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Budget Cuts Will Cripple Montana's Already Overburdened Public Defenders, Attorneys Say

Montana Capitol, Helena, MT.
William Marcus
Montana Public Radio
Montana Capitol.

This week, lawmakers are considering how to fund the Office of the State Public Defender, that provides legal counsel to people who couldn’t otherwise afford it.

During the last two days of hearings, attorneys from across the state gathered in a small third floor room in the Capitol, telling lawmakers about budget cuts that they say are adding to their already burdened work.

"My stress is through the roof."

This is Alisha Backus, she's a public defender in Kalispell. She's been on the job for about a year and a half. During that time a statewide budget crunch has pushed the Public Defender Commission to outline cuts to offset an anticipated $3.5 million shortfall — that’s about 5 percent of the Office of the Public Defender biennium budget.

Some of those cost savings come in the form of hiring freezes, moving around discretionary funds, or proposed legislation that will free up attorneys' time to work on other cases.

The Commission's plan also limits the use of outside contractors to help with public defenders workloads.

"Part of this mitigation means that I take all cases; I take misdemeanors, I take felonies, I take every type of felony, I take involuntary commitments, adoption, dependency neglect cases, and also guardianship and juvenile cases," Backus says. "In fact, I am assigned right now lead council to a deliberate homicide case, with a year and a half experience."

Backus and at least half a dozen public defenders spoke in front of panel seven lawmakers Monday and Tuesday, who are in charge of reviewing budgets in the state's justice system.

"The biggest challenge we have is simply the number of cases coming into the system," says Chief Public Defender Bill Hooks.

"The biggest challenge we have is simply the number of cases coming into the system."

Hooks says public defenders have no control over the number cases they have to work on. Montana law requires that if someone can't afford an attorney, the state will provide one.

And right now, caseloads are growing. Hooks says courts are especially seeing an increase in the number of criminal and child abuse and neglect cases. He says abuse and neglect cases have increased 50 percent the last two years:

That growth has some public defenders worried that they won't be able to ethically continue doing their job.

"It’s a concern to everybody in OPD, because if the volume of work is too excessive, we fear that we are providing less than the level of ethical representation that is required."

Hooks says, in some cases, if a court determines that public defenders didn’t do a good enough job, it could mean the whole trial has to be done over again.

"It's a concern to everybody in OPD, because if the volume of work is too excessive, we fear that we are providing less than the level of ethical representation that is required."

Other attorneys fear their current workload burden could end up costing them their license to practice law:

"We’re not giving effective, competent representation, and that is required by our constitution. This is important, you've got to fund us," says Nicole Gallagher, a public defender in Billings.

Gallagher says she handles felony cases, and currently has about 80 she's working on. She says she’ll turn over that caseload several times a years, exceeding the yearly workload limit of 150 felony cases prescribed by the American Bar Association.

"If I’m not giving competent, effective representation, that is a license issue, and I lose my license. And then you have another poor person out there who needs help and can’t afford it."

When public defenders can't represent every defendant in a single case, for conflict of interest reasons, or when they just have too much work, public defenders sometimes get help from outside attorneys.

But, under the budget cuts outlined by the Public Defender's Commission, some of that outside contracting would stop. And in some places that’s already happening.

Again, Nicole Gallagher:

"This mitigation plan has eliminated the contract positions, which means that all of the cases that would have gone to contract attorneys — there was some 62 in my region before this mitigation plan — now come in-house. That is absolutely outrageous for anyone to try to give effective and competent service."

There are currently a handful of bills moving through the legislature that aim at easing caseload burdens and shifting around resources to help the office of public defender keep up with its work.

Rep. Kimberly Dudik (D) Missoula.
Credit Montana Legislature
Rep. Kimberly Dudik (D) HD-94.

Throughout the legislative session, officials in a variety of agencies within state's justice system have told lawmakers that rising caseloads are burdening their workers.

After the first day of hearings, Democratic Representative Kimberly Dudik took a moment to address the small crowd of public attorneys gather in the Capitol hearing room. She's one of the legislators in charge of reviewing the office of public defender budget, and deciding how the office gets funded.

"It’s not that we don't hear what you’re saying, because we hear what you're saying. But, as you see, we have no money in the state budget," Dudik said. "We can't just keep hiring more employees, so we're trying to figure out how do we make the agency function and give you the resources you need."

Lawmakers are expected to vote on the funding of the Office of the State Public Defender, Thursday.

Corin Cates-Carney manages MTPR’s daily and long-term news projects. After spending more than five years living and reporting across Western and Central Montana, he became news director in early 2020.
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