Miscellaneous

Funding Constitutional Mandates

By Anne Skove, Esq.

Everyone's in a budget crunch. Courts are no exception. The indigent defense system is fast approaching indigency itself.

Awhile back, Rick asked how can this be? The best teachers ask the best questions.

The easy answer is that non-essential services are first in line for cuts. Mediation, for example, is wonderful, but if it is required at all it is by court rule. Metal detectors make court users feel safer, but how many are needed? Although educational trips for judges and court employees expose them to new ideas and help them think outside the jury box, travel allowances are commonly cut in hard times. Jurors, while still paid miserably in many jurisdictions, may not see a raise any time soon.

But the right to legal representation for the accused? Can that be cut?

Yes and no. Budgets, certainly, may be and often are cut. Screening prospective clients to ensure that they meet indigency standards is one tactic; whether this is cost-effective or just a feelgood measure for taxpayers remains to be determined.

How low can they go? At some point the understaffed offices protest. Kentucky's public defender system is currently under more duress than usual. Budget cuts forced (they maintain) the Department of Public Advocacy to withdraw from some cases. The Department sued the state and legislature for more funding in order to fulfill its constitutional mandate.

Now, the executive branch is asking for an injunction to make the Department keep the cases, claiming it inflates its caseload, is inefficient, and needs to collect from defendants to the extent allowed by law.

Part of the problem is that there is no uniform method of counting cases. This is worse than the usual case-counting problems we've encountered; here, the prosecutors, courts, and defenders count cases differently. (Those of us who can't count frequently end up in law school.)

And yet, case-counting is not necessarily a cure-all. Even if everyone were to agree that one defender plus one defendant (rather than one charge) equalled one case, it's obvious that one capital case is a lonelier number than one garden-variety felony. The letters DCM come to mind.

As for collecting fees, even if it were a successful venture (blood, turnip), the PDs say doing so would only make the state find room for more cuts.

We dub this game "non-profit ping pong," but it might as well be called blind man's bluff. It's being played out across the country with jail cells, mental hospital beds, space in treatment programs, electronic monitoring bracelets, and human resources. The stakes are high and getting higher all the time, and the budget is plummeting fast. Stay tuned.

See State Wants Defenders to Stop Refusing Cases, Brandon Ortiz, Herald-Leader (July 24, 2008). See also Evaluating Court Processes for Determining Indigency, Elizabeth Neely and Alan Tomkins, Court Review (June 2007).

Full post as published by court-o-rama.org on July 24, 2008 (boomark / email).