Court Rules Missouri’s Waiting List for Public Defender Violate Constitutional Right to Counsel

Judge Gives Legislature Four Months to Fix the Problem

Affiliate: ACLU of Missouri
February 19, 2021 5:15 pm

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JEFFERSON CITY, Mo. — Late yesterday, a Missouri judge found that holding those charged with crimes on waiting lists to be represented by an attorney violates both state and federal Constitutions. In recent years, the Missouri Public Defender Commission, whose attorneys are saddled with enormous caseloads due to years of meager budget appropriations, and some courts began employing waiting lists in an attempt to manage the constant influx of court appointments. In February 2020, the American Civil Liberties Union, ACLU of Missouri, Roderick & Solange MacArthur Justice Center, and Orrick, Herrington & Sutcliffe filed a class-action lawsuit to end the use of these public defender “waiting lists,” which systematically and routinely deprive thousands of people accused of crimes across the state of court-appointed counsel.

In Thursday’s decision, Judge Willaim Hickle stated that “Each day’s delay in investigating for the defendant and preserving evidence accrues to the defendant’s detriment, and thus a delay of weeks, much less of months or years, violates the obligation of the State to furnish counsel to ‘allow for adequate representation’ at critical stages and at trial.”

“Judge Hickle rightfully found that indigent defendants must be provided counsel within two weeks after being found to qualify for a state-funded attorney,” said Amy Breihan, co-director of the MacArthur Justice Center’s Missouri office. “In so ruling, he noted the need for an attorney’s advice in making strategic decisions, preserving evidence, and–most immediately pressing for many defendants — trying to secure release from pre-trial custody.”

While finding the use of waiting lists unconstitutional, Judge Hickle granted the state’s request to allow the legislature an opportunity to provide enough additional funding for public defense in the budget for the state’s fiscal year starting in July to eliminate waiting lists. The judge noted that in 1972, the Missouri Supreme Court found the mechanism then employed for providing counsel to defendants was unconstitutional but gave the legislature an opportunity to respond before imposing a remedy. The legislature responded by creating that statewide public defender system that exists today.

“Before the government can take away a person’s liberty, both the Missouri Constitution and the Sixth Amendment to the U.S. Constitution require that the case against the defendant be fully put to the test. That requires the adequate representation in court, which is mandated by law,” said Jason Williamson, deputy director of the ACLU’s Criminal Law Reform Project. “Across the country states and municipalities failing to provide adequate resources to public defense systems have created an epidemic where the most vulnerable among us lack adequate legal representation to defend themselves against charges levied by the state. Missouri’s waiting lists are some of the most egregious examples of this and the court’s decision today highlights the unconstitutionality of the practice.”

Earlier this month, Governor Parson recommended the legislature approve a budget increase of $820,000 requested by the Missouri State Public Defender’s Office. That office estimated that, if approved, the increase would allow the hiring of 12 additional attorneys.

“Missouri’s use of waiting lists lets the state prosecute folks who cannot afford an attorney without the appointment of counsel to represent them,” said Tony Rothert, legal director of the ACLU of Missouri. “The practice is scandalous, and we are thrilled the judge recognized the magnitude of harm waiting lists inflict on individuals’ constitutional rights. While we respect the court’s decision to give the legislature an opportunity to finally provide enough funding for public defenders, waiting lists are a symptom of the legislature’s years of not taking the constitutional right to counsel seriously.”

The state must provide monthly status reports to Judge Hickle. The case will be back in court on July 1.

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