JACKSON, Miss. — Mississippi’s rickety system of providing lawyers to indigent people accused of crimes is rife with major failings, according to a study commissioned by a state task force.
Released Monday, the study by the Sixth Amendment Center finds that indigent defense lawyers fear upsetting the judges who appoint them if they fight hard for their clients. It also says people fall into a “black hole” while jailed between arrest and indictment, and that defenders’ pay may cause them to skimp on work.
“When a state chooses to place this responsibility on its local governments, then the state must guarantee that the local governments are not only capable of providing adequate representation, but also that they are in fact doing so,” states the Boston-based center, which advocates for the right to counsel. “The State of Mississippi has no method of ensuring that its local governments meet the state’s constitutional obligations.”
Authors call for the state to spend more on indigent defense, which could require an increase in state spending. It also calls for Mississippi to track caseloads and ban arrangements where lawyers are paid a set amount to represent an unlimited number of clients. Many counties use that arrangement to employ part-time public defenders.
Supreme Court Presiding Justice James Kitchens, a member of the task force that commissioned the study, said he wants all the counties in the state to move to full-time public defenders, a system only seven of Mississippi’s 82 counties now use.
“We are lagging very behind in our obligation to provide counsel to people who can’t afford counsel,” Kitchens said.
State Public Defender Andre De Gruy said he hopes the task force that commissioned the report will submit a bill for legislators to pass. However, bills to extend the task force have died in the current Legislature, meaning there may be no voice to advocate for the issue going forward. De Gruy’s office handles death penalty cases and felony appeals for defendants who lack money, and is supposed to train other public defenders.
If things don’t improve, the report notes the state could end up getting sued, as a number of other states have. Advocates already successfully sued a four-county judicial circuit in east-central Mississippi over courts’ failures to appoint lawyers, set affordable bail or indict people in a timely manner.
Public defenders are typically hired by judges, and risk being fired if they fall out of the judges’ good graces. Public defenders told interviewers that “You can’t make waves” in court.
“What’s the most critical finding? I think the lack of independence,” De Gruy said.
Most defenders are either paid a set amount per year to handle an unlimited number of cases with private work on the side or $1,000 per case plus hourly overhead. In either situation, lawyers have incentives to spend as little time as possible on cases to maximize income from other clients.
Perverse pay incentives are complicated by the lack of any system to monitor caseloads and prevent overwork. The report did not produce hard statistics, but estimated public defenders in many of 10 counties that it closely examined were overloaded, compared to national standards.
The report also notes that it could find no county where public defenders routinely advocate for people between their arrest and indictment. The Associated Press in 2016 highlighted that problem in the case of a woman jailed for 96 days without seeing a judge in Choctaw County.
A lack of help for public defenders is also a serious problem. Maybe most serious is that part-time and per-case lawyers aren’t provided money for investigators who can track down and interview witnesses and evaluate crime scenes. That can put the defense at a major disadvantage when compared to the resources of police, state agencies and investigators who work for district attorneys.
“We’re talking about leveling the playing field and giving defendants resources,” Kitchens said.