Public Defender’s Office Overwhelmed

By Rick Sherman

Utah is one of just two states where the responsibility of providing an attorney to indigents falls to the counties. Only Utah and Pennsylvania do not provide state funds for public defenders. The counties are left to sustain the financial and administrative burden of providing the constitutionally-guaranteed representation by an attorney. The burden is especially difficult for rural counties.
The Carbon County Public Defender’s Office is concerned that the burden is not being adequately met due to a heavy caseload which stems primarily from drug offenses. That was the message from court-appointed Public Defender Don Torgerson during the December 2 meeting of the Carbon County Commission. Torgerson sent a letter to the commission last month with a proposal for indigent defense legal services, and was invited to make a presentation at a regular commission meeting.
In that presentation he stated, “There is something to be said for the concerns that are out there,” referring to a 2011 ACLU report entitled, Failing Gideon, and a more recent Sixth Amendment Center study documenting what it called, “Utah’s Unconstitutional Public Defense System.”
The ACLU report said Utah’s Public Defender system is failing on all ten of the principles set forward by the American Bar Association; Public defender budgets routinely fall within the range of 25-30 percent of the county attorney’s budgets, and in some counties, public defender caseloads are so high that they may have only ten hours (or less) to spend on each felony case. It concluded that Utah’s county by county public defense system is constitutionally inadequate.
The Sixth Amendment Center report, which was funded by the Utah Judicial Council, found that in Utah’s misdemeanor courts, defendants are often actually denied counsel when they are entitled to it, and in Utah’s felony courts, systemic deficiencies often lead to constructive denial of counsel. The study conceded that there is a pressing need for state oversight, ongoing funding and substantial training throughout the system.
Torgerson told commissioners that heroin use in the community is creating so many cases that the public defender’s office, and the court system in general is nearly overwhelmed. He said about 90 percent of prosecutions in the county are driven by drug use. “The county attorney filed some 600 felony cases last year, and 400 justice court cases. Our concern is that the caseload will continue to increase,” he said.
Commissioner Casey Hopes pointed out that the county attorney’s office also has to deal with the same heavy caseload. Carbon County Attorney Gene Strate shares the concern about the overloaded court calendar. “It’s about all we can do to handle our caseload,” he said. And he agrees, “Some adjustment will have to be made to the public defender’s office, but the budget is so tight I don’t know what the county can do.”
Torgerson noted the public defender’s office has a budget of about $160,000 for criminal defense, while the budget for the county attorney’s office is more than $800,000. “The primary Public Defender, David Allred does an exceptionally good job for the caseload that he carries, which is equivalent under national guidelines to what I think would be three or four attorney caseloads,” Torgerson said, adding his own caseload is at the maximum number recommended by national standards. “So my proposal is that the commission essentially fund a third public defender’s position,” he continued.
Torgerson proposed that the county consider tapping into a fund which has been earmarked for third party conflict cases. He also suggested that each defendant be required to pay a $250 fee as a way for the county to partially recoup revenue used to fund the addition of a third attorney. In his letter, Torgerson noted that some Salt Lake Courts impose up to a $500 recoupment fee. In San Juan and Grand County District Courts, Judge Anderson imposes $250 in every criminal case if the defendant does not go to prison. And Judge Carpenter in the Carbon County Justice Court imposes $100 for each case filed by Price City. The letter said, “The proposed fee would allow the County to recover some of its costs which improves our ability as public defenders to provide better service to the clients.”
Commissioner Jae Potter commented, “In the presentations I’ve seen from the ACLU and so forth, I become a little bit offended because I think that any time a special interest group believes they’re entitled, that they want a different status in life, I become concerned.”
The proposal was not an action item on the agenda, but was taken into consideration by the commission.