Bail Reform: A Possible Solution to Missouri's Broken Public Defender System?

• Author: Kramer, Dana

1. INTRODUCTION

   Bail reform is currently sweeping through the United States. Over forty jurisdictions have implemented new bail systems based on empirical data that aim to assist judges in determining bail and to reduce the use of cash bail. (1) Missouri, following the lead of many other states, has introduced new court rules from the state's Supreme Court that embrace this bail reform movement. (2) The state's bail reform intersects with the issues facing the Missouri Public Defender System (the "MSPD"). The MSPD suffers from excessive caseloads and gross underfunding, both of which significantly undermine public defenders' ability to provide effective counsel to indigent defendants. (3) Because indigent defendants are the class of persons most affected by the current bail system, the bail reform movement is largely meant to impact them.

   Bail reform in several jurisdictions is not producing these intended effects and is instead posing many risks to indigent defendants' pretrial procedural and constitutional rights. This Note considers the bail reform in Missouri, which took effect in 2019, as well as its implications on Missouri public defenders and the indigent defendants they represent. To do so, Part II first relates the constitutional protections afforded to indigent defendants and examines the problematic history of the MSPD. Part III delves into recent attempts in Missouri to remedy the MSPD's problems, including the state's proposed bail reform, and compares bail reform in Missouri with other states who have also adopted new bail systems. This Note then concludes, in Part IV, with a discussion of the consequences of the new bail system and offers suggestions to improve Missouri's bail reform.

2. LEGAL BACKGROUND

   A criminal defendant's right to counsel is constitutionally rooted in the Sixth Amendment: "In all criminal prosecutions, the accused shall enjoy the right . . . to have Assistance of Counsel for his defense." (4) The Missouri Constitution contains a similar right in its Bill of Rights: "That in criminal prosecutions the accused shall have the right to appear and defend, in person and by counsel . . . ." (5) This right ensures that indigent defendants--defendants who cannot afford an attorney--receive representation in their criminal case. (6) This Part provides background on the development of this right. Section A details the rights afforded to indigent criminal defendants under the Sixth Amendment, and Section B focuses on attempts in Missouri to provide this right to indigent defendants.

   1. The Supreme Court's Interpretation of the Sixth Amendment

      In 1963, the United States Supreme Court in Gideon v. Wainwright interpreted the Sixth Amendment's right to counsel to extend to persons charged with a felony. (7) Gideon involved an indigent defendant in Florida who was convicted of a felony and sentenced to eight years' incarceration. (8) A Florida state court denied the defendant appointment of a public defender because Florida law at the time only allowed the court to appoint a public defender in capital cases. (9) Stating that "any person hailed into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him," the Supreme Court distinguished the right to counsel as "fundamental and essential in fair trials." (10) The Supreme Court concluded that indigent persons charged with felonies have a constitutional right to counsel. (11) The Supreme Court further held that this right is applied to all states through the Fourteenth Amendment. (12)

      However, Gideon only addressed the right to counsel in felony cases. (13) The Supreme Court did not extend the Sixth Amendment right to counsel to misdemeanor cases until 1972. (14) In Argersinger v. Hamlin, a defendant charged with a misdemeanor offense and sentenced to ninety days in jail alleged that he was deprived of his right to counsel as an indigent defendant. (15) The Supreme Court considered the historical roots of the Sixth Amendment, noting that twelve of the thirteen colonies recognized the right to counsel in all criminal cases, including petty offenses. (16) The Supreme Court then discussed and applied the rationale of Gideon, reasoning that the legal and constitutional questions presented in misdemeanor cases are no less complex merely because the person charged may be imprisoned for six months or less. (17) Therefore, the Supreme Court extended the right to counsel to misdemeanor and petty offense prosecutions where the defendant faces the possibility of incarceration. (18)

      The Supreme Court held in Rothgery v. Gillespie County that the right to counsel attaches when "formal judicial proceedings have begun," or, in other words, when a criminal defendant first appears before a judge and learns of the charges against him. (19) As a result of Rothgery and Argersinger, many states, such as Wisconsin, require attorneys to represent criminal defendants when the defendant first appears in court and bail is set. (20) In some states, however, defendants do not appear with counsel at their initial appearance, meaning that these defendants may not be appointed counsel for weeks or months. (21)

