represent clients.
“At this moment, we’re bleeding from my staffing right now,” she said. “We are losing our attorneys by the droves.”
Eight months later, the director now claims all staffing shortages have been fixed and the agency has never been in better shape since taking charge in 2020. “These last two years have been the most phenomenal,” said Alli, during an interview in November.
Ten days after Alli told Atlanta News First she had sufficient staff, one of her attorneys told a judge in Fulton County, Georgia the agency is still short public defenders. “We are doing everything in our power to add more attorneys. It is not happening as readily as none of us would like and I apologize for that,” said Arnold Regas, a state public defender in a virtual hearing posted on Fulton County Superior Court Judge Robert McBurney’s YouTube channel.
Ragas told McBurney that the Georgia Public Defenders Council hired him to travel the state to represent defendants in judicial circuits the agency has not been able to retain attorneys for clients. “Yes, it is not sustainable for me personally to be in multiple places at the same time,” said Ragas.
State Representative Josh McLaurin, a Democrat and attorney by profession, says this proves that Alli’s rosy picture of Georgia’s public defense system was political theater. “In this case, it’s not even remotely convincing or even effective political theater,” said McLaurin, who recently won a seat in the Georgia senate that represents parts of Atlanta.
This week, the Georgia Association of Criminal Defense Lawyers (GACDL) called the public defender shortage a travesty of constitutional proportion.
“Reports GACDL receives from its statewide membership and from public requests for legal assistance do not line up with Director Alli’s claims about current caseload sizes and defense counsel shortages,” said Jason Sheffield, the organization’s president in an email to InvestigateTV.
The association has more than 1,400 members across Georgia. “What more information is needed to illustrate how alarming and unacceptable the state of public defense is in Georgia before hardworking public defenders will have the resources they need and people whose life and liberty are at stake will have the constitutionally mandated legal representation they deserve?” Sheffield said.
During the same February House committee meeting, State Rep. Scott Holcomb asked Alli if high caseloads were contributing to public defenders leaving.
“In other words, are people leaving because, ‘I just can’t keep up with this caseload; this is too much. This is not do-able?’” Holcomb said.
The director blamed staffing shortages on low pay, which helped compel lawmakers to approve a six percent salary increase for some state public defenders.
Atlanta News First uncovered high caseloads persist in some parts of the state. State records show one contract public defender in Clayton County had more than 500 open cases on her plate this past October.
After learning high caseloads remain high, Holcomb, also a Democrat whose district includes Atlanta, believes the director may have underestimated the impact high caseloads can have on retention.
“People do leave because they’re underpaid, but they also leave jobs when they just don’t feel like they’re being successful,” Holcomb said.
McLaurin, the state representative, says he doesn’t think Alli is fit to lead the agency.
“The number of reports about her and the quality of those reports has been overwhelming. It seems to me that there’s a broad consensus that she’s at best indifferent to whether public defense is effective and funded enough in this state,” he said.
Republican Gov. Brian Kemp, who appointed Alli, stands by the director. “We fully expect the improvements she has implemented to continue,” said a spokesperson for the governor in an email.
The federal legislation proposed by Bonamici was originally filed by U.S. Rep. Ted Deutch (D-FL) in 2019 and again in 2021. Deutch recently retired from Congress.
It’s currently co-signed by six other Democrats in the House. Bonamici hopes she can garner support from Republicans, too.
“It is not a partisan issue that everyone wants the court system to work as it should as it’s designed to,” Bonamici said.
This story is part of a series about the constitutionally-guaranteed access to legal representation in court, and the challenges that arise when the supply of defenders is limited. Part one in the series looks at defendants’ desperate need for representation. Part two covers judges forced to take actions that may erode the public’s trust in the judicial system. In part three, former public defenders explain why they left the job.
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