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Editorial: Faltering public defender system needs fix ASAP

Despite a constitutional requirement that the state provide any indigent accused of a crime with legal representation, the New Mexico Office of the Public Defender – like many state agencies – is having trouble meeting its mandate because of the state’s dismal financial straits.

But there’s an essential difference: The Public Defender is not like any other state agency. It is entrusted with providing representation regardless of a client’s ability to pay for a defense. That’s a cornerstone of justice.

But it’s time for the Legislature to make some reasoned decisions about which defendants are entitled to representation at taxpayer expense.

Under the state Constitution, the defender’s office is required to represent clients in all criminal misdemeanor, juvenile and felony cases, start to finish. Eligibility for a public defender is based on factors including household income and assets, and those deemed capable of paying something toward their legal fees are charged on a sliding scale. Taxpayers pick up the rest.

But the public defender’s office is chronically underfunded, and that under-funding is coming to a head.

Ben Baur, the state’s chief public defender, warned lawmakers in September his office would have to start declining cases in certain parts of the state due to a lack of funding. A month later, a public defender in Lea County announced that inadequate funding meant his office could not take on any new cases in the adult courts for 90 days.

Baur wrote in court documents that felony cases in Lea County have more than doubled in the last five years, and that four attorneys were struggling to handle more than 1,000 cases. Two of the office’s contract attorneys handle an additional 300 to 400 cases.

Meanwhile, judges are forced to continue assigning indigent cases to public defenders. Baur correctly notes there are only two solutions: More money to pay for additional public defenders, or fewer cases. With state lawmakers scrambling to fill a projected $69 million shortfall in just this fiscal year’s budget, the former solution is, at least for the short term, a nonstarter.

And that leaves lawmakers with the unenviable task of finding ways to curtail the number of cases the Public Defender’s Office is required to handle. That, in turn, is likely to require redefining “indigent” or narrowing the scope of criminal cases deemed “misdemeanor,” “juvenile” and “felony.”

And while Margaret Strickland, president-elect of the New Mexico Criminal Defense Lawyers Association, wrote in an op-ed this month that a judicial system “tilted against the defense” can turn into wrongful convictions and unnecessarily long prison sentences, the bottom line is something has to give.

Such as should a person temporarily out of work who gets a first-offense DWI, a misdemeanor unlikely to end in a jail term, be defended entirely on public funds? Or should a former high-end homebuilder, charged with fraud and embezzlement, receive, as one judge said, “whatever resources are necessary” for his defense simply because his debts exceed the $42,128 salary he subsequently makes as a teacher?

While there are no good arguments for ineffective counsel for truly poor defendants facing real jail time, it’s clear the system currently in place is not sustainable. When members of the judiciary themselves say the system is heading down a dangerous path, it’s imperative solutions be found quickly.

As said, in January state lawmakers face an unenviable, but entirely necessary, task.

This editorial first appeared in the Albuquerque Journal. It was written by members of the editorial board and is unsigned as it represents the opinion of the newspaper rather than the writers.