Criminal Justice

Missouri's Public Defenders are so Overwhelmed it's a 'Constitutional Crisis'

A new ACLU lawsuit against Missouri is just the latest to expose how poor defendants across the country are effectively denied their right to an attorney.


David Pulliam/MCT/Newscom

Missouri resident Shondel Church sat in jail for 42 days after being arrested for felony theft in 2016 before he saw a court-appointed attorney. Church had a winnable case, the attorney told him, but there was a problem: It would be six months before the public defender had time to go to trial.

After spending three more months in jail, and looking down the barrel of three more without a job or a way to support his family, Church pled guilty to a misdemeanor charge.

In a federal class-action civil rights lawsuit filed Thursday, the American Civil Liberties Union says cases like Church's are disturbingly common in Missouri, where the public defender system is so underfunded and overburdened that it has created a "constitutional crisis" in the state.

"In jail, you're starving on what they give you and you're dying to get out," Church, the lead plaintiff in the ACLU lawsuit, said in a statement Thursday. "I was hoping things would move faster—but those 129 days cost me a whole lot: I lost all that time working, and I finally had to give up and plead guilty, just to get out and help my family."

As the Miranda rights spiel says: You have the right to an attorney, and if you cannot afford an attorney, one will be provided for you. The Supreme Court established the Sixth Amendment right to an attorney for indigent defendants in the 1963 landmark case Gideon v. Wainwright.

But across the country, civil rights groups say poor defendants often languish in jail without legal representation, and that harried public defenders barely have time to review cases before going to trial. A similar class action lawsuit was filed in Louisiana last month, where civil rights groups say public defenders offices are so underfunded that last year 33 out of 42 of them could not take on new cases or had to place clients on waiting lists. The ACLU is pursuing similar litigation in Utah, California, and Idaho.

The ACLU claims in Thursday's lawsuit that the Missouri State Public Defender Service, which ranks 49th out of 50 in terms of funding, is so inadequate that it violates poor defendant's Sixth Amendment rights to representation. The 370 attorneys working for the service have a load of more than 80,000 cases a year. A 2014 study by the American Bar Association found that in 97 percent of cases, Missouri public defenders failed to meet the ABA's recommended minimum hours to effectively represent their clients.

"For three decades, the state of Missouri has known about the failings of its public defense system," Anthony Rothert, Legal Director at the ACLU of Missouri, said in a statement. "This chronic underfunding has resulted in an equally chronic constitutional crisis in Missouri that has cost the livelihood of thousands of Missourians who are denied justice because their attorneys couldn't devote the necessary time or resources to their cases."

Last year, the director of the Missouri State Public Defender's Office, Michael Barrett, attempted to order former state governor Jay Nixon, a barred attorney, to represent an indigent client. Barrett's move was in protest of what he called ruinous budget cuts to the defenders office.

The Missouri public defender system sued Nixon last July for withholding $3.5 million of a $4.5 million funding increase. Barrett estimated the state would need 289 more attorneys to meet the hours-per-case guidelines recommended by the ABA.

In a statement to Reason on Thursday's lawsuit, Barrett says:

I've done everything short of setting myself on fire to draw attention to the situation that the state has put us in. That poor persons in this state, including poor children, are being pushed through the criminal justice system, fined excessively, and deprived of their liberty, without receiving the benefit of an attorney who has the necessary time to look into their case. Despite their claims of support for liberty and against big government, the state has chosen to neglect an indigent defense system that ranks 49th in the U.S. while enthusiastically spending more than a $100 million in new money on incarcerating the very citizens who were deprived of their right to counsel.

This issue has been studied countless times by numerous task forces, the American Bar Association, a national accounting firm, and the U.S. Department of Justice—all with the same conclusion—that the public defender needs twice its number of attorneys to handle the more than 80,000 cases that it is constitutionally responsible for each year. The state has very few constitutional obligations, but it has instead focused on adding state parks, increasing salaries for judges, and forming committees and task forces to study ad nauseam what we already know. It's time for some leadership.

The Missouri Governor's Office did not immediately respond to a request for comment.

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  1. Get arrested like a thug, twiddle your thumbs in jail like a thug.

    1. Sit in jail innocent until proven guilty, like a thug.

      1. Way to step on the joke, CJ. You must be new here.

        1. Sorry, every time I write one of these articles, someone tweets at me, “Don’t do the crime if you can’t do the time hurrr durrrr.”

          So I can’t tell when anyone is joking anymore.

