Structuring the Public Defender

Author:Irene Oritseweyinmi Joe
Position:Assistant Professor of Law, Martin Luther King, Jr. Hall Research Scholar at the University of California, Davis School of Law
Pages:113-180
113
Structuring the Public Defender
Irene Oritseweyinmi Joe*
ABSTRACT: While the public defender is critical to protecting individual
rights in the U.S. criminal process, state governments take remarkably
different approaches to distributing public defense services. Some states
organize indigent defense as a function of the executive branch of state
governance; others administer indigent defense through the judicial branch.
The remaining state governments do not place the public defender within any
branch of state government, instead delegating its management to local
counties. This administrative choice has important implications for the public
defender’s efficiency and effectiveness. It influences how the service will be
funded and the extent to which the public defender, as an institution, will
respond to the particular interests of its local community.
So, which branch of government should oversee the public defe nder? Should
the public defender exist under the same branch of government overseeing both
the prosecutor and police—two entities the public defender seeks to hold
accountable in the criminal process? Should the provision of services be
housed under the judicial branch—although this branch is ordinarily tasked
with being a neutral arbiter in criminal proceedings? Perhaps a public
defender that is independent of statewide governance is ideal, even if that
might render it a lesser player among the many government agencies battling
at the state level for limited financial resources.
This Article answers the question of state assignment by engaging in an
original examination of each state’s architectural choices for the public
defender. Its primary contribution is to enrich our current understanding of
*Assistant Professor of Law, Martin Luther King, Jr. Hall Research Scholar at the
University of California, Davis School of Law. I would like to thank the following individuals
for their valuable insights on earlier drafts: Monica C. Bell, Sara Sun Beale, Ashutosh Bhagwat,
Darryl Brown, Guy-Uriel Charles, Beth A. Colgan, Jessica Eaglin, Eisha Jain, Stephen Lee, Jon D.
Michaels, Alexandra Natapoff, Margot J. Pollans, Eve Brensike Primus, Irma Russell, Shayak
Sarkar, Jonathan Simon, Aaron Tang, Robert Weisberg, and Jordan Blair Woods. Participants at
the following workshops also provided significant contributions: the Southwest Criminal Law
Scholars Workshop, the Duke Law Culp Colloquium, the Criminal Justice Ethics Schmooze, the
AALS Annual Meeting–Professional Responsibility Section, Law & Society Annual Meeting
(Toronto), UC Irvine Junior Faculty Exchange, and the Michigan Young Scholars Conference. I
received outstanding research and editorial assistance from Kimberly Angulo, Deanne Buckman,
Kendra Clark, Kiyoshi Din, John Mitchell, Devon Stein, and Stephanie Quero. I also thank Kevin
R. Johnson and UC Davis School of Law for additional research support.
114 IOWA LAW REVIEW [Vol. 106:113
how each state manages the public defender and how that decision influences
the institution’s funding and ability to adhere to ethical and professional
mandates. It concludes the public defender should be an important executive
function in this modern era of mass criminalization and articulates
modifications that would improve such a state design by insulating it from
pressure by other system actors.
I.INTRODUCTION ............................................................................. 115
II.STATE GOVERNMENT AND THE PUBLIC DEFENDER ....................... 120
A.HOW STATES MANAGE STATE INSTITUTIONS ............................ 123
B.HOW STATES MANAGE THE PUBLIC DEFENDER ......................... 127
1.Study Methodology ....................................................... 128
2.Study Findings ............................................................... 131
III.THE CONSEQUENCES OF BRANCH OVERSIGHT ............................. 135
A.FUNDING RELIABILITY AND EQUITY .......................................... 138
1.Funding Structures by Branch Assignment ................. 141
2.The Optimal Funding Structure .................................. 143
B.ETHICAL AND PROFESSIONAL RESPONSES TO CASELOAD
CONCERNS .............................................................................. 148
IV.INSTITUTIONAL AUTONOMY AND THE PUBLIC DEFENDER ............ 153
A.AN INSPECTOR GENERAL THEORY OF THE PUBLIC DEFENDER
STRUCTURE ............................................................................. 153
B.MANAGEMENT BY DIVERSE BOARDS OR COMMISSIONS ............... 157
V.CONCLUSION ................................................................................ 162
APPENDIX A: OVERVIEW OF BRANCH DESIGNATIONS .................... 165
APPENDIX B: STATES WITH SPECIFIC BRANCH DESIGNATION
IN PUBLIC DEFENDER GOVERNING STATUTES ............................... 167
APPENDIX C: STATES WITH SPECIFIC AGENCY DESIGNATION
IN PUBLIC DEFENDER STATUTES ................................................... 168
APPENDIX D: STATES WITH CHIEF DEFENDERS ASSIGNED BY A
PARTICULAR BRANCH OF GOVERNMENT ....................................... 169
APPENDIX E: STATES WITH PUBLIC DEFENSE SERVICES
MANAGED BY A BOARD OR COMMISSION ....................................... 170
2020] STRUCTURING THE PUBLIC DEFENDER 115
APPENDIX F: PUBLIC DEFENDER FUNDING STATUTES ................... 172
APPENDIX G: PUBLIC DEFENDER FUNDING AMOUNTS .................. 178
APPENDIX H: PUBLIC DEFENDER COMMISSION DIVERSITY BY
PERCENTAGE ................................................................................. 180
I. INTRODUCTION
In November 2012, the state of New Mexico voted by a supermajority to
amend the state constitution and remove the public defender institution from
executive branch oversight.1 The vote made the public defender an
“independent” agency under the judicial branch after more than three
decades as an agency under the executive branch.2 This was a significant
change, as it led to the creation of a Public Defender Commission, which,
although housed under the judicial branch, would assume the responsibility
previously held by the state’s governor of providing indigent defense services
by appointing and advising a chief public defender.3
Proponents of the ballot measure argued moving the public defender
from the executive branch would help rectify imbalance in the criminal justice
system.4 The concern was that the public defender was beholden to the
political system in the executive branch and, as a result, unable to provide an
honest assessment and counter to law enforcement in the criminal justice
process.5 New Mexico Criminal Defense Lawyers Association President,
Ousama Rasheed, noted,
[h]aving a governor, a career prosecutor, appoint both the head of
the Department of Public Safety and the chief public defender,
deciding the budget allocations to each, giving input on how each
1. STATE OF N.M. L. OFFS. OF THE PUB. DEF., DEFENDING JUSTICE: 2014 ANNUAL REPORT
4 (2014) [hereinafter DEFENDING JUSTICE], http://www.lopdnm.us/pdf/2014_annl_rpt_rev9214.pdf
[https://perma.cc/5NTK-A8GM].
2. See N.M. STAT. ANN. §§ 31-15-1 to 31-15-12 (1978). This Act provided either the funds
necessary to pay for, or the actual representation of, indigent defendants in criminal courts who
face imprisonment or death. Id. §§ 31-15-10, 31-15-12. It also set forth indigency standards for
courts to use in determining which defendants would be eligible for representation under the
Act. Id. § 31-16-2; see also DEFENDING JUSTICE, supra note 1, at 4.
3. See N.M. LEGIS. COUNCIL SERV., BRIEF ANALYSIS AND ARGUMENTS FOR AND AGAINST THE
CONSTITUTIONAL AMENDMENTS PROPOSED BY THE LEGISLATURE IN 2011 AND 2012, at 28–30
(2012) (stating that before the 2012 vote, the public defender was an agency that was
administratively attached to the Department of Corrections with the chief position appointed by
the governor).
4. See id. at 29.
5. See id. at 28–30.

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