Public defender funding: the rest of the story
By: Sen. Preston Smith, Chairman, Senate Judiciary Committee
NOTE: Smith chaired a Legislative Oversight Committee that reviewed Public Defenders'Council needs and spending.
Click to view 'Legislative report on Public Defenders Standards Council'
The Georgia Legislature created a new statewide public defender system in 2003 to fulfill its constitutional obligation to provide an adequate criminal defense for indigents.
However, there is a raging ideological debate between advocates and taxpayers over the meaning of an “adequate defense” that dramatically impacts the policy, structure, and funding of the system.
Unfortunately, the Public Defenders’ Council has used its budget to usurp the policy-making authority of the legislature by driving up the system’s costs and providing the best defense that money can buy.
This limits the system’s availability and effectiveness and makes death penalty cases like Brian Nichols’ prohibitively expensive.
Since its inception, the state’s contribution has risen from 10 percent to approximately 40 percent of the total costs while total expenditures for indigent defense in Georgia have reached $107 million, almost double the amount spent in 2000.
The recent downsizing of staff is not indicative of the failure of the legislature to fund a system. To the contrary, it is evidence that the advocates have over-built a system which does more than required by the statutes.
Instead of living within the budget established by the legislature, the Council has built a system around the concept of maximizing the expenditure of available money rather than creating one that efficiently delivers the services called for by the legislature to the truly indigent.
After perennially busting its legislatively-enacted budget, the Council manufactures a crisis and returns to the legislature with threats of dire consequences if it does not receive additional funds.
This strategy has the effect of forcing elected officials to increase funding or face a complete loss of a public service and has resulted in a dramatic budget growth as compared to other state agencies.
Since 2005, the Council’s first year of operations, the amount of state funds appropriated to the Council has increased by 36 percent.
In comparison, state funds appropriated to the Department of Human Resources increased by 23 percent and the Department of Early Care and Learning by 22 percent.
During the last Legislative Session, the Senate conducted a “zero-base budget” to determine the level of funding required for the system based upon what is mandated by statute.
Even after repeated requests for the Council to produce a ground-up budget to justify their spending, they still refuse to do so, choosing instead only to criticize the legislature without offering any alternative.
The Council and its staff have consistently misinformed the legislature and the Governor’s office, which subsequently formed the basis of policy and budgetary decisions.
Although they now acknowledge their mistake, the Council made a decision to declare a conflict of interest in a massive number of cases and outsource those cases to private attorneys who bill the state by the hour for their services.
In FY08, the Council came to the General Assembly with a mid-year budgetary shortfall of $3.6 million. The Council very publicly insisted that this was due to the more than 9,045 pipeline “conflict” cases.
While the Council was successful in convincing the Executive Branch and House of Representatives that these funds were needed, the Senate insisted on verification. Such requests went unanswered.
Now we discover, and they admit, that the number of so-called pipeline cases was inflated by more than 100 percent to justify additional spending of taxpayer money.
In reality there are currently only 4,430 pipeline cases. This was a result of 4,595 cases that were disposed of by the courts but continued to be maintained in their case management system which tallies the number of “active” cases.
These cases have ballooned their budget largely because the cost per case for private appointed counsel in non-capital felony conflict cases has increased from an average of $367 in 2005 to over $1,000 today.
The Council attributes the increase in costs to the poor internal cost containment strategies. And, unlike the previous system, since the taxpayers are picking up the tab, private attorneys do not have to factor financial considerations into their case strategy and decision-making.
Additionally, we are now told that certain “conflict” attorneys, those whose representation of a defendant is characterized by the Council as having a legal conflict in a multi-defendant case, have been bilking the state through their billable hours submitted to the state for reimbursement.
I have received one report that an assistant resigned due to the unethical billing practices in her office. One attorney is being criminally investigated for this fraud and others have unusual billing practices showing up in the audits. Another attorney reportedly billed the state more than 26 hours in a single day, which is difficult to justify even during daylight savings time!
The fact that conflict lawyers are being investigated and other offices are experiencing layoffs is the natural result of the mismanagement I have been consistently warning about.
It is undeniable that this system needs a sharp eye overseeing its management. Left unchecked, it will continue to grow into another unaccountable burgeoning state bureaucracy and the taxpayers will be left holding an empty bag.
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