Seeking Public Defender Autonomy

For example, some public defender offices are assigned more cases than they can competently handle. If the chief public defender refuses those cases, the chief may risk a contempt order, termination, or some other punishment. If the chief acquiesces, defenders will be able to spend little time on each client’s case. Those clients may then receive ineffective assistance of counsel, which is a deprivation of their Sixth Amendment right. The same dilemma occurs when public defenders object to deficient funding or support systemic changes like bail reform. Each new issue presents a Hobson’s choice of apportioning time and resources.

Public defenders are salaried lawyers of an organization. They represent criminal defendants unable to afford counsel. A few states, like Colorado and Massachusetts, have statewide public defense organizations, but most public defender offices are at the county level. Each county is its own criminal legal system that can choose to use public defenders, private appointed lawyers, or a combination of each. In some places in America, any licensed attorney can receive criminal court appointments, regardless of qualifications.

The jurisdictions that use public defenders typically get to review the choice of chief defender and the office’s budget. That authority gives those governments leverage over how the office is run. Although many understand the need to give public defenders the freedom to handle individual cases, that demarcation becomes less clear when deciding systemic issues that may be expensive for governments in the short term, even if they provide greater justice in the long run.

The first public defender office in the United States was established in Los Angeles in 1914. It was not until almost 50 years later, in Gideon v. Wainwright, 372 U.S. 335 (1963), that a constitutional right to appointed counsel in noncapital felonies was recognized by the US Supreme Court. Since Gideon, cases and laws have established rights to appointed counsel in most cases where imposition of a jail or prison sentence is possible. A public defender office is one method of meeting the mandate for appointed legal representation in criminal cases.

Neither Gideon nor other cases and laws establishing the right to appointed counsel say anything about a public defender’s role in systemic reform. The protection against retaliation for speaking up about policy comes from the First Amendment.

Right to Speak

When a chief public defender speaks up about systemic problems in the criminal legal system, there is a constitutional protection against retribution from government employers. In Flora v. County of Luzerne, 776 F.3d 169 (3d Cir. 2015), the US Court of Appeals for the Third Circuit found a chief public defender had standing to sue the county when he was fired over his lawsuit against the county for denying his office sufficient funding and staff.

The county attempted to rely upon a US Supreme Court case holding that when government workers speak “pursuant to their official duties,” they lack the First Amendment protection of citizen speech. The Third Circuit distinguished the case Garcetti v. Cabellos, 547 U.S. 410 (2006), by finding that suing the county or complaining about deficient funding was not part of the chief defender’s official duties. In other words, public defenders are hired to represent poor criminal defendants in court. When they speak about issues outside of those duties, they have the same speech rights as other citizens.

Testing the right to speak is no easy process. Governments are sometimes ready to pay money to make such disputes go away with little evidence anything improper occurred. There is also a history of successfully attacking public defense organizations without fear of consequences. In the 1990s, conservative members of Congress ended funding for federally funded death penalty resource centers, which had been representing state death row inmates in post-conviction proceedings.

Around the same time, New York City Mayor Rudy Giuliani tore up the city’s contract with the Legal Aid Society. The agency had been the city’s public defender until its lawyers angered the mayor by striking over wages. More recently, the nonprofit The Bronx Defenders almost lost its city contract when two of its lawyers assisted in making a video protesting the killing of Eric Garner. Mayor Bill de Blasio showed his support of the NYPD and their union by requiring that the lawyers be fired over the “anti-police” video.

Model Principles

There are some tenets seeking to protect public defender independence. The American Bar Association (ABA) and National Association for Public Defense (NAPD) each lists principles protecting public defense independence. Both recommend that public defense organizations be overseen by a nonpartisan board—that means a board without political affiliation, and no prosecutors, law enforcement, or active judges. Yet, it is still not unusual for local governments to have law enforcement officials or active judges on committees to hire chief public defenders.

The ABA and NAPD principles have no force of law. They are merely recommendations by bodies of experts who have long studied public defense and understand the dilemma faced by public defenders when they experience disputes with judges, prosecutors, and funding authorities. As Washington Post columnist Radley Balko wrote, “If you’re a public defender who notices prosecutorial misconduct or if you encounter a judge who sets unusually high bail amounts, speaking out on those problems could make it a lot more difficult to do your job.” For chiefs, the issues are even larger, and the disputes can be more costly.

Examples

In 2019, just two days before Christmas, Mary Moriarty had been the Hennepin County (Minneapolis) chief public defender for about five years. She reported being “baffled” to get a text from the state public defender board’s administrator that she was being indefinitely suspended. For the next three months, the board made no statement except to say they were reviewing issues that had come to their attention.

The previous year, a report from the National Center for State Courts lauded her office’s work. The report’s author later wrote to the Minnesota state board that Moriarty “runs one of the best public defender offices in the country.” Both the Minnesota ACLU and Attorney General Keith Ellison complained she had been singled out for being outspoken, particularly on issues of racial discrimination. Employees of the office and public defenders around the country signed petitions supporting the suspended chief.

