New Mexico does not have enough legal public defenders

State office needs more attorneys to handle rising number of arrests and cases, public defense commissioner says

By: - November 16, 2023 5:04 am

New Mexico has 349 public defenders. This includes staff attorneys who are state employees and contract attorneys who take on cases piecemeal. (Photo by David McNew / Getty Images)

It would take hundreds of additional public defenders to handle all of the cases coming through the state’s criminal legal system, based on a study of the office’s workloads.

The Law Offices of the Public Defender on Wednesday afternoon asked the Legislative Finance Committee for a 20% bigger budget in the upcoming fiscal year, to pay for 30 more attorneys to represent New Mexicans accused of crimes throughout the state.

Bennet Baur represents New Mexico’s public defenders and told lawmakers last year there are too many clients and nowhere near enough attorneys to represent them. Without more funding, Baur told lawmakers Wednesday, people accused of crimes are losing out on their constitutional rights to adequate defense and due process.

“Our request is assertive in a way that’s necessary because the need is so great,” he said. “Because we represent members of the community who don’t have their own resources and face police, prosecution and those kinds of resources.”

By the numbers

The New Mexico Law Offices of the Public Defender’s annual budget totals $71.7 million. The public defender’s office is asking state lawmakers to increase its budget in the upcoming fiscal year by $14.9 million, to a total of $86.6 million. This includes:

  • $6.2 million to pay for 30 more attorneys and 30 core staff, investigators and social workers
  • $4.9 million for contract attorneys and complex case costs (like conspiracy cases involving multiple defendants)
  • $2.1 million for pay equity and parity with prosecutors and other state attorneys
  • $1.7 for other trial and operational needs

As things stand, New Mexico has 349 public defenders. This includes staff attorneys who are state employees and contract attorneys who take on cases piecemeal.

Lawmakers did boost the budget request from the public defender’s office by $6.3 million last year, which has been used to give raises to defense attorneys across New Mexico, and hire eight new lawyers in Carlsbad, Hobbs, Gallup, Las Cruces, Aztec and Ruidoso.

It is still not enough.

More arrests, more cases

Thomas Joseph Clear III, chair of the state’s Public Defender Commission, said New Mexico’s criminal legal system is stressed due to increased policing and more arrests on warrants.

“The stresses of having all those new cases come upon our clients and our attorneys to represent them,” Clear said.

The number of cases per year has increased by more than 19% since 2020, according to the public defender’s office. The office projects that by the end of this fiscal year, the number of cases will increase 11% over last year.

Baur said case assignments have surpassed the levels recorded prior to 2020. He said there have been more serious and time-consuming felony cases this year than in the last six years.

Since July 1, 2023 there have been 61 murder cases assigned to contractors, not just staff attorneys, Baur said.

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

To actually handle all of the cases they’re assigned with both in-house and contract attorneys, the public defender’s office said in its budget proposal it needs at least 897 attorneys. A study by the American Bar Association from January 2022, when they had fewer cases, showed they needed an additional 602 attorneys.

As of Nov. 13, the office also had a 14% vacancy rate overall, with an 18% vacancy rate among attorneys and 10% among core staff. Vacancy rates do not account for need based on caseload but rather simply describe how many jobs are paid for but not filled by anyone right now.

Rural representation

Rural parts of New Mexico remain incredibly difficult to staff, according to the office’s  presentation. For example, public defenders in the Fifth Judicial District in the state’s southeast corner have been working at a 52% vacancy rate for the last nine months.

As of September, the public defender’s office in Roswell was down six of nine attorneys, Hobbs was down three of eight, and Carlsbad was down three of six, according to the presentation.

Clear said the judges in Roswell asked the office to send attorneys from Albuquerque because there were not enough public defenders for clients. In Roswell and the surrounding Chaves County, Clear said in 73 pending felony drug cases, local prosecutors have not offered the defendants diversion options and are instead going to trial, resulting in “an incredible amount of work.”

Rep. Jack Chatfield (R-Mosquero) asked how much contract public defenders make for various cases, depending on the accusations against a person.

Deputy Chief of Contract Counsel Randy Chavez said contract attorneys are paid $6,500 for a murder case, between $850 and $930 for an armed robbery case depending on the jurisdiction, between $650 and 780 for a felony car theft case depending on the jurisdiction, and $220 for a misdemeanor retail theft case.

Clear pointed out these figures are the total compensation for a contractor across an entire case, not an hourly rate.

Baur said with enough resources, state public defenders can not only provide New Mexicans legal representation but also what is called “holistic representation,” meaning hooking people up with services through social workers, investigators and paralegals.

“In many cases, we are the best agency to do this because we — when we have time — develop relationships with people, and can make recommendations to the court and to the prosecution about how best to do this so that they are successful in the long term,” Baur said.

Update Nov. 27 at 11:45 a.m.: This story has been updated to clarify the rates paid to contract public defenders.

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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.