Budget Makers Act on Public Defender Workload Study

Public defenders in Missouri were the first to endure all the pangs and toils associated with undergoing a workload study. I put it in those terms because to suggest that it may have been without sacrifice for lawyers (who don’t bill their clients) to time log how they spend their day would be misleading, if for no other reason than because having too many clients is another way of saying you don’t have enough time; so where then might someone with too many clients find additional time to log precisely how they spend their day? And why wouldn’t that time be better spent working on behalf of clients?
 
Good points all, I think.
 
But they are points to which there is a compelling counter response, one that demonstrates that all of the hard work and sacrifice is very much worth the while. It begins with “The Missouri Project,” now a completed work thanks to the tremendous effort by RubinBrown, a nationally renowned accounting firm, which spearheaded Missouri’s workload study on behalf of the American Bar Association (available at www.indigentdefense.org). This study provides great information such as how much time attorneys should be spending on a particular task in a given case type, as well as how many public defenders Missouri needs to provide constitutionally competent representation given our caseloads numbers. All great information.
 
So you’re probably wondering what we did with this ¼-inch thick report filled with numbers and accountant-speak; probably just put it on the shelf with the rest of the departmental and government reports, right, wedged somewhere between the fourth annual “Committee on Committees: Streamlining Government Through the Establishment of Subcommittees” report and, everyone’s favorite, “Control-Alt-Delete Your IT Department in 3.0 Simple Steps.”
 
After fifteen years in government, that certainly was my instinct. But after reading through this evidence-based report, and all the irrefutable data, it was clear that this study was different. And just few short months ago, during the state budget process, I saw first-hand how “The Missouri Project” generated the first evidence of long-term change in public defender funding in Missouri. Given this tremendous achievement, I thought it might be helpful, as well as encouraging, to share that experience here.
 
In years past, we made budget requests in much the same way that I suspect others do. Around March or April of each year, I walk up to the microphone and address the budget committee by saying something like: “This is what we need” or “This is what I think we need,” along with a few obligatory lines about the Sixth Amendment. In response I’d get little more than suspicion from anti-revenue, small government types, those who want to tip the scales in favor of the prosecution, as well as those who don’t want to do things “for defendants” but also don’t want to be accused of perpetrating an unjust criminal justice system.  Suffice to say, when the ‘we’ is lawyers for poor people accused of crimes, any request for more resources typically falls on ears with fingers jammed into them.
 
You see, no credible lawmaker ever disputes the premise that the poor are entitled to an attorney; instead, the divide always seems to center on how many attorneys are needed to meet the state’s mandate – we say we need more, and they say you’ve got enough.  But the workload study changed all of this. It allowed me to change how I testify before the legislature, making me a much more credible and effective advocate for indigent defense by replacing “what I need” with:
 
         “MSPD subjected itself to an audit where we required our
employees to keep track of their time in five-minute increments,
and then their work was compared with private sector attorneys
who do the same type of work. The independent, nationally recognized
accounting firm then reached the conclusion that, in order to provide constitutionally effective representation, we need . . . .”
 
. . . and then a few obligatory lines about the Sixth Amendment.
 
And while I will not characterize the response from legislators as a full-on embrace, they did recognize that – no other government department subjects themselves to a private audit; that no other government department uses objective data to drive their budget request (certainly not the prosecutors); what’s more, I’d be remiss if I didn’t point out that it also serves as a nifty little exhibit if it comes time for a lawsuit claiming the constructive denial of counsel (we are in the discovery stage of a federal lawsuit in Missouri at the moment).  
 
So then what happened?
 
Well, I won’t go into all the specifics involving our state budget process (as I’m sure it’s different than yours), but let me skip ahead to the action taken by Missouri’s Senate Appropriations Committee, along with some necessary context.
 
In Missouri, by the time the Senate starts meeting on the budget, the House of Representatives has already passed its budget. And since both houses of the legislature have to pass identical budget bills, the Senate has to go through each budget line and decide – do they go with: (1) the Governor’s recommendation; (2) the House of Representative’s position; (3) the Department’s request; or (4) do they develop their own position, knowing that any differences would have to be resolved through the joint budget committee process. 
 
Because the Senate wants to reduce the number of items they have to negotiate, deference is typically given to the House position. But after about eight (8) hours of budget committee work on everything from Medicaid to school funding to the State Lotto, they came to the public defender.
 
In front of them they had a budget bill that passed the House with an additional $1 million for the public defender over what was appropriated the year prior, albeit in the face of a 12|PERCENT| increase in caseload. But that was far better than the recommended $1 million cut that the Governor suggested. And so the best I could hope for was that the Senate would simply go along with the House number.
 
But that’s not what happened.
 
Instead, Senate Appropriations endorsed the public defender’s request, which was established based on the application of “The Missouri Project” findings to the existing PD workload, which amounted to a $23,939,583 increase over the year prior. To our knowledge, this is the first time that any state or local legislative body has used a workload study to shape a funding decision.
 
Now – spoiler alert – in the end we didn’t get what we asked for – not even close – but what we did get was some significant back and forth in the joint budget conference committee in an effort to resolve the difference between the House and Senate versions. In other words, the workload study moved the needle in a big way by providing an evidence-based assessment of what it takes for the state to meet its mandate to provide competent counsel to indigent persons accused of crimes. And, at least in the eyes of half of the Missouri legislature, it did so persuasively.