The state legislature has until June 30 to eliminate public defender waitlists for impoverished individuals accused of a crime.
That’s because the practice of employing waitlists to assign a public defender is unconstitutional, according to Phelps County Judge William Hickle’s Feb. 18 order.
“The State violates the Sixth Amendment (and the Missouri Constitution equivalent in Article I) by charging an indigent defendant with a crime in which the State seeks the defendant’s incarceration, and then delaying for weeks, months, and even more than a year before furnishing the defendant with an attorney,” Judge Hickle wrote.
The litigation emerged after the American Civil Liberties Union (ACLU) of Missouri, the Missouri MacArthur Justice Center, and Orrick, Herrington & Sutcliffe law firm filed a class-action lawsuit last year in Cole County to end the use of waitlists, which have deprived people accused of crimes access to an attorney since 2017.
“The public defender’s office is hopeful that they will get additional funds from the Missouri legislature, which will allow them to hire additional attorneys to eliminate the waitlists,” said Amy Breihan, co-director of the MacArthur Justice Center’s Missouri office.
Cole County Judges Carol England, Cotton Walker, Ronald Carrier, Terry Cundiff, Elizabeth Swann, Michael Rumley; and Stacey Lett were named as defendants in the lawsuit.
“They were named because, in some instances, they affirmatively placed indigent criminal defendants on waiting lists or endorsed and permitted the placement of defendants on waiting lists,” Breihan told the St. Louis Record.
The state cannot charge a defendant with a crime or probation violation and seek incarceration without providing counsel within two weeks of indigency, according to the ruling.
“It's the right way to go,” Breihan said in an interview. “We always felt like this was a shockingly unconstitutional way to handle the problem of an under-resourced public defender office in the state of Missouri. Folks shouldn't have to wait for their right to counsel to be satisfied. So we're pleased with the ruling.”
Last month, Gov. Mike Parson recommended the legislature approve a budget increase of $820,000 requested by the Missouri State Public Defender's Office, which, if approved, would allow the hiring of 12 additional attorneys, according to a press release.
“Status reports that are being provided by the state show that the number of individuals on the waiting lists has decreased since the trial but there are still more than 1500 cases on the waiting list and even one case is too many given that it’s unconstitutional,” Breihan said. “We’re hopeful that regardless of what happens in the legislature that a final judgment will be entered this summer in our favor that will stop the use of waiting lists.”
The case will be back in court on July 1. Until then, Breihan said suspects facing incarceration are being prioritized.
“There's been a shift in that they are prioritizing not putting people on a waiting list who are detained,” she said.