Fully fund public defense — or violate Constitution
The United States Constitution guarantees that in all criminal cases, a person has the right to a lawyer, even if he or she cannot afford one. The Supreme Court affirmed this basic principle with respect to felonies more than a half century ago in Gideon v. Wainwright. Subsequent Supreme Court cases have made clear the right also applies to misdemeanor prosecutions and that the right to the assistance of counsel means the right to the effective assistance of counsel. This right is not fulfilled when a defendant who cannot afford to a hire a lawyer is assigned a lawyer who lacks the time and resources to provide effective legal advocacy.
In New Mexico, lack of funding for public defense and overwhelming caseloads have converged to create a constitutional crisis in which the citizens of New Mexico often receive the right to counsel in name only. The Legislature has the opportunity and the obligation to fund public defense fully, providing the citizens of New Mexico what the Constitution guarantees: the effective assistance of counsel.
New Mexico, like many states, has struggled in recent years to create a balanced state budget that adequately funds government programs. But even before hard economic times complicated the budgeting process, public defense services were underfunded, leading to too few attorneys to represent too many defendants. Caseload numbers in most places in New Mexico are two to three times higher than caseload standards set in 1973 by the National Advisory Commission on Criminal Justice Standards and Goals, which themselves are often criticized among legal experts as being far too high given the increased complexity of criminal defense practice in the 21st century.
New Mexico’s Public Defense Department and the Commission have asked for roughly 100 percent increases in funding in recent years to cover necessary costs to make the system work properly, which includes money for additional attorney positions as well as essential defense staff such as investigators, paralegals and social workers.
But these requests have gone unmet. Instead, state legislators continue to push “tough on crime” legislation that creates new crimes or higher penalties, only increasing the need for public defense services in the state. The lack of funding for public defense is especially felt in cities like Hobbs, where already-high caseloads are expected to rise by 15 percent this year. The city has put funds toward more police officers, leading to additional strain on the courts.
The New Mexico Public Defender Commission has approved performance standards designed to ensure that public defense attorneys provide “zealous and quality representation to their clients at all stages of the criminal process.” The standards, unfortunately, cannot be met by most hardworking, well-intentioned attorneys because there are simply too many cases. As a result, some traditional markers of effective representation are routinely not present.
Faced with an inability to meet constitutional standards of adequate defense representation, the New Mexico public defender has sought to decline cases and to withdraw from cases assigned by the courts. This course of action has drawn criticism from prosecutors, who see it as an abdication of the public defender’s statutory duty to provide representation to those who cannot afford it. But a statutory obligation to provide counsel does not trump the constitutional obligations to provide effective counsel. Where the statute and Constitution come into conflict, the Constitution must win.
If the public defender is to provide effective, constitutionally mandated representation, one or both of two things must happen: The number of cases brought by the state must be reduced, and/or the level of funding must be increased to hire additional attorneys and bring the caseloads to manageable levels.
Failure to find a solution that allows public defense attorneys to provide effective representation cheats the people of New Mexico of what the Constitution guarantees them. It also exposes the state to the threat of costly litigation. If the Legislature does not find a solution, the courts will likely impose one. Courts in other states have recently held that a lawyer who is a lawyer in name only is no lawyer at all. Barry J. Pollack is president of the National Association of Criminal Defense Lawyers.