Budget cuts could throw State Public Defender's office back into constitutional crisis
September 3, 2020
CHEYENNE — Just a few months removed from a Supreme Court decision forced by heavy caseloads and understaffing for the agency, the Wyoming Public Defender’s office could soon be thrust into another constitutional crisis, thanks to the 10% budget cut announced last week.
Last year, State Public Defender Diane Lozano warned the Legislature that her office had been overburdened by heavy caseloads and struggles to retain attorneys. The issue entered the spotlight in May 2019, when Lozano said her office could no longer accept misdemeanor cases in Campbell County due to those issues.
Earlier this year, the Wyoming Supreme Court ruled in favor of Lozano, determining her office may exercise some discretion on when it can represent defendants in misdemeanor cases.
But just a few months removed from that ruling, the state’s ability to provide public defenders will again be strained by the latest round of budget cuts, which total about $3 million for the office, according to a document submitted to the state Budget Division.
“The Public Defender handles nearly 90% of all criminal cases in the Wyoming court system and has ‘functioned’ on a minimal budget, being just one capital case or one big drug conspiracy case or an increase in caseloads from catastrophe,” the document reads.
“As we all learned in the spring of 2019, when the Public Defender is not adequately funded or staffed, a constitutional crisis ensues, as well as creating an ethical crisis for the State Public Defender and her assistants,” it continues.
The cuts will impact the same region that was stretched thin last spring.
The field office in Newcastle, which covers both Crook and Weston counties, will lose its attorney and legal assistant. Essentially, all public defenders for residents of northeast Wyoming will now come from the Campbell County office in Gillette.
Sen. Tara Nethercott, R-Cheyenne, who co-chairs the Joint Revenue Committee, said that cut “really highlights the challenging situation in the northeast corner of the state, and particularly right now, adds fuel to that fire of being able to provide the right number of attorneys in that Campbell County area.”
“With that burden being shifted to Campbell County, I think it really takes us back to where we were before,” Nethercott said. “I am confident the Public Defender’s Office will continue to find solutions … but I think we’re definitely going to need to hear from them and understand their fears about boots on the ground up there.”
The reduced budget will also impact the Laramie County office, which will lost a part-time attorney. Though the local office is set to gain a full-time attorney, the position cut, coupled with the loss of another contracted public defender, will further add to the attorneys’ caseloads in Laramie County.
“In essence, this office will have to handle an additional 70 or so cases,” the document states. “If this office experiences turnover or an increase in caseloads, the loss of position could become a crisis.”
Any reduction of attorneys, whether part-time or full-time, “increases the likelihood that the State Public Defender will have to refuse cases,” the document states, and “without the ability to compensate, court-appointed poor people could be without counsel.”
Last year, when Lozano directed her Campbell County office to stop handling misdemeanors, 4.5 public defenders were handling the workload of 7.5 attorneys. In the related Supreme Court case, a local field officer testified that he often hadn’t met his clients until five minutes before their court hearing.
As noted in the budget document, the cuts to staff in Crook, Weston and Laramie counties could lead to similar cycles, which would only create more court congestion.
“Any case affected by lack of adequate counsel, or lack of counsel completely, would likely be returned to the courts after appeals, costing the state more money than it likely saves here,” the document states.
With high turnover rates among staff in recent years, the cuts will also impact the ability of new public defenders to receive the training they need. The office’s annual conference, which all Wyoming public defenders must attend to receive additional legal training, has been eliminated.
“The inability to adequately train its attorneys in criminal case representation could result in unethical and unconstitutional representation of the indigent accused in the State of Wyoming,” the document reads.
Without the annual conference, Wyoming public defenders “will have to pay for their own training and will have to figure out each of their case schedules with each court” moving forward.
The cuts will also impact the state’s Guardian Ad Litem office, which provides legal representation for children involved in abuse and neglect cases, among others. The office, which was formally separated from the public defender’s office earlier this year due to the potential for conflicts of interest, had nearly $500,000 cut from its total budget.
Most of those eliminated funds were for contract attorneys to help serve in the office. The reductions, according to budget documents, “increase the likelihood that the Office of Guardian ad Litem will not be able to function, and children will go without counsel.”
“Cuts to contracts will likely result in only being able to provide one GAL attorney in each county or multiple counties at caseloads of several hundred children,” the document states.
In Laramie County, where $80,000 has been cut for the contracts, there are currently more than 250 open juvenile cases.
Lozano, who was appointed temporary director of the GAL office in July, had not responded to a request for comment by press time.
Along with its approval of a standalone Guardian Ad Litem office, the Wyoming Legislature took a few other steps earlier this year, aiming to help the state’s public defenders. One of those was approval of a bill more clearly outlining the income levels that allow a person to qualify for representation by a Wyoming public defender. Under the legislation, a person must earn less than 218% of the federal poverty guidelines, or about $28,000, to be eligible.
But it’s unclear whether that legislation will actually materialize in courtrooms. Nethercott noted the bill approved by lawmakers doesn’t clearly state who within the judicial system must evaluate the affidavits claiming indigence.
“The standard is there, but the mechanism to enforce it is not,” Nethercott said.
Nethercott pointed to a bill passed last session that eliminated the possibility of prison time for minor traffic violations as one that could help reduce the public defenders’ workload more immediately. The senator also noted the COVID-19 pandemic, which has forced some criminal procedures to be conducted virtually, could reduce travel times and make public defenders more accessible to their clients.
But ultimately, the viability of the State Public Defender’s office will come down to one thing.
“As far as anything else, I really think funding is the most important concept that we just don’t have the resources for right now,” Nethercott said.