After three months, the board reinstated her with a reprimand. The letter she received from the board complained about an answer she had given during a county budget hearing that county funding would be an improvement upon state funding. It said she had been “noncollaborative” with other agencies—presumably the local prosecutor. Last, it suggested there was confusion between her private and office social media accounts when discussing racial discrimination and other social issues.

When her term came up for renewal several months later, the board voted not to reappoint her. No official explanation was provided to her or to the public. The previous reprimand was not cited. About nine months later, she settled a potential lawsuit with the board for $300,000, but no reinstatement was allowed, and her retirement was required.

Amy Campanelli had been Cook County (Chicago) chief public defender since 2015 when she was up for reappointment for another six-year term. By statute, Cook County is the only Illinois county where the choice of chief public defender is in the discretion of the president of its board of commissioners, with the board’s advice and consent. The Chicago Tribune described the chief defender as “well-known for her seemingly boundless energy and fierce advocacy of indigent clients in and out of the courtroom.” She won many legal and policy victories on behalf of clients.

She and the sheriff were sued by female assistant public defendants over lewd conduct by jailed clients. However, there were no actions she could have ethically taken against her own clients, who were otherwise completely under the sheriff’s control. The county settled the case for $14 million.

The president of the board set up a committee to review the chief’s appointment. Two candidates were recommended—and neither of the two was Campanelli. The president chose one, and the board consented. Never was there a public discussion about the current chief and why she was not reappointed. The board president’s only comment was that it had nothing to do with the lawsuit.

In both cases described above, there was no public discussion nor stated official reason about why the chief defenders were not reappointed. Sometimes employers insist this is for the privacy of the employee. In neither case here did the chief defender ask for that secrecy.

Two cases below illustrate very public political battles between chief defenders and their employing counties. Both involved the issue of bail reform, which pits advocates for the elimination of money bail against an entrenched system of commercial bail bondsmen with political allies.

In Harris County (Houston), Texas, the nation’s third largest county, its first public defender office was not established until 2010. Despite published reports of the office’s high quality, the county kept the office small for years thereafter.

Previously, partisan judges chose only private lawyers to represent criminal defendants. Many of the lawyers were their campaign contributors. The private lawyers often took a high volume of cases, hundreds more than nationally recommended limits. Guilty pleas regularly occurred the same day that lawyers were appointed, even in felonies. In a couple of capital cases, it was documented that lawyers slept through portions of those trials. The practices kept individual case costs low.

In 2016, the county was sued in federal court by nonprofit legal organizations over the use of money bail in misdemeanor cases. Defendants who could not afford to pay to be released typically stayed in jail until they pleaded guilty. Commissioners court, the county’s executive and legislative body, spent millions of dollars defending the lawsuit. All but two of the 16 misdemeanor judges opposed settlement.

In 2018, the chief public defender faced calls for his firing by commissioners, mainly for supporting the plaintiffs in the lawsuit and providing information to the media. The chief was an at-will employee of the commissioners court and had only the buffer of a public defender board to recommend his tenure in office.

A commissioners court meeting was set to take up the issue. Representatives of local, state, and national criminal defense lawyers associations sent members to speak and drafted formal statements supporting the chief defender. Each stressed the issue of independence and the chief’s authority to speak up for clients and employees on relevant issues. The Houston Chronicle’s board published an editorial criticizing commissioners and the county attorney for attacking the chief and wasting millions of dollars defending the bail lawsuit.

After hearing from speakers, commissioners court voted to follow the suggestion of the public defender board president and refer the matter to the board. A few months later, the board issued a report finding the chief had done nothing wrong. Commissioners court never publicly discussed the report, and no action was taken.

In the November elections, five months later, two members of commissioners court were voted out of office. Fifteen of the misdemeanor judges were also unseated. When the new commissioners court members and judges took office, the lawsuit was quickly settled under terms that virtually eliminated cash bail for almost all misdemeanor defendants.

Two years later, in Montgomery County, Pennsylvania, the chief and deputy chief defender were fired for a similar issue. They filed an amicus brief in a lawsuit by the ACLU to appoint lawyers to criminal defendants at their initial bail hearings.

A local judge called the chief into chambers and threatened to oppose a pretrial program if the chief did not withdraw the brief. The judge claimed the brief was inaccurate and demanded the chief publicly state it was “wrong.”

The Montgomery County Board of Commissioners then ordered the chief to withdraw the brief. He did, but he and the deputy chief were fired anyway. About 100 supporters showed up to protest the terminations. The chief and deputy chief sued the county in federal court. The county, like the Pennsylvania county that lost in Flora, 776 F.3d 169, was controlled by that same Third Circuit case. Apparently realizing this was a violation of citizen speech, Montgomery County settled with the chief and deputy chief for $310,000 in damages.

Studies

There have been studies on public defender independence. The most comprehensive was issued in 2017 by a committee formed by US Supreme Court Chief Justice John Roberts regarding the federal system of public defense. That system began primarily under the Criminal Justice Act of 1964 (CJA) and consists of federal public defenders, nonprofit community defenders, and private lawyers. All are overseen by committees of judges and a division of the Administrative Office of the U.S. Courts (AO).

