Senate OKs slight hike in public defender fund

LITTLE ROCK — The Arkansas Senate unanimously approved a slight increase in spending authority for the state Public Defender Commission on Wednesday while court officials met across town to discuss the growing problems spurred by mounting caseloads for court-appointed attorneys.

While Senate Bill 27 included only routine increases for salaries and benefits, Sen. Jonathan Dismang, R-Searcy, told senators that state officials are working on a possible “fix.”

“There may be a request to shore up things later in the session,” he said, adding he doesn’t have details about what the request would be.

State Rep. Jimmy Gazaway, R-Paragould, said Wednesday that legislators were waiting to hear from attorneys and court officials before settling on a solution.

“We need to know exactly what they want,” he said.

Court-appointed attorney caseloads were thrust to the forefront last month after an opinion from the Arkansas Supreme Court’s Office of Ethics Counsel. The office opined that attorneys should refuse new cases if their caseloads were likely to produce ethical violations.

State law doesn’t provide a concrete number of cases that attorneys can ethically carry, but national standards, like the one from the American Bar Association, recommend attorneys handle no more than 150 felony cases per year.

Some public defenders in Arkansas have more than 500 felony cases on their plates. The caseloads and court backlogs have called into question whether defendants’ constitutional rights are being honored.

State officials may be able use coronavirus relief funds to alleviate the current, unprecedented backlog of cases, which built up largely due to court delays during the pandemic. Legislative leadership might also tap into other funding streams to address staffing and funding challenges public defenders faced before the pandemic, though Gazaway said these solutions may have to wait until at least next year’s regular session.

While courts across the state have reported excessive caseloads since the start of the pandemic, addressing the backlog in Pulaski and Perry counties is particularly pressing as public defenders have announced plans to stop accepting cases next month. If caseloads do not return to ethical levels by March 1, Bill Simpson, chief public defender, said he would instruct his deputies to object to new cases and transfer around 3,000 cases out of his office.

“I’ve been a public defender since 1979 and I take the right to counsel — the right of every client to have competent representation — I take that extremely seriously,” Simpson said during a meeting with Pulaski County court officials on Wednesday.

Each public defender should manage around 120 cases — about a fourth of the office’s current average caseload — to meet the constitutional rights of clients, according to Simpson.

Public defenders have suggested opening two to three alternative courts staffed with additional judges and attorneys. But since proposing this plan last month, Simpson said officials have made little progress.

“So far, we have not received direction from the governor or anyone else that there might be relief on the way,” he said. “If there is, if there’s a concrete plan to … fix this situation, I’d be more than happy to pump the brakes on this.”

Pulaski Circuit Court Judge Leon Johnson said court officials were looking into Simpson’s proposal. He noted, however, that it might not be possible to open up three new courts.

“We have to make sure we have the resources,” said Johnson. “You maybe able to get one or two judges, one or two prosecutors per court. That’s it. There won’t be seven per court or five public defenders per court. There may only be one or two.”

In a statement on Tuesday, Gov. Asa Hutchinson said the state might be able to use coronavirus relief funds to address the backlog of cases. The Republican governor said state officials were still working to understand the scope of the excess workload.

Simpson noted the local solution would have to be a part of a broader statewide response as public defender offices across Arkansas are struggling to shoulder current caseloads.

The backlog of cases has also strained prosecuting attorneys. John Johnson, Pulaski County deputy prosecuting attorney, told court officials Wednesday that his office has seen an attrition rate of over 50% since September of 2020. That morning, John Johnson said another one of his attorneys had quit. While public defenders may be able to object to new cases, John Johnson said this option was not available to his office.

“I think that there has to be, between the judges and the public defenders and the prosecutors, sort a divide and conquer approach,” he said.

To advance a statewide solution, John Johnson said he hoped to organize a meeting with public defender and prosecutor coordinators today.

Circuit Judge Karen Whatley, former chief legal counsel for Hutchinson, recommended nailing down a plan before going to the governor’s office or the Legislature.

“It’s better to go with a plan … not we’re presenting various solutions,” said Whatley.

Were Pulaski and Perry County public defenders to begin objecting to cases on March 1, the responsibility of assigning attorneys to those cases would likely fall to the Public Defender Commission. While commission Executive Director Gregg Parrish said there was too much uncertainty for him to know how the commission might respond in March, he said he didn’t have the funding to address the offload of cases.

“No matter what happens, my budget doesn’t have the money for this,” he said.

Under SB27, the Public Defender Commission’s appropriation would include $26,650,664 in spending authority and a maximum of 258 employees for the trial public defender office in fiscal 2023 that starts July 1. It would provide $3,135,034 in spending authority and a maximum of 20 employees for state operations.

Under Act 1007 of 2021, the commission’s appropriation includes $26,628,008 in spending authority and a maximum of 258 employees for the trial public defender office. It provided $3,132,449 in spending authority and a maximum of 20 employees for state operations in fiscal 2022 that ends June 30.

The Senate voted 33-0 to send SB27 to the House of Representatives for further consideration.

Some public defenders in Arkansas have more than 500 felony cases on their plates. The caseloads and court backlogs have called into question whether defendants’ constitutional rights are being honored.