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

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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

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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

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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.