Called the Cardone Report for the committee’s chair, U.S. District Judge Kathleen Cardone, the report contained insight from public defenders, private lawyers, judges, and academicians. This information was gathered at public hearings across the country.

The impetus for the report was pressure put on that system in 2013 by budget cuts and reorganization of the program. The report’s main conclusion was that Congress should create a separate and autonomous entity, without oversight by judges, to administer the CJA system of appointments, personnel, and resources.

The highest body regulating the federal judiciary is the Judicial Conference, chaired by the chief justice. The Cardone Report was not then adopted by the Judicial Conference. About a year later, the AO sent out a memo stating some of the report’s interim recommendations had been adopted by the Conference, mostly about training. A year later, another memo was issued, again adopting some items but leaving the issue of independence largely unaddressed. Five years later, the main recommendation is still allegedly being reviewed.

Despite the oversight by federal judges, the CJA is considered to honor defender independence better than many other legal systems. In Texas, persons incarcerated in state prisons are represented by State Counsel for Offenders (SCFO) when charged for crimes within those prisons. The governor appoints the Texas Board of Criminal Justice. That board appoints the chief defender at SCFO and the director of Texas prisons, the Texas Department of Criminal Justice. In other words, one board oversees both the prisons and the legal representation of those incarcerated there.

A former chief of the SCFO trial division argued to the board that interference from state prison officials made it impossible to competently represent defendants in the prison system. A 2017 report by the State Bar of Texas Legal Services Committee to the Poor in Criminal Matters confirmed those problems. Surveying current and former SCFO lawyers and the prosecutors in their cases, an overwhelming majority believed SCFO lacked operational independence, and this hampered its ability to represent clients. A similar majority agreed SCFO lacked resources or discretion to adequately represent clients. Respondents gave examples of being discouraged from subpoenaing prison officials and lacking private communications with clients.

Remedies

Examples of public defender organizations with relative autonomy are the Public Defender Service (PDS) of Washington, DC; The Bronx Defenders; and the Office of the Colorado State Public Defender. Each is a different type of organization in a different kind of jurisdiction. PDS covers Washington, DC, and is funded by the US Congress. The Bronx Defenders is a nonprofit working in a New York City borough and is funded by government contracts, grants, and private money. Colorado’s public defender works across the state in urban and rural counties and is funded by the state. All three organizations are known for adequate funding, controlled workloads, and independent leadership.

Because public defenders will always rely on some government authority to fund their work, there is no single solution to public defender independence. However, there are some methods that have worked to help assure autonomy for public defenders.

Some potential ways to protect autonomy are structural. They affect the position of the public defender in that jurisdiction. The ultimate structural change would be that recommended in the Cardone Report—a separate entity that adequately funds and staffs public defense. To date, neither the federal government nor any state has fully embraced that vision.

Another idea is the “defender general.” The concept is to have a national position to represent the interests of public defense providers. It would not be a mirror to the attorney general, who can issue broad edicts applicable to all subservient prosecutors. Mandates of the defender general could not disadvantage any individual defendant. However, a defender general could be a national clearinghouse for best practices, grant funding to local offices, and a bully pulpit for defender independence.

Other potential protections are cultural. The adoption of “participatory defense” and “holistic practices” are two. The former organizes persons facing criminal charges, their families, and communities to assist one another and to advocate for systemic reform. Typically coordinating with public defenders, these groups assist clients and families deal with individual cases and support policies that protect public defenders.

Holistic practices are those that assist clients beyond the parameters of their criminal cases, of which representation traditionally has lasted only from appointment until disposition. It means addressing all the aspects of clients’ lives that bring them into the criminal legal system and prevent them from getting free from it. Areas like employment, benefits, school, immigration, and housing can all be pressures that set clients up for failure. Many are civil legal aid specialties that have needlessly been divorced from public defense. Both participatory defense and holistic practices engender community support that protects defender independence.

Internal changes, like a diverse and supportive oversight board, can buffer the role of government regarding its oversight. Ideally, the members are nonpartisan community leaders, lawyers, and those directly affected by the system who believe in the mission of public defense. They should have no conflicts with the office, such as private lawyers who receive court appointments in the jurisdiction.

Legal changes can also increase defender autonomy. Legislation can give legal protection to independence, such as mandating the composition of public defender boards be nonpartisan and exclude prosecutors, law enforcement, and active judges. Lawsuits are effective vehicles, particularly when litigated by outside nonprofit legal organizations, to address systemic reforms, such as funding, workloads, and practices that unconstitutionally disadvantage criminal defendants. Both can increase public defender independence.

Conclusion

Public defenders need adequate funding and reasonable workloads, but that is not enough. To truly competently represent clients, they need a degree of autonomy that cannot be assured if they must speak and act in lockstep with the governments that fund them. There are structural, cultural, and legal devices to help establish public defender independence. There is no one single solution, but many should be employed.