Maryland Bar Bulletin
Publications : Bar Bulletin : December 2008


In our tumultuous economic times, many state and county government services are being reduced or completely eliminated due to budget cuts and many agencies face budget deficits. Nowhere is this more evident than in the Maryland Office of the Public Defender (PD), the state agency that is constitutionally required to represent criminal defendants within 180 days of their arrest. Given the court’s astronomical criminal docket, the PD often relies on the backup support of panel criminal attorneys who handle conflict of interest cases and are paid a set fee by the PD.

But, the lack of funding for this state agency became such a crisis last October that the PD no longer had money to pay panel attorneys. MSBA’s Board of Governors gave this matter serious consideration and discussed it at length during its October and November meetings to search for a constructive solution to restore funding for the panel attorneys. Fortunately, in this case, Governor Martin O’Malley stepped in and approved a deficiency appropriation for the PD. This allowed the PD to restore funding for payment to panel attorneys in instances where the PD faces a conflict of interest. But adequate state funding for the PD remains an ongoing problem that often becomes a crisis.

When this crisis occurs it poses dire consequences for our criminal justice system and the entire state. Under the Sixth Amendment to the U.S. Constitution, citizens in this state are entitled to the right to counsel in all criminal cases, and when its citizens are unable to afford counsel, they are entitled to that appointment at state expense. This is a societal problem that requires a societal solution – adequate state government funding for the representation of criminal defendants.

Maryland is not alone in this; it is now a national crisis. Public defenders’ offices across the country face inadequate funding, insufficient staffing and overwhelming caseloads. Legal actions have resulted in seven states because public defender offices simply cannot handle new cases and are refusing to accept them.

Increasingly, these government-funded agencies are unable to meet their statutory obligations, set forth by the U. S. Constitution as interpreted by the U.S. Supreme Court. Therefore, this dearth of funding and public defender staffing is forcing judges in some states to start conscripting private lawyers and appointing them to represent criminal defendants on a pro bono basis. This did happen in some Maryland counties.

Although Public Defender budget crises have occurred in Maryland in the past, because the agency has been chronically under-funded for years, this most recent one was the most acute to date. Even more alarming, it could still escalate into a far greater problem, as fiscal shortfalls are predicted well into 2011.

MSBA Voices Concern

When this crisis has arisen in the past, MSBA has always voiced its concern that it could indeed break down Maryland’s entire criminal justice system. It poses serious threats to the safety of our citizens. Legal representation is mandated for criminal defendants within 180 days of their arrest or they go free and are back on the streets.

That is why adequate panel attorney funding is so vital in thwarting a pending crisis in the state’s criminal justice system. Panel attorneys offer critical backup to the PD Office for minimal fees. These private criminal practitioners handle roughly 10,000 cases a year, 20 percent of which are CINA (Child in Need of Assistance) cases, which are often long and drawn-out matters.

When the PD was out of funds for panel attorneys on October 1, 2008, and could no longer pay them, it shifted this financial burden and responsibility to the counties, whose governments also face deficits.

Historically, when such crises loomed in the 1990s, MSBA and the state’s local bar associations leaders convened, examined the issue and endorsed resolutions calling on the Governor to restore and provide adequate funding to the Public Defender’s Office. With respect to this latest crisis, MSBA once again joined local bar association leaders, Maryland’s Judiciary and other key players in the state’s legal community in an urgent plea to the Governor to ensure adequate funding for Maryland’s Public Defender’s Office and for panel attorneys. Fortunately, the plea was heard and immediately answered.

Adequate funding is essential for the current PD budget deficit and the predicted budget cuts for the PD’s 09/10 fiscal year and beyond. Funding is direly needed to ensure that the right to counsel for all Marylanders in all criminal cases is protected and that those unable to afford counsel have a public defender at state expense and, when necessary, a panel attorney for legal representation. Adequate PD funding is the only solution to this societal issue, and MSBA will continue to vigorously pursue resolutions for the PD budget crises, hopefully by working cooperatively with all of the key parties.

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Publications : Bar Bulletin: December 2008

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