The very existence of public defender offices highlights one of the greatest contradictions in our criminal (in)justice system. We like to put up the facade that our system is fair because everyone, not just those who can afford it, has the right to legal counsel if they are charged with a criminal act.
But not everyone can afford to hire an attorney. So some sort of safety net has to be erected so that those folks have the benefit of legal counsel when facing the almighty power of the state. In some places courts contract out with private attorneys to represent indigent defendants in exchange for a paycheck. In some places judges appoint private attorneys to represent indigent defendants. In some places there is a public defender's office who represents those who cannot afford to hire an attorney.
Of course someone has to foot the bill. And that is usually the county or state. In some places, such as Galveston County, if a defendant is convicted or pleads guilty he or she is charged the reduced fee paid to the attorney by the county.
Here's where the inherent problems a public defender system being. In a criminal prosecution, the government initiates the case against the defendant. The judge, however, is also a government employee who, in places like Texas, faces public scrutiny over his or her decisions (well, that, of course, assumes that the people who vote in judicial races know anything more than what party the candidate is a part of). And, for an indigent defendant, his attorney is also a government employee whose office depends on the government for funding.
In Missouri, Gov. Jay Nixon made the decision to cut funding to the public defender's office. He has repeatedly slashed funding for the office - despite reports that the attorneys are overburdened with their case loads.A 2014 study found that the office needed an additional 270 attorneys just to cover the existing case load. The state spends less than half of the national average in per capita public defense spending. The state ranks 49th of 50.
In a time of budget cutbacks, just who is going to stand up and demand more money for the public defender's office? Who's their constituency? What governor would ever listen to those who advocate for indigent criminal defendants when it comes time for allocating government funds?
But Michael Barrett, the director of the state's public defender office, had an idea. Relying on an obscure Missouri law, Mr. Barrett ordered the governor, an attorney, to represent indigent defendants in Missouri. That took some balls.
We'll have to wait to see if Mr. Nixon actually has to get his hands dirty dealing with the public. But, even if he finds a way to wiggle out of his obligation under the law, the symbolism of Mr. Barrett's actions speaks volumes.