California commission seeks to fix broken public defense system

from Anat RubinCalMatters

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A new commission made up of lawmakers, public defenders, academics and lawyers is seeking to get California — one of only two states that does not pay for basic public defense — to begin providing resources and enforcing minimum standards for county public defender systems.

The California Independent Public Defender Commission includes three members of the Assembly and two senators — including Jesse Arreguin and Nick Schultz, chairmen of the Senate and Assembly public safety committees — as well as chief public defenders from several counties, retired judges, directors of criminal justice nonprofits and heads of organizations representing thousands of defense attorneys in the state.

“We’ve been discussing the problem with our public defense system for years,” said Schultz, a Burbank Democrat and former prosecutor who has sponsored legislation to improve public defense.

The goal is to “go through the discussion and study and come up with an actionable road map for what we need to do to build a truly robust public defense infrastructure that Californians are entitled to,” he said.

Commissioners plan to develop a five-year plan to phase in state funding, along with enforceable standards such as limits on caseloads and access to defense investigators.

A A CalMatters investigation last year found that criminal defendants across the state were routinely convicted without anyone investigating the charges against them, greatly increasing the likelihood of wrongful convictions. Many California counties don’t hire a single defense investigator who can interview witnesses, review police reports, visit crime scenes and retrieve CCTV footage. CalMatters also found that attorneys in some rural counties handle caseloads that far exceed even the most permissive standards, making them less likely than other defense attorneys to challenge the prosecution’s evidence in motions and take their cases to trial.

But the state resists getting involved. After a proposed bill that would have created a formal state commission to address the problem was abandoned, two advocacy groups, the Wren Collective and UC Berkeley’s Center for Criminal Law and Justice, decided to form an independent commission and began gathering participants who could develop and act on reforms. These types of commissions, which have facilitated significant improvements in other states’ public defender systems, are typically created by the governor.

“It became clear that this was an issue that was not a high priority for Sacramento, especially during a budget crisis,” said Chesa Budin, founder of the Berkeley Center and a former San Francisco district attorney. It also became clear, Budin said, that “there’s a huge gap between what experts understand as a crisis and the public perception of California’s government as the kind of progressive leader in the country.”

In the decades since the U.S. Supreme Court established the right to counsel in state court criminal proceedings, California has burdened its counties with the responsibility of providing lawyers to indigent people accused of crimes. Many of these counties have taken the cheapest route: paying a flat fee to private attorneys and firms to represent indigent defendants, regardless of how many cases they handle or how much time they spend on each case.

“You have some offices that have an incredibly high caliber of representation that they can provide, and you have other offices that do these flat-fee contracts where the quality is documented to be quite poor,” said Yves Brensike Primus, a law professor at the University of Michigan.

Primus is the only non-California member of the new commission. She was asked to join because of her extensive research and writing on the poor defense structure.

The Michigan Indigent Defense Commission, which was formed by the Legislature in 2013, has led to significant reforms and a significant influx of state funding.

The California commission’s work, Primus said, could serve “as a catalyst for political actors to do the right thing and start funding and improving the provision of defense for the poor, or as fodder for lawsuits that can then try to get the court system to make political actors do what is necessary to provide effective representation.”

The commission is scheduled to hold its first in-person meeting, which will be open to the public, in Berkeley in October, with additional meetings planned for Los Angeles, the Central Valley and Northern California over the next 12 months. Commissioners say they will work in subcommittees between those quarterly sessions to develop a concrete fiscal plan for the state, draft legislative language and establish minimum standards for how counties should structure their public defender offices, compensate their attorneys, provide access to experts and report on their work.

All recommendations would then have to be approved by the legislature.

This article was originally published on CalMatters and is republished under Creative Commons Attribution-NonCommercial-No Derivatives license.