Right to Counsel National Consortium Second Annual Meeting – Michael Barrett

Right to Counsel National Consortium Second Annual Meeting – Michael Barrett

Michael, what was the stresses that
your system was facing, what was the strategy you
employed, and most importantly, why did you choose
that strategy? MICHAEL BARRETT: Well sure. Just so– for
everyone’s benefit, a few months ago, we
were facing funding that was second to last
in the United States. We were 49th. Mississippi is 50th in terms
of the funding dedicated to indigent defense. Our caseloads across the
state in our 31 trial offices, made up of 376
attorneys statewide, had risen from 74,000 cases
last year to 82,000 cases. We weren’t seeing any new money. We have a very
conservative legislature that gave us the largest
increase that we’ve received in more than
two decades of 4 and 1/2 million dollars. It still wouldn’t
have advanced us from 49th to 48th in terms
of indigent funding– that’s how far down we are. But nonetheless it would have
provided substantial relief. The governor withheld
that funding from us, said that revenues weren’t
coming in as expected, and cut the money
from our budget. I perused our statutes,
600-042 sub 5, and a never before
used statute says that the director of the
Public Defender System has the authority to appoint
any lawyer in good standing in the state to represent
an indigent client. And I said, well, we’re going
to have to start using this. And shouldn’t we start
with the one person in the state that’s
causing this problem? And so I appointed the
governor, as many of you know. And that’s only because we
needed to bring attention to this problem. We needed to bring
attention to the fact that during his
tenure, from 2006, when the Department
of Corrections budget was $575 million, which is
no small chunk of change for Missouri, increased
to $727 million. This is an average of
$30 million per year. And no one blinked an eye. We needed to call
attention to this. You know, sometimes
people say, well, where’s the money for a
Public Defender System. It pays for itself. Just from the one
year, 2006 to 2007, the Department of
Corrections budget increase– just the annual increase– was $45 million. That’s $5 million more than
my annual operating budget. So we needed to pull attention
to this rising prison costs– $150 million over
10 years increase. And not a single new dollar for
the Public Defender Systems. And you start looking at
the bottom states, in terms of the bottom 10 states in terms
of public defender funding. And by and large, those are
the same states that are top 10 per capita in prison funding. So the correlation is obvious. And we needed to draw
attention to this. And I think we
succeeded in that. He hasn’t released the funding,
so we have that to deal with. But we had to resort
to that, something of a political
maneuver, because no one else was paying attention. And I think in Missouri we
got the conversation started. SPEAKER 1: And what do you see
as the strategy moving forward from this point? MICHAEL BARRETT: Well
I think the strategy for us is much like
Texas dealt with in 2008. And it became a
fiscal discussion. And I think that’s where
we are in Missouri. It’s a very fiscally
conservative state. And the argument on providing
the right to counsel because it’s the right
thing and the need to have a balanced
system of justice where there’s equal
rights under the law– that train has left the station. And it’s not resonating with
legislators and governors in my state. What does resonate is
the fiscal argument– that increase of the Department
of Corrections budget that I talked about. Also, the cost to the counties– we talked about New
York having 62 counties. And even there, for a
state of 19 million people, the general consensus is
there’s too many counties. Now by contrast, Missouri is
fewer than 6 million people and we have 114 counties– a very sparse population. And so there’s lots of counties,
and the biggest operating expense for the counties
is their local jail. Their local jail– they can’t
afford it, but they want it. And because the judiciary
kind of wholesale ignores bond limitations,
they put that– most people get if you’re poor
you get incarceration pretrial and that’s just the way it is. But the first day
that they’re in jail pretrial the county
starts accumulating costs, significant costs, particularly
if there’s a mental health issue or a drug addiction. And these are costs that these
counties simply cannot sustain. And I think Missouri is unique
in this, I may be wrong, but there is one policy
that’s at the heart of this whole problem. And that is the way that
a county in Missouri gets reimbursed for
their jail costs is if the person ultimately
gets a state prison sentence. Think about that for a moment. There’s a financial incentive
for counties to sentence someone to state prison. And so the county electeds–
the sheriff, the prosecutor, and the judge, are no doubt
at the Elks lodge on a Friday night having Bud Lights saying,
you guys, we need some money. We’ve got to balance our budget. You’ve got to give these
guys a state prison sentence. And that’s invariably
what happens. So two years ago,
or three years ago, when, during the State of
the Union and the president said that it was the first
time in recent memory where the national prison
population went down contemporaneous with the
National Crime Rate– well, Missouri
that didn’t happen. In fact, our crime rate went
up, particularly violent crime, as did our prison population. And we are now knocking on the
door of needing a new prison at $140 million plus FTEs. So my argument is
now a fiscal one. You want to avoid having to
buy that new prison at $140 million? And Missouri’s
not really looking to do massive criminal
justice reform. Well fund the Public
Defender System, which is oftentimes not
part of the conversation when we’re talking
about righting the ship on mass incarceration. Just to borrow a
simple sports metaphor, if you’re a hockey or a
soccer fan, pull your goalie. Pull your goalie
and there’s going to be a lot of balls
going in the net that shouldn’t go in the net. The same is true with the
public defender system. If you have, as we
do, 82,000 cases, which represents 250 cases
at any one time for a public defender, you cannot provide
substantive representation for them. And by and large you are just
meeting and pleading them. And the prison
population, as a result, is artificially increasing. SPEAKER 1: Most
people will agree that there is a focus
on criminal justice reform in this country. And in many ways your state
was ground zero, with Ferguson. Can you talk about how
the right to counsel plays into this larger
narrative of public safety and over incarceration and
the focus on where things are going coming out of Ferguson? MICHAEL BARRETT: Sure. As many of you know,
Ferguson gave rise to a pretty robust discussion,
not just on the use of force with respect to law
enforcement, but also the chronic and systemic
abuse of fines and fees on the indigent population. In Missouri we’re
a low tax state. The death knell
for any politician is to suggest even
in jest to raise taxes for needed services. And so the way they
fund government, particularly local government,
is through excessive fines and fees. And so in Ferguson, which is
one of 90 municipalities that make up the larger
St. Louis area, you have these very,
very small governments that represent not
a very large tax base that are entirely funded
based on fining and feeing someone. They don’t cut their lawn, $50. They don’t pay their
fee, $75 service charge, so on and so forth. And then when they
get pulled over they are invariably housed
in the local jail for however long. And then wouldn’t
you know it, when they’re too poor to
get out by making bond they’re responsible
for their own jail stay to the tune of $40 per day. So it’s a little bit
of a head scratcher. I think in addition to
the fiscal argument, we need to talk about
how public defenders play a role in the larger
public safety discussion. In the adversarial
system, public defenders, only if we’re funded adequately,
can help the system distinguish between who they need
to spend money on and who they don’t
need to spend money on. You know probation and
parole and corrections, it’s really expensive. The last thing you
want to do is waste those finite critical
resources on individuals who don’t need it. It keeps you from doing
things on the front end, like eliminating your
rape kit backlog, or executing warrants, or
solving unsolved violent crime. And so what the Public Defender
System does for the larger public safety discussion is,
through the adversarial process we’re going to
help you figure out who you don’t need
to pay attention to and who you do need
to pay attention to. And oftentimes
that’s not discussed. It’s not part of the discussion. I think we need to make
it part of the discussion.

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