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Analysis: New legal challenge brings focus Mississippi's historic failure to defend the poor

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JACKSON, Mississippi — In 1997, the Mississippi Legislature's reluctance to finance a statewide public defender system prompted then-Gov. Kirk Fordice to recommend fashioning a payment plan to encourage private lawyers to handle death penalty cases — the main concern at that time.

Fordice has proposed increasing the hourly rate paid to attorneys appointed to such cases and tie the payment plan in some way to a district attorney's salary. The proposal didn't go anywhere.

By 2011, the Office of State Public Defender was created. Its Capital Defense Counsel Division assists in death penalty trials and appeals throughout the state. The Indigent Appeals Division handles all felony indigent criminal appeals.

Mississippi's failure to provide for a state-funded public defender in the local courts is at the core of the American Civil Liberties Union's federal lawsuit against Scott County, where the ACLU argues people have been held illegally in jail for as long as a year without having counsel or appointed or appointing counsel or presenting cases to a grand jury.

"Scott County jail routinely holds people without giving them a lawyer and without formally charging them for months, with no end in sight," said Brandon Buskey, staff attorney at the ACLU's Criminal Law Reform Project.

A statewide program, which would have placed a public defender in each circuit court district, was first proposed in 1995. But officials estimated it would have cost $11 million and it was not funded.

Currently, local boards of supervisors in Mississippi counties can hire and pay public defenders.

In most Mississippi counties, public defenders are private attorneys who are under contract to take on indigent cases part time. They are usually paid a flat fee.

Public defender systems are not perfect, proponents argue. The ideal would be for the number of public defenders to equal the number of prosecutors, but that doesn't happen, they say.

Arkansas has had a statewide public defender system since 1998. It was the model for a Mississippi system in 1999, but lawmakers couldn't come up with the funding for it and it never got it off the ground. The law was repealed in 2002.

Atteeyah Hollie, a staff attorney at the Southern Center for Human Rights in Atlanta, said Mississippi and other states similarly situated must take steps to assure prisoners have legal representation.

"Like many states across the Deep South, Mississippi has sidestepped its fundamental duty to provide lawyers to its poor residents charged with crimes, opting instead to saddle cash-strapped, rural counties with this Herculean task," Hollie said. "The end result is what we see in Alabama, Georgia, Texas, and Mississippi, a shocking indifference to one of our greatest equalizers — the right to counsel for everyone, regardless of income.

"These practices are not only illegal, but incredibly shortsighted," Hollie said. "Poor people languish in jails for months, and sometimes years on end without any meaningful contact with a lawyer or the court, and it must stop."

In 2014, 22 states directly funded indigent defense services, according to The National Law Journal.

Matt Steffey, a professor at the Mississippi College School of Law in Jackson, said the issue in Mississippi is money.

"It is expensive. It is a matter of costs and logistics because of the rural nature of our state. In a state like Delaware, it is not so much a money issue because of its geography," Steffey said.

Nonetheless, Steffey said in the absence of a public defender system, a person "languishes in jail ... and in some places, there's the lack of a mechanism for keeping track of those in jail."

"This is usually a problem when a defendant has no one to push their case to the attention of a judge," he said. "Clients without lawyers find their cases move slower, they are less likely to get bail or bail is higher."

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