Prioritizing is hard, but somebody's got to do it

State budgets everywhere are taking a huge hit. We're all aware of hiring freezes, denial of paid CLEs, cuts in supply budgets. I'm sure most PDs have also been urged (instructed?) not to seek experts or evaluations or anything else that costs money. (The budget folks and legislatures don't seem too concerned with helping us figure out how we continue to provide our clients effective assistance of representation if we can't do anything that costs money...)

Now the spectre of the "L" word has been raised. Not that anyone has said there will be layoffs or that they're likely in the future, or even a possibility that has been discussed. Of course, it's totally illogical to lay off PDs because those indigent defendants still have to be represented somehow and the state still has to foot the bill so the state wouldn't save any money. In fact, appointed counsel arguably costs more than salaried PDs, but I'm not sure legislatures and state budget gurus get that. Maybe it's just paranoia to think about layoffs, but it's not so easy to laugh off that paranoia these days.

But here's the thing: there's really only one way to cut back on defender services. Prosecutors have to file fewer cases. Charge more things as low-level misdemeanors that don't require the appointment of counsel. Or decline to charge more cases. And, of course, there's that big ticket item: the death penalty. We'd see an immediate cut in defense spending if defender systems didn't have to pay for the experts and the records and investigation necessary to defend a capital case. If you want to pay less money for indigent defense, you just have to have fewer defendants. But as long as there are indigent defendants, the state will have to shell out money for their defense attorneys.

And there are definitely ways for prosecutors to cut back without letting violent criminals who pose a danger to the rest of us off the hook. There are lots of cases that really don't need to be criminal cases. Earlier this week, I read a story about teenagers who were charged with child pornography. Two girls and (I think) three boys, all under 18, were charged because the two girls took pictures of themselves and sent them via text message to the boys. Technically, this may fit the statutory elements of creation and/or possession of child porn. But how on earth is such a prosecution necessary? The purpose of statutes banning child pornography is to prevent children from being harmed and exploited by adults, predators. Prosecuting these teens does nothing to meet those ends. Teenage boys aren't usually predators; they're just horndogs who aren't terribly likely to voluntarily delete suggestive pictures of their girlfriends off their phones. This is a situation that should be handled by parents and maybe a school guidance counselor, but the criminal justice system doesn't need to be expending any of its precious resources on this matter.

Then there are the drug cases where someone just has to spend some time in jail for possession, even when the prosecutor believes the defendant's sympathetic story for how he came to be in possession. If you believe the defendant got stuck with the bag that his buddy foisted on him when the cops showed up or that got left in the buddy's jacket pocket, why pursue a case against the defendant? How does society benefit from that guy doing jail time, probably losing his job as a result (and being more unemployable when he gets back out)? Prosecutors need to be willing to let those cases go. The police got those drugs off the street, so call it a victory and move on to people who really should spend some time in jail.

If PD budgets everywhere are facing legislative slash and burns, the burden goes on the state to respond accordingly. Prosecutors have to make smarter choices about who to prosecute and who not to. They alone have that discretion. Just because a criminal case can be made doesn't mean it has to.

Earlier this week, the US Supreme Court heard argument in a speedy trial case. At issue was whether delays attributable to state-appointed defense attorneys should ultimately count against the state for purposes of deciding whether the defendant's constitutional right to a speedy trial has been violated. This particular case had bad facts, but I think the basic argument has merit. If a defendant has to wait 3 years for his trial date to come around because the state's PD office is so backed up, they can't turn their attention to it, shouldn't the ultimate fault lie with the state that is not adequately funding indigent defense? The state has failed to provide the defendant a speedy trial if the state creates the conditions that prevent the defendant's case from proceeding to trial.

PDs nationwide are drowning and no state legislature is willing to throw us any lifelines. So it really does fall to the prosecutors of the country to recognize the reality that they simply have to change their charging decisions. Let a few bar fights go without charging felony battery. Maybe don't press novel theories of criminal liability right now (like charging the bartender who served one or two drinks for manslaughter when a customer dies from alcohol poisoning). Investigate some cases before you file charges based on the police report. If you meet with the complaining witness before filing the felony charge, you might learn a lot faster that the cw is full of crap and won't ever be believed by a jury. Not only have you spared the court and defender some time (and therefore money), but you've also saved yourself the embarrassment of filing bogus charges based on the word of a liar. Certainly a more cost-effective result than waiting three months to dismiss the charges, after a defense attorney has made four court appearances and filed three motions.

It's when defense attorneys are stretched beyond the breaking point, can't hire experts, and have such crushing workloads that cases languish for years that innocent people get screwed or that people get much harsher sentences than their conduct really merits. Issues don't get spotted, so objections are missed or pre-trial motions don't get filed. But ultimately, control over the PD caseload falls on the prosecutors who decide which, and how many, cases to file. If PDs have to tighten our belts, so does the state. I'd hate to see the results otherwise.