A limit on state hiring enacted by Gov. Sarah Huckabee Sanders last month has kept public defenders across Arkansas from filling vacancies, straining attorneys already managing caseloads above national standards.
In a letter delivered to Sanders' office Monday, Gregg Parrish, executive director of the Arkansas Public Defender Commission, wrote that losing just one attorney "impacts our court system immensely."
At the time, Parrish said 18 out of 179 public defender positions and 11 support staff posts were vacant across the state. During an interview Thursday, Parrish said he expected three more attorneys to be gone by the end of the week.
Alexa Henning, a spokeswoman for Sanders, confirmed on Friday the governor's office had received Parrish's letter. In a written statement, Henning said "this is a problem within the public defenders office that didn't start with the governor's hiring freeze.
"The public defender's office has been afforded every opportunity to hire talented individuals, and they will have the opportunity to go through the appropriate process to justify the need for these positions going forward."
Public defenders are paid by the state and appointed by courts to represent indigent defendants. As defense attorneys, they are responsible for ensuring their clients receive effective counsel as guaranteed by the U.S. Constitution. For years, Arkansas public defenders have faced mounting workloads and struggled to attract attorneys to positions that generally pay less than those offered by prosecutor offices. During the coronavirus pandemic, a moratorium on trials led to a build-up of cases that pushed many beyond ethical standards.
[DOCUMENT: Read Public defender letter » arkansasonline.com/204letter/]
While courts have reopened, Parrish said public defenders across the state are still handling more than the 150 felony cases per year currently recommended by the American Bar Association. Legal experts have argued that even these standards, which are 50 years old, may not go far enough to protect defendants' rights.
"With the numbers that we have -- the number of cases, the number of positions and crime being what it is -- we're always in catch-up mode. I don't know if we'll ever get out of catch-up mode," Parrish said during an interview Monday. "It's beyond a crisis."
'ARE WE THERE YET?'
Parrish has taken on two capital murder cases, which he said is uncommon especially during a regular legislative session. At least one district court judge with public defender vacancies has assigned Parrish to represent indigent clients. Without public defenders, courts have had to repeatedly continue cases.
"I've gotten a couple phone calls from judges and daily consults with public defender managers and the question is, 'Are we there yet? Are we there yet?'" Parrish said Monday.
The same day Parrish sent his letter to Sanders, the chief public defender in Pulaski County objected to accepting cases where a defendant may face the death penalty, saying he had only one attorney with the credentials needed to handle such cases. In a motion filed Monday in Pulaski County Circuit Court, Mac Carder wrote his office had four vacancies but Sanders' limits on hiring prevented him from filling the posts.
In his objection, Carder cited an opinion concerning attorney caseloads issued in 2021 by the state Supreme Court's Office of Ethics Counsel. The opinion, which Parrish also cited in his letter, advises that a trial attorney confronted with a workload reasonably likely to produce ethical violations should refuse additional appointments until the caseload returns to acceptable standards.
Brian Miles, chief public defender based in Jonesboro, said on Jan. 27 his office had three vacant part-time public defender positions. Another part-time attorney post his office was granted to address cases that built up during the pandemic also was vacant.
Miles said that, as a result of the hiring limit, public defenders wouldn't be available for half of the criminal dockets in a Craighead County circuit court and a Poinsett County circuit court.
[DOCUMENT: Read Public defender objection court filing » arkansasonline.com/204objection/]
In the Craighead County circuit court, around 70 defendants who face serious charges, including rape and murder, likely wouldn't have a public defender available when the next criminal term starts later this month.
"These serious cases. You can't just show up in court and cover for somebody," Miles said.
While Miles' office had started to cut into the backlog of cases that built up during the pandemic, he noted that he had recently lost attorneys at the end of last year.
"A lot of attorneys that are going to leave, they leave at the end of the year," Miles said. "When they left and we can't replace them, we're right back to trying to figure out what we're going to do."
THE FREEZE IS ON
The hiring limit went into effect within hours of Sanders' inauguration Jan. 10 when she signed an executive order prohibiting most state entities from recruiting or promoting staff.
The order provides exemptions for any positions authorized by the Department of Public Safety, Department of Corrections and federally-funded public employment efforts. It does not apply to the state's higher education institutions, the state Department of Transportation, the Arkansas Game and Fish Commission, legislative and judicial branches, and the state's constitutional officers.
