Public Defender Commission Chairman Thomas J. Clear III

By PHAEDRA HAYWOOD
The Santa Fe New Mexican

The state agency that provides legal representation for indigent defendants is drastically understaffed, according to a recently released study, which says the Law Offices of the Public Defender needs 67 percent more lawyers that it has to provide “reasonably effective assistance of counsel” as guaranteed by the U.S. Constitution.

That’s 602 more attorneys — more than double the 295 the agency currently has.

“It frightening,” Public Defender Commission Chairman Thomas J. Clear III told House Appropriations and Finance Committee members Friday. “I have warned it is a problem that is going to cost this state a lot of money, and this report verifies it.

“I applaud our attorneys … [who] handle these cases, but quite frankly, the defendants aren’t receiving any kind of quality representation systemically,” he added.

Completed by the American Bar Association Standing Committee on Legal Aid and Indigent Defense, the study is an outgrowth of a 2016 crisis within the state agency. At the time, then-newly appointed Chief Public Defender Bennett Baur was found in contempt of court for telling officials in the Hobbs area the Public Defenders Office was temporarily unable to accept any new cases because it had no one to do the work.

“We said, ‘Please stop sending cases to us until we get on our feet,’” Baur said in an interview.

A state district judge ordered the office to continue taking all the cases, and the agency appealed the issue to the state Supreme Court, which let the lower court’s ruling stand.

Dubbed The New Mexico Project, the study — funded in part by a $50,000 legislative appropriation from 2017 — examined the numbers and needs of public defenders.

With individual case loads hovering around 200, the study found public defenders in New Mexico have an average of just 10 hours to spend on each case, including communicating with clients, conducting discovery, securing experts and investigators, researching and writing legal briefs, preparing for and attending court hearings and handling plea negotiations, the study says.

The agency handles about 57,500 cases in 13 judicial districts each year.

“Like the frog in boiling water, little by little, we have been overwhelmed by the numbers coming through,” Baur said last week. “It’s taken us decades to get into this position and it will take us some time to get out of it.”

Solving the problem will take multilevel approach, he said. 

“The state could give us three times our budget, but the state could also cut down on the number of cases that are coming into the system — the number of crimes we are required to represent. We can do it by getting more money, but frankly, I’d rather have fewer cases,” Baur said.

That would mean transforming some laws that include jail time into offenses that only carry citations. 

For example, driving without a license used to be punishable by up to a year in jail. Now, it’s a ticket.

“We don’t have to appear on those anymore, and that’s important,” Baur said, adding “defelonizing” drug possession could be an important step.

“If we can reduce the number of people who need our services, then we can provide better services with the resources we have,” he told the committee.

The agency had asked the Legislature for a 10.7 percent increase [about a $6.1 million increase over last years operating budget of $58.4 million] according to documents provided by the Law Offices of the Public Defender. The Legislative Finance Committee recommended a 6 percent increase, while the executive branch recommended an increase of 4.7 percent, according to a spokeswoman for the public defender.

The House Appropriations and Finance Committee voted to support the Legislative Finance Committee recommendation Friday. 

The report struck a chord with Rep. Dayan Hochman-Vigil, (D-Albuquerque).

“As an attorney who has worked with Law Office of the Public Defender, … I am ecstatic to finally see some real data in a study on the status of the system, because it is dire,” she said. “It just backs what many of us have known for several years, which is we are on the brink — if not past the brink — of constitutional crisis.”

Hochman-Vigil said what’s really needed is a “deeper dive” to figure out a way to develop a pipeline of attorneys who can fulfill the state’s needs. 

“I’m glad we are having this conversation today,” she said. “But it’s far from over.”