Covid, chronic underfunding pose ethical dilemmas for Arkansas' public defenders

Swell of cases, low funding raise system ethical issues

Public defender Lou Marczuk (left center) leads a pretrial conference with other public defenders on Wednesday, Feb. 2, 2022, at the Pulaski County Administration building in Little Rock. 
(Arkansas Democrat-Gazette/Thomas Metthe)
Public defender Lou Marczuk (left center) leads a pretrial conference with other public defenders on Wednesday, Feb. 2, 2022, at the Pulaski County Administration building in Little Rock. (Arkansas Democrat-Gazette/Thomas Metthe)

Unprecedented caseloads are pushing already-strained public defenders in Arkansas beyond ethical standards.

The increased workload, spurred by the coronavirus pandemic, has laid bare long-standing flaws in how the state pays for attorneys when criminal defendants can't afford them.

Public defenders from Fayetteville to Little Rock are juggling up to four times the number of cases they handled before the pandemic. While courts suspended trials to slow the spread of the virus, new defendants continued to enter the system, swelling the case files of court-appointed attorneys.

A recent legal opinion on attorney workloads in Arkansas raised concerns among public defenders about the ability to provide effective counsel in the face of current demands.

"It scared all of us because we know that none of us are in compliance with that ethics opinion," said Brian Miles, a public defender based in Jonesboro. "There's probably not a public defender in the state of Arkansas that's in compliance with that opinion."

But rising workloads are nothing new for court-appointed attorneys, according to Gregg Parrish, executive director for the Arkansas Public Defender Commission.

"We've had a mounting caseload for over 10 years," he said. "What has happened, like everything else, covid has shone a light on all of this."

By law, the state is responsible for paying the salaries of public defenders and their support staffs. But in practice, funding from the Legislature has fallen short, requiring many counties to make hard decisions over whether to volunteer aid from tight budgets.

The resulting overload, data show, is threatening a constitutional principle affirmed by the U.S. Supreme Court in 1963 -- that all people regardless of income have the right to capable criminal defense.

For thousands of Arkansans unable to afford attorneys, this right is in jeopardy; for the rest of the state, an ineffective public defender system means siphoning funds away from local initiatives and a criminal justice system mired with stalled cases.

A review of county budgets across Arkansas from 2020 showed that at least 26 counties were paying for more public defender expenses than state statutes required. The findings, published by the Association of Arkansas Counties, showed that in the most extreme case Benton County spent just shy of $1 million on personnel services for public defenders.

Voluntary county dollars have become crucial for the state's public defender system, Parrish said, pointing to a funding debate over a part-time position in Miller County.

"There was some discussion based on finances as to whether or not [the county] would re-fund that position. And they did thankfully. But if we'd lost just that part-time position down there, it would have thrown everything into chaos."

In Crittenden County, officials have allocated nearly half a million dollars a year to fund local prosecutor and public defender offices, according to County Judge Woody Wheeless. While state law requires counties to pay certain costs associated with prosecutor offices and for public defender office space and supplies, Wheeless said Crittenden County has gone above and beyond statutory requirements.

"The state in my opinion has let us down, and they're not picking up the tab," he said. "If [counties] want those services there, it's forcing the counties to include that in their budgets."

In Lee County, just finding the funds to pay for public defender supplies and offices has created a financial strain, according to County Judge Terry Sandefer. He envisioned these dollars helping with record management in district court along with other budget shortfalls.

In 2020, Washington County spent nearly $644,000 on extra public defender services. County dollars helped pay for five out of the 17 public defenders in the 4th Judicial District, according to Leana Houston, chief deputy public defender. Still, Houston said the support isn't enough to sustain her office, which oversees Washington and Madison counties.

"Each time that I meet with the quorum court to discuss our budget and our positions, they always express frustration that the state doesn't rise to meet the needs of our office," she wrote in a Jan. 14 letter. "Even with this county's support, our numbers and the demands on our time [are] extremely concerning.

Before the pandemic, Houston's office reported needing at least three additional attorneys to meet national caseload standards, according to a review of Washington County's criminal justice system that analyzed data from 2015-19.

The National Advisory Commission on Criminal Justice Standards and Goals recommends each public defender handle no more than 150 felonies per year. Legal experts have argued that even these standards, which are nearly 50 years old, may not go far enough to protect defendants' rights.

Since the pandemic flooded courts, Houston said the average number of cases handled by each attorney in her office has shot up to more than 300 felonies. In her letter, she cited one public defender who at one point was managing 526 felonies, 30 of which could result in a defendant facing 10-40 years or life in prison.

Houston has seen five attorneys leave over the past year. All quit for more money, lower caseloads and less stress, she wrote. Along with the challenges of training new attorneys, Houston's office has struggled to find experienced public defenders to represent clients accused of serious crimes.

"Felonies where somebody is looking at 10 to 40 [years] or life, those take special training and certification for an attorney," she said. "We're not able to have enough attorneys who are certified to handle those kinds of cases."

In January, two public defenders in Houston's office were juggling five "capital" cases, she said, referring to the most severe offenses that may result in the death penalty.

"The others we had to send back to Little Rock to have others appointed on them because we can't do more than that," she said.

