N.M. public defenders beg lawmakers for funding as workloads grow heavier 

Budget panel warned that without a boost in resources, state could be violating constitutional rights to effective legal counsel

By: - November 17, 2022 4:30 am

A child dances during a tour inside the Roundhouse on Dec. 8. (Photo by Austin Fisher / Source NM)

New Mexico’s public defenders say they have too many clients and nowhere near enough attorneys to represent them. Without more funding from state lawmakers, they say people accused of crimes are losing out on their constitutional rights to adequate defense and due process.

When someone is charged with a crime in New Mexico, there is a good chance that they can’t afford their own attorney and must be provided one by the state.

And among those attorneys, many are not actually employed by the state Law Offices of the Public Defender but are contractors instead.

And when a contractor takes on, for example, a first-degree murder case, they are paid a base rate of $5,400. For the whole case.

That means, on average, that attorney is making $13.81 per hour representing their client, according to a study of New Mexico public defenders’ workloads published in January.

“Those numbers should shock us,” Rep. Ryan Lane (R-Aztec) told the Legislative Finance Committee on Tuesday afternoon.

The caseloads that public defenders have are still too high, and what the office pays to contract outside help is still way too low, said Thomas Clear, chairperson of the state Public Defender Commission.

Lawmakers are taking testimony this week from various state agencies in order to decide how much funding to provide in the next fiscal year.

It’s very important for contract attorneys to make a competitive rate, said Chief Public Defender Bennett Baur, because they represent people in cases where there are co-defendants all over New Mexico.

“In many of our counties, in the rural counties where we don’t have an office, they provide the only representation,” Baur said. “And we are committed to providing excellent representation in every county of New Mexico,” Baur said.

A constitutional mandate

The U.S. Supreme Court in 1963 ruled that the Sixth Amendment of the U.S. Constitution entitles people accused of crimes to help from a lawyer in their defense, even when they cannot afford to pay for one.

In a later case, the Supreme Court determined that if an attorney is unable to effectively represent their client, that could call into question whether the trial was fair or that with better help, there was a reasonable chance the client would have been found not guilty.

Rep. Christine Chandler (D-Los Alamos) said on Tuesday that more staff at the Public Defender’s Office is needed to ensure all criminal defendants in New Mexico receive effective legal representation. 

“It is not simply just talking about a budget,” Chandler said. “It is talking about whether we are providing enough support to ensure that indigent individuals in the state are receiving the legal representation they deserve under the law.”

The office is asking the Legislature for $13.2 million more from the state’s General Fund — about 21% more than what’s being spent now on public defenders.

The request includes $4.2 million to increase contract attorney compensation, $1.2 million for in-house attorney compensation, and $5.7 million to add 60 full-time staff, including 30 attorneys.

The request for funding more staff is based on recommendations from a four-year-long workload study released in January that found three times more defense attorney hours are needed across New Mexico to provide adequate legal representation, Baur said.

So the Public Defender’s Office created a five-year plan to show how it could get “pretty close to what reasonably effective assistance of counsel would be,” Baur said.

The plan calls for ramping up resources for in-house and contract public defenders, and reforming charging and prosecution practices to “cut down on the number of people coming into the system without necessarily affecting public safety,” Baur said.

Over the last couple of years, prosecutors and courts have gotten more money from the Legislature than public defenders, Baur said. The office is also asking the Legislature for funding to begin to even that out.

A pay equity study will be published soon, Baur said, “and we think it’s going to show that we do need additional monies to make sure that we can compete with district attorneys to both bring in and retain attorneys.”

The $1.2 million for increased in-house attorney compensation would also help pay for travel expenses for lawyers, expert witnesses, and more frequent trial costs. Trials were backlogged because court systems shut down early on in the COVID pandemic but are moving forward again.

And to keep people from coming back into the criminal legal system, Baur said, the Public Defender’s Office needs money to pay for social workers who could “take our clients to the point that they are less likely to reoffend and they are more likely to become productive members of the community.”

“We can be the biggest part of the system of all, because our clients can grow to trust us before anybody else,” Clear said.

Still taking all cases

Clear and the Public Defender Commission proposed rules in 2018 that would allow public defenders to refuse taking on new cases instead of providing inadequate legal representation to poor clients.

They haven’t implemented those rules, Clear told the LFC, “because we don’t want to disrupt the system. We want to make things better, but we need your help.”

In 2016 and 2017, things were so dire in several local branches, particularly the one in Lea County, that the office told the court there they temporarily could not take more cases, Baur said.

That issue became the subject of a case before the state Supreme Court, which didn’t make a decision, Baur said, but asked the Public Defender’s Office to gather more data about how much work one lawyer can do while actually providing effective representation to their clients in the criminal legal system.

Clear said the public defenders in New Mexico want to make a difference in their clients’ lives, “but they have too many cases. They can’t do it because they’re triaging.”

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Austin Fisher
Austin Fisher

Austin Fisher is a journalist based in Santa Fe. He has worked for newspapers in New Mexico and his home state of Kansas, including the Topeka Capital-Journal, the Garden City Telegram, the Rio Grande SUN and the Santa Fe Reporter. Since starting a full-time career in reporting in 2015, he’s aimed to use journalism to lift up voices that typically go unheard in public debates around economic inequality, policing and environmental racism.