  2. a barred attorney

    Did he pass the Bar, or was was he ordered out of court by judicial edict?

  3. I’m sure the solution will be less bureaucrats and less expense to the taxpayer.

  4. ARRRGGGGHHH! This is despicable! This, boys and girls, is a real, gen – u – wine scandal, and which is getting exactly no attention. Thanks for covering this; I will post to my Facebook and Twitter accounts just to annoy all of my friends. And in the futile hope that someone actually notices.

  5. Oddly enough, we have the right to an attoneys labor but not a doctors. This parallel just now occured to me. Uh oh. Thats a little awkward.

    1. We only have a right to an attorney’s labor when it’s the state that comes after us.

      1. And only in criminal cases, not civil.

        1. There are not actually many ‘crimes’ against the state. Common law existed long before parliaments/legislatures. Hence it preexists laws re murder/etc. The only legal purpose for criminal laws is that it provides a legal basis for the state itself to judge/penalize the act and override the victim’s ability to either seek their own redress preemptively before a court or in a lynch mob.

          1. I rather like having an ‘impartial’ middleman between me and my accuser.

          2. Don’t know about your state, but Texas has 30 legal codes full of “crimes against the state” including:
            Agriculture Code
            Alcoholic Beverage Code
            Auxiliary Water Laws
            Business and Commerce Code
            Business Organizations Code
            Civil Practice and Remedies Code
            Code of Criminal Procedure
            Education Code
            Election Code
            Estates Code
            Family Code
            Finance Code
            Government Code
            Health and Safety Code
            Human Resources Code
            Insurance Code
            Insurance Code – Not Codified
            Labor Code
            Local Government Code
            Natural Resources Code
            Occupations Code
            Parks and Wildlife Code
            Penal Code
            Probate Code
            Property Code
            Special District Local Laws Code
            Tax Code
            Transportation Code
            Utilities Code
            Water Code

      2. Also, they volunteer for the public defender’s office.

        1. But the government is also constitutionally obligated to provide one, volunteer or otherwise. 0.o

      3. This is true but isn’t the state, in most criminal cases, acting on its citizen’s behalf? For instance, if someone breaks into my house and steals my hard earned stuff then he is also entitled to my hard earned money to pay for his defense? And because the state can’t attract enough attorneys in to public service because of the pittance it pays I should give more of my hard earned money to ensure that the person who stole my stuff is adequately represented? Sounds like I am getting screwed twice.

        1. Yes, but just the tip.

    2. You have the right to lots of different people’s labor. Cops, lawyers, judges, teachers, sanitation workers, construction workers, government-funded scientists, not to mention legislators and the president. It’s just not a problem you should worry about. But you are going to worry about it because you don’t want to deprive yourself of a talking point that supposedly justifies a specific way of doing civilization that nobody is allowed to question. It’d be easier just to say “because God says so, bitch.”

      1. You have the right to lots of different people’s labor. Cops

        SCOTUS disagrees.

      2. Cops, lawyers, judges, teachers, sanitation workers, construction workers, government-funded scientists, not to mention legislators and the president

        Somebody ought to pay those people when they do that work they signed up to do!

        1. Doctors and nurses “sign up” too.

          1. Is there a point somewhere down this road?

          2. Doctors and nurses are public employees? I thought it was called “private practice” for a reason.

            1. Now we’re being pedantic.

      3. You have the right

        You keep using that word. I do not think it means what you think it means.

        1. You actually do have a constitutional right, currently, to an attorney’s labor. Yes, or no?

          1. You have the *right* to have the assistance of counsel – the Constitution doesn’t actually mandate that anyone must provide said counsel.

            1. So the government can give you zero attorney and that passes constitutional muster? This is false. Does it matter if it’s limited to state cases? Should we not be against it? Why, or why not? Genuinely curious.

              1. The government can give you zero attorney and that passes Constitutional muster if you aren’t indigent.

                Your right to counsel is a right against the government, not a right against any given attorney. You can (in theory) compel the government to allow you counsel, but you can’t compel the service of any lawyer you choose.

                1. I know it’s a day late, but this is more or less what I came up with in the sense that the government is given the power to pay a lawyer for their services on your behalf but can not compel a lawyer to do so against their will.

    3. I was just thinking the same thing. Just to make the awkwardness last a bit longer:

      If the ultimate penalty for ‘something’ is death; then we have the right to an expert (attorney) to advocate in our interest while ‘the system’ is presumably trying to judge whether we did it and kill us.