In Central Arkansas, court-appointed attorneys were already confronting a mounting crisis.

Before the pandemic, public defenders in Perry and Pulaski counties were keeping their heads above water, said Kent Krause, chief deputy public defender. Every year, the office resolved roughly as many cases as it saw come in, though in 2016 it was seeing twice the nationally recommended maximum caseloads.

In 2020, public defenders depended on nearly $410,000 in additional funding from Pulaski County. These funds were critical in paying the salaries of a couple of inspectors and a staff member, according to Bill Simpson, chief public defender. In the past six years, Simpson has asked the county to help pay for at least two contract lawyer positions and one public defender.

In the wake of coronavirus court delays, public defenders are seeing caseloads almost four times higher than normal , according to Krause. One court division was dealing with over 300 felonies in one week .

"That's unsustainable," said Krause. "Short of a 28-hour day, nothing is going to move the elephant out of our way unless we have more resources to consume the elephant: more prosecutors, more public defenders, more courts, more judges and more court staff."

Late last year, a Pulaski County public defender, concerned by his mounting caseload, requested an opinion from the state Supreme Court's newly formed Office of Ethics Counsel. The office responded that a trial attorney confronted with a workload reasonably likely to produce ethical violations should refuse additional appointments until their caseload returns to acceptable standards.

In January, Simpson decided objecting to new cases might be the only action his office could take. If workloads do not return to ethical levels by March 1, Simpson and Krause have instructed their deputies to object to further appointments.

"I've been a public defender since 1979, and I have never refused to accept a case," said Simpson. "So this is an important decision. ... I don't want to see anyone go unrepresented."

In Northeast Arkansas, Brian Miles, managing public defender, recently received an ethics complaint that an attorney he oversees couldn't provide competent representation because of an excessive caseload. Miles said his office would address the complaint, but he didn't think the grievance was valid given that his entire staff, which manages cases in Craighead, Clay, Greene and Poinsett counties, was overworked.

"If you look at it from a whole, none of us have the ability right now to provide the level of services that we would want provided to us if we were in that situation," he said.

In 2020, Miles' office benefited from more than $45,000 in additional spending from Craighead and Clay counties. Even with extra county dollars, Miles said he would need at least three more public defenders and two secretaries to reach a manageable caseload.

Miles has already pulled his office out of a specialty court aimed at helping participants arrested on driving while intoxicated charges in district court. Although his office hadn't fully committed to this court, Miles said he had considered withdrawing attorneys from veterans and mental health specialty courts where public defenders were more involved.

After a particularly moving session in late January, Miles said he was struggling with the decision.

"We helped a lot of people, and it was one of those tear-jerker type court days," he said. "It's just hard not to do it because I love specialty courts and I just can't make that decision right now."

By most accounts, the solution to mounting caseloads is more money for the criminal justice system from the state.

Chief Justice of the Arkansas Supreme Court John Dan Kemp said it would probably be best if the state increased pay for public defenders and covered all expenses for public defender and prosecutor offices.

Rep. Jimmy Gazaway, R-Paragould, envisioned the state assisting public defenders by funding part-time positions that would entice more private attorneys to represent indigent clients. This solution, he said, could help offices that are seeking experienced attorneys.

Gazaway, who began serving in the Legislature in 2017 and chairs the Joint Performance Review Committee, said it was hard for him to speculate on funding decisions made before he took office. The former deputy prosecuting attorney noted that the General Assembly had passed bills requiring careful financial vetting of defendants assigned to public defenders. By allowing courts to assign public defenders only to those who truly need them, Gazaway said the state may have helped reduce the strain on public defender offices.

"I still believe that public defenders' offices as a whole are underfunded. They have very difficult jobs, they carry very high caseloads. I just don't think they are compensated adequately," he said. "We need to fix that."

To adjust public defender budgets, Parrish said the Arkansas Public Defender Commission makes requests during the Legislature's biennial regular sessions. While it may be possible to seek funds during the coming fiscal session, Parrish said he had never done so and wouldn't attempt it unless he received direction from the governor's office.

Gov. Asa Hutchinson said in a statement last week that he was aware of the backlog of cases across the state.

"My staff met with some officials who work in the judiciary to discuss solutions to this issue," Hutchinson said. "Continued discussions are expected in the coming days, and I am hopeful courts can develop plans which will allow them to relieve the backlog ."

Hutchinson said his office would work to provide resources if courts needed additional space for jury trials.

With the March 1 deadline looming in Pulaski and Perry counties, attorneys are hoping to find at least a short-term solution. If public defenders were to stop accepting cases, Parrish said refused appointments would likely go to his commission.

"That money is not in my budget," said Parrish. "I have money for some but not in these numbers."

Simpson and Krause hope their district will reduce caseloads by opening up alternate courts staffed by retired judges and additional attorneys. Noting that the backlog of cases affects not only public defenders but also prosecutors and judges, Krause said this solution would ease the strain faced by the entire system.

While discussions may yield a solution before the end of the month, attorneys recognize that caseloads continue to rise, putting more rights at risk every day.

"The clock has been ticking, and it continues to tick," said Krause. "Every day that goes by that elephant grows a little bit and it makes it all that much harder to resolve."

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