All state entities included in the order are required to submit requests for hiring personnel to the state Department of Transformation and Shared Services, to the attention of the Office of Personnel Management's administrator, for final consideration by the governor's executive review.
Sanders' hiring freeze included many of the same provisions as a hiring freeze enacted by former Gov. Asa Hutchinson.
[DOCUMENT: Read Hiring freeze memorandum » arkansasonline.com/204freeze/]
Under Hutchinson, Parrish said public defenders were eventually granted a general exception to the freeze after filing several individual requests to hire attorneys and staff.
"It got to the point, I think, that so many were going over and we would call to see if they'd been granted through OPM and Governor Hutchinson that they just gave us an exception," he said.
Parrish said he did not feel it was more difficult to receive an exemption to Sanders' freeze compared with Hutchinson's freeze. He noted he had not requested exemptions for individual positions under Sanders' administration as he had under Hutchinson.
In his letter to Sanders, Parrish said he had communicated several times with the Office of Personnel Management and spoken with members of Sanders' staff at least four times for assistance in receiving a general exemption.
"All have been attentive to my concerns and more than courteous," he wrote in the letter, which the Arkansas Democrat-Gazette obtained through a Freedom of Information request.
Shortly after Sanders announced her intent to limit state hiring Jan. 10, Parrish sent an email to Cori Ammons with the Office of Personnel Management asking whether Sanders' order would include any exemptions.
"If not, can we ask for an exception on behalf of the Commission?" Parrish asked in an email obtained through a Freedom of Information request. "If this agency is subject to a hiring freeze, things will go from very, very bad to worse (if that is possible at this juncture)."
Ammons responded the office had yet to receive any information about the hiring freeze but would pass along information once it was received.
On Jan. 24, the Department of Transformation of Shared Services issued a memorandum that stated all positions which receive no more than 28% of their funding from the state's general revenue are exempt from the hiring freeze.
After learning of the exemption, Parrish emailed Kay Barnhill, state personnel director, asking if it would apply to the Public Defender Commission since the agency is funded through the State Central Services fund.
Barnhill replied the exemption would not apply to the commission since her office treats State Central Service positions the same as those funded through general revenue.
"I understand your needs and we are currently working through those issues," Barnhill said in the email obtained through a Freedom of Information request.
When asked Friday if the Department of Transformation and Shared Services expected to grant exemptions to the hiring freeze for public defenders, Alex Johnston, chief of staff for the department, said, in an emailed statement, "This is still under review."
UPHOLDING THE CONSTITUTION
In his letter to Sanders, Parrish pointed to a pamphlet he prepared in November 2021 that showed a nearly $10 million disparity in total pay for public defenders and prosecutors in Arkansas.
Parrish wrote an adequately funded and staffed public defender system does not indicate the state cares "more about an accused rights than we do those of a victim."
"It is an indication we recognize the oath we took to uphold the Arkansas and U.S. Constitutions," he said. "It is also an acknowledgement that a poor person, despite his/her crime, is afforded the same constitutional protections as the person with enormous wealth and assets who might be charged with the same crime."
Parrish noted the current national standards for attorney caseloads are 50 years old and that a study detailing new standards is expected to be published this month.
"I have very strong concerns once public defenders review this study, combine it with the ethical opinion on caseloads by the Arkansas Office of Ethics Counsel ... it opens the possibility of public defenders asserting they cannot accept additional appointments as it would violate their ethical obligation," he wrote. "Should this occur, the impact could have devastating consequences."
Last year, public defenders in Pulaski County announced plans to stop accepting cases March 1 citing unethically high workloads. Shortly before the deadline, attorneys agreed to continue taking cases, averting a potential crisis in local courts.
The Arkansas Public Defender Commission is a seven-member panel that was created to ensure adequate representation of all indigent defendants. Each member of the commission is appointed by the governor, and the commission is responsible for appointing the executive director.
Several other state agencies have requested guidance or exemptions to the hiring limit from the Department of Transformation and Shared Services for at least one position, including the Department of Human Services, Department of Finance and Administration, the Department of the Inspector General, the Department of Agriculture, the Department of Veterans Affairs, the Department of Military, Arkansas Teacher Retirement System, the Arkansas Public Service Commission and the Department of Parks, Heritage and Tourism.
Officials have approved hiring for positions for at least the Department of Human Services, the Arkansas Public Service Commission, the Department of Agriculture and the Department of Finance and Administration, according to communications received through a Freedom of Information Act request.