Last month, Missouri’s waiting lists for public defenders were declared unconstitutional. Cole County Circuit Court Judge William E. Hickle ruled that the Missouri Office of State Public Defender violated the constitutional rights of indigent people awaiting trial by forcing them to wait for weeks, and even months, before being assigned an attorney.
The waiting lists were first created in 2017; within two years, nearly 600 Missourians had been waiting for a lawyer for more than a year. Many of them did that waiting in jail.
The list has shrunk in recent months, as has the number of people being detained while waiting for trial during the pandemic. But 1,934 defendants were still waiting for lawyers as of last month.
Hickle’s ruling states that’s a big problem. If the state hasn’t assigned indigent defendants an attorney within two weeks, he wrote, it’s violated their 6th Amendment rights, as well as their rights under the Missouri Constitution.
“It’s not good enough to get a lawyer six months later, or a year later,” explained Tony Rothert, legal director of the ACLU of Missouri, on Friday’s St. Louis on the Air. The ACLU brought the case along with the Roderick & Solange MacArthur Justice Center and the law firm Orrick, Herrington and Sutcliffe LLP. “And it’s not just having to go to bond hearings without representation” — leaving defendants less likely to be released pretrial without a lawyer to advocate for them. “It’s also that there are certain decisions that have to be made quickly, or you lose them. Like the right to ask for a change in judge, like you have in Missouri. If 30 days passes, you’ve lost that right. That can make the entire difference in a case. Or a change of venue.”
The judge also noted that it can be much harder to investigate the facts of the case if the defense attorney doesn’t come on board until months or a year later.
But getting all the state’s indigent defendants a lawyer within two weeks of their arrest means the state needs more public defenders. And that costs money.
Hickle issued a stay in the lawsuit that effectively puts everything on hold until June 30. As his ruling makes clear, the next steps do not rest with the Legislature.
Gov. Mike Parson has submitted a budget that includes another $820,000 for the public defender’s office — enough for 12 attorneys.
State Rep. Tony Lovasco, R-O’Fallon, said he would like to see even more funding. “This is an important issue to me, certainly,” he said. “Regardless of this court ruling, I think it’s very clear we have not been funding the public defender’s office adequately for some time. Just common sense suggests that when you have people waiting months just to get a lawyer, you’ve clearly got a supply and demand issue there.”
Lovasco suggested that the problem was less antipathy for the public defender’s office and more the difficulty of adding funding for anything. To keep the state budget balanced, that means taking away funding from something else.
Still, he said: “Just off the top of my head, I can think of a litany of items that we have spent more than that on that I would think are nowhere near as important. We spent almost half a million dollars to clean the statue at the top of the Capitol. I feel like we can do better to make sure people have their constitutionally mandated right to counsel.”
Rothert said Hickle’s ruling makes clear that the Legislature must act or face potentially more costly consequences. “What that is,” Rothert said, “we don’t know.” It could mean judges simply dismiss charges against defendants when an attorney is not available, or that the state has to pay private attorneys to handle their cases.
“The court is right, that this is something the Legislature needs to take responsibility for,” he said. “It’s unfortunate that it’s falling on this Legislature [after] neglect for decades, at a time when revenues could be affected because of COVID and there’s all these unusual expenses. But something has to happen. People’s rights are at stake.”
Beyond the immediate imbroglio, Lovasco suggested there’s hope on the horizon. As vice chair of the House Special Committee on Criminal Justice , he believes there’s growing agreement among his fellow Republicans that too many people are being locked up unnecessarily, which could lead to changes to address the “demand” side of the issue.
“The wheel has definitely turned more in favor of criminal justice reform in general,” he said.
“St. Louis on the Air” brings you the stories of St. Louis and the people who live, work and create in our region. The show is hosted by Sarah Fenske and produced by Alex Heuer, Emily Woodbury, Evie Hemphill and Lara Hamdan. The audio engineer is Aaron Doerr.
