Until last summer, Shondel Church worked construction six days a week in Kansas City, Missouri, to provide for his wife and four children. That changed on July 19, 2016, when he was arrested and charged with felony theft — a charge resulting from what was essentially a family dispute. After Church’s father died there was some confusion over which of his possessions would be given to whom. Church believed a generator his father had owned was meant for him; his stepmother apparently had a different idea, and Church was charged with stealing the machine.
Unable to afford an attorney, Church was appointed counsel from the Missouri State Public Defender office. Indeed, the constitution guarantees a defendant’s right to counsel — a right that theoretically is not dependent on a person’s income.
But according to a class action lawsuit filed March 9 against the state of Missouri by the ACLU on behalf of Church and others, that is precisely how the provision of indigent defense has played out in Missouri. The office is scandalously underfunded, its staff chronically overworked, and its clients left for months without representation — or forced to plead to charges of which they may or may not be guilty. According to the ACLU, the situation that has persisted for years, known to state officials, and yet is almost entirely ignored.
Since 1972, the state of Missouri has sought to meet its constitutional obligation to provide lawyers for poor criminal defendants via the operation of a state-funded public defender system. As of 2016, the office had nearly 600 full-time employees and an annual budget of more than $36 million. That may sound like a significant investment, but last year alone the office was tasked with handling more than 111,000 criminal cases — including both juvenile and adult defendants charged with everything from low level misdemeanors up to death-eligible capital murder.
Missouri’s public defender system ranks 49 out of the 50 states for funding; its lawyers have shockingly burdensome workloads and are seriously underpaid — almost certainly factors that contribute to the office’s high rate of attrition. In Church’s case the deficiencies of the public defender office played out to disastrous, if not predictable, effect.
For starters, Church had not yet been assigned an attorney the first time he appeared before the court — so there was no one there to advocate for him in an effort to secure his pretrial release from jail. Instead he was slapped with a $5,000 bond that he could not pay, meaning he would have to remain in jail while the case was pending. He did not see an attorney until some six weeks later, in early September. During that meeting the assistant public defender, Michael Gass, told Church that he believed Church’s was a winnable case, but cautioned that he would likely have to remain in jail for six months or more before Gass could be ready to take it to trial. As a result, he suggested — prior to even looking into the case — that Church might instead agree to a plea deal. Doing so would saddle him with a criminal conviction, but would likely get him out of jail far sooner.
Church’s wife was not working at the time, and even though he did not believe that he should be charged with any crime, he ultimately decided to follow Gass’ advice and enter a plea.
But that also turned out to be difficult. Shortly after Church first met Gass, the lawyer resigned his position without telling him. Church was batted around to two different public defenders in two different courts before he was ultimately able to enter his plea and was released from jail — on November 21, 2016, more than five months after he was arrested.
Although he accepted a probated sentence and wouldn’t spend any more time behind bars, Church had already lost his job, and his family lost their home. Church is now working again, but the impact of his run-in with the criminal justice system has taken its toll. “In jail, you’re starving on what they give you and you’re dying to get out,” he said. “I was hoping things would move faster — but those 129 days cost me a whole lot: I lost all the time working, and I finally had to give up and plead guilty just to get out and help my family.”
There is no reason to believe that Church’s is an isolated case. Among those named in the ACLU’s lawsuit is a man whose lawyer failed for weeks to return phone calls from his client or his client’s sister who was desperately trying to get in touch to alert the attorney that her brother did not have access to needed medication, and a woman who has been in jail for more than two years waiting for her attorney to have enough time to investigate her case. And in the juvenile system things might even be worse: the Department of Justice has reported that 60 percent of kids accused of crimes in the state go without appointed counsel. According to the lawsuit, when public defenders do handle juvenile cases they spend just an average of 4.6 hours on each case — well below the minimum time recommended by the American Bar Association.
Missouri officials — from prosecutors and judges, to state lawmakers and the governor — have been warned for years that the system is on the verge of a collapse, but they have done little to stop it from happening, to the detriment of tens of thousands of individual defendants. “The effect of the workload, the low salary and the turnover has not surprisingly resulted in morale problems in some offices. Many attorneys feel that without additional resources, they will not be able to provide competent representation to all of their clients,” a 1993 report on the Missouri system reads. “We echo this statement in very strong terms.”
The state’s current head public defender, Michael Barrett, who was appointed in 2015 — and who is also a named defendant in the ACLU’s suit — has had his share of run-ins with the governor in an effort to secure additional funds for the system. Barrett last year sued Gov. Jay Nixon over the his withholding of critical funding allocated to the defender system by the legislature (the withholding of funds from the system appears to have become a yearly event). In August 2016 — at the very time that Church was languishing in jail — Barrett even used his power to assign case work to any member of the Missouri State Bar to assign Nixon himself with providing representation to a needy defendant (it didn’t work).
“I’ve done everything short of setting myself on fire to draw attention to the situation that the state has put us in,” Barrett wrote in an email to The Intercept. “That poor persons in this state, including poor children, are being pushed through the criminal justice system, fined excessively, and deprived of their liberty, without receiving the benefit of an attorney who has the necessary time to look into their case.”
To Jason Williamson, senior staff attorney with the ACLU’s Criminal Law Reform Project, the situation is simply untenable: “I think really what it boils down to is that poor people who have been accused of crimes are not the most popular demographic in the world, so from a political standpoint you have lawmakers who have no incentive, really, to champion the rights of indigent defendants, despite the fact that we’re talking about constitutional rights here and it doesn’t make much difference what the public thinks about it.”
And the failure to adequately fund the system causes ripples throughout the criminal justice system and could potentially impact every aspect of the system. If the public defender system collapses, prosecutions could grind to a halt while the state’s jails fill up — all at great public expense. “Only because they can’t afford the cost of a private attorney, Missourians are stripped of their chance for a fair shake in court,” Williamson said. “This isn’t a matter of guilt or innocence. When the state’s public defense system is shortchanged, the entire criminal justice system falters.”
Ultimately, he said, the state needs, “sooner rather than later,” to agree to sit down with stakeholders and “figure out, one, exactly how much additional funding and resources are needed, and, two, figure out a way to provide those resources,” he said. “I mean that’s really what it boils down to.”
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