      The Supreme Court further specified the right to counsel in McMann v. Richardson as entitlement to effective counsel. (22) The Missouri Supreme Court, in 2012, likewise followed the holding that "the Sixth Amendment right to counsel is a right to effective and competent counsel," (23) which "requires counsel to appropriately investigate, prepare, and present [a] client's case." (24)

      The United States Supreme Court has declined to specify what effective counsel entails. (25) However, the American Bar Association (the "ABA") published the Criminal Justice Standards for the Defense Function ("Standards") to "provide guidance for the professional conduct and performance of defense counsel." (26) These Standards include:

      a duty of confidentiality . . . a duty of communicating and informing the client . . . a duty of carrying an appropriate workload that will not interfere with providing qualify representation . . . a duty of establishing a relationship with the client and maintaining that relationship . . . a duty of investigating in all cases . . . a duty of preparing for court proceedings in advance . . . [and] a duty of considering and relating to the client consequences that may arise from a charge, plea, or conviction and the effects of this on sentencing. (27) Missouri State Public Defender Guidelines for Representation, principally tracking the Standards language, specifically state the responsibilities of Missouri public defenders. (28) Additionally, the Missouri Supreme Court Rules of Professional Conduct prescribe that attorneys act with "reasonable diligence and promptness in representing a client" and keep clients reasonably informed about their case. (29)

      Though effective counsel is a constitutional right to which every criminal defendant facing incarceration is entitled and the ABA provides guidelines on how to meet this responsibility, many criminal defendants across the United States, and particularly in Missouri, do not receive effective counsel from state public defenders. (30) Inadequate funding for public defender systems and increasing caseloads undermine an indigent defendant's doctrinal right to effective counsel. (31) The MSPD has been one of the most dysfunctional public defender systems in the United States for the past few decades. (32)

   2. Missouri's Public Defender System

      In the aftermath of Gideon, Missouri courts appointed attorneys to represent indigent defendants without pay. (33) However, the Missouri Supreme Court soon held in State v. Green that the responsibility of representing indigent defendants was not the duty of Missouri attorneys but was constitutionally "the burden of the State." (34) In 1972, the state legislature responded to Green with the enactment of Chapter 600 of the Missouri Revised Statutes. (35) Chapter 600 created the MSPD and the Public Defender Commission (the "PDC"), which governs the entire MSPD and establishes criteria for indigency. (36) This new legislation created a dual system for handling indigent cases, which consisted of fourteen local public defender offices and appointed counsel programs where private attorneys would contract with the State to represent indigent defendants at a set fee. (37) However, the MSPD soon faced issues of underfunding, as the amount appropriated to the MSPD remained stagnant while caseloads increased dramatically. (38) In fiscal year 1980, less than ten years after the MSPD's inception, the MSPD ran out of funds nearly two months before the fiscal year ended. (39) As a result, local public defender offices were grossly underfunded and contracted attorneys were not paid for their work. (40)

      The Missouri Supreme Court was soon called upon to compel the General Assembly to pay attorneys for their work in State ex rel. Wolff v. Ruddy. (41) Reluctant to violate the separation of powers, the court concluded that it could not force the legislature to provide more funds to the MSPD. (42) However, the court found that it could require members of the Missouri Bar to provide representation. (43) The court's decision left Missouri attorneys to continue representing indigent defendants despite a gross lack of funding and the possibility of never receiving compensation. (44)

      The Missouri legislature responded to Ruddy in 1982 with the creation of the Office of the State Public Defender (the "OSPD"), a department independent of the judicial branch that was authorized to set guidelines for determining indigency. (45) The OSPD could also appoint private counsel to represent indigent defendants. (46) But finding private attorneys willing to represent indigent defendants became increasingly difficult, spurring reorganization of the MSPD. (47) The MSPD was restructured into three specialized divisions: the Capital Division, the...