      If the ultimate penalty for ‘something’ is death; then we have no right to an expert (doctor) to advocate in our interest because ‘the system’ is assumed to be trying to keep us alive at all costs.

      1. Indeed, my comment was a genuine realization and I’m honestly going to think on it for a while. There have already been some interesting takes on this, I was curious to see where it went.

        1. As I was thinking on it even further re what ‘the system’ can actually be doing to us in each of those circumstances.

          In the former the accusation might be ‘cut someone with a knife and injected them with chemicals’ – but the accusation is a malign purpose even if the outcome is not death.

          In the latter ‘the system’ may itself be cutting you open with a knife and injecting you with chemicals – and the outcome may even be your death – but the purpose is deemed benign and consensual even if you were unconscious/delirious/crazy the whole time.

          Maybe the solution is to identify knife-wielding psychopaths early and send them to med school. So that they learn how to develop and sell their skills.

    4. Lawyers made up the game and made it so complicated that we need their assistance to navigate it. That’s why they are on the hook for the indigent. Doctors did NOT make up the game. You would get sick if nobody ever learned word one about medicine.

  6. The state should spend the exact same amount of money on the defense and the prosecution of a man PERIOD.

    I don’t think you should have to even need to pay an attorney. I think it should be funded by the state but if you loose you are on the hook for the bill with any criminal penalties. This way all proven innocent people have 0 financial harm from attorney fees and if the state looses the case they pay damages to the innocent person.

    This would make them take criminal cases seriously instead of using the process as a punishment to ruin lives.

    1. You sure about that?

      1. it would significantly reduce their budget in criminal cases and slow them down reducing their overall harm and give people a much better chance.

    2. This way all proven innocent people

      There aren’t any “proven innocent” people. The finding is “guilty,” meaning the state has proven its case beyond a reasonable doubt, or “not guilty,” meaning the state was unable to prove its case beyond a reasonable doubt. “Not proven guilty” is a long way from “proven innocent.”

      1. You have the presumption of innocence in all criminal cases in the USA. Guilt must be proven beyond a reasonable doubt by a trier of fact, like a jury or judge in a bench trial. Guilt must be proven to each element of the crime and if the trier of fact cannot find guilt beyond a reasonable doubt, then the trier of fact must acquit.

        As the state has a right to prosecute crimes, defendants have a right to effective assistance of counsel.

      2. if you aren’t proven guilty than you are innocent my point remains the same.

        Again the problem is the process is as bad as being charged. Spend every second of your day for 2 years, spend all your money, loose your job and be off the hook? How is that not a fucking punishment.

        The state should fund your defense and if the state fails to prove your guilty you can also counter sue for damages/restitution and it should be handed out like candy.

        This would greatly reduce the amount of cases they take. and greatly reduce the amount of innocent people being trolled!

        It isn’t perfect but would be a shit ton better than now.

    3. There are plenty of innocent people found guilty and guilty people not convicted for that plan to not quite work out.

      Everyone should get bail that is not excessive like the 8th Amendment says. All crimes $10. if you fail to show for court, no bail or bail rates that they currently set. Setting excessive bail is how they keep people from fighting cases because they want out of jail, cannot afford bail and cannot get a fair speedy trial.

      I am for everyone getting a speedy jury trial in 30 days. This prevents punishment for taking cases to trial and forces prosecutors to decide resources for who is worth prosecuting and who should have charges dropped. This also forces the public defenders to prioritize cases for who is coming up for trial and not convincing defendants to sit in jail because the “attorney is not ready for trial yet”.

      The state prosecutes crimes, so they get “x” budget. Public defenders should get the same budget. If they don’t need the entire budget it carries over for the next fiscal year.

      1. Thats exactly what i am saying except people should get restitution too for damages. even 30 days cases a lot of harm.

        1. Suing the state for failed prosecutions when there is probable cause that a person committed a crime might chill prosecution of crimes.

          I get what you are saying but I think the solutions are judges requiring actual probable cause at probable cause hearing within 24 hours to hold people for trial, low bail and the public defender’s offices be properly funded. There is no right to not be prosecuted. Common law allows for liability with malicious prosecution. Probable cause is the standard set forth in the constitution but it is typically held as a joke to judges, prosecutors and police these days.

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  8. Tell the State, “Once you have him in jail you have a fixed amount of time to bring the accused to trial. If you don’t get him a lawyer in that time, you lose your chance and must let him go with a “not proven” on his record.”. It should cut down on the number of bullshit nickle and dime charges made.

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