After the state budget passed in September, some say a shift in control of funding for North Carolina’s public defenders might have passed through the legislature without a fair trial.
Part of the 429-page state budget, the change denies the Office for Indigent Defense Services — which oversees the state’s public defense — the ability to determine its own budget. That authority, which was not mentioned in either the House or Senate versions of the budget, now belongs to the executive director of the Administrative Office of the Courts.
“It wasn’t something we were fighting because it didn’t exist quite frankly,” said Thomas Maher, executive director of the Office for Indigent Defense Services. “It’s kind of buried in the budget.”
Elliot Engstrom, an attorney with the conservative-leaning Civitas Institute, said he could see the budgeting change as a part of N.C. Supreme Court Chief Justice Mark Martin’s rethinking of the court system.
“It’s likely that they’re trying to kind of have the ability to really have all the pieces at their disposal,” Engstrom said.
Regardless of political opinion, he said it is a clear move to take power away from the public defenders’ office.
Though nothing has changed in practice yet, Maher said indigent services could feel a new pressure to shift funding away from certain cases, like capital ones.
“That’s a decision, that’s a legitimate decision but should be made by an agency that’s only concerned about the defense function and not concerned about prosecutors and judges,” he said.
This would be a shift from the state’s once model indigent defense services, Maher said.
Susan Brooks, a state public defender administrator, said what troubles her is the precedent being challenged — the defense as an independent entity.
Now in competition with other court programs, Brooks said clients might see effects of potential funding shortfalls firsthand.
“I do worry that if indigent defense is reduced to just another court program and has to compete with the court programs, the clients will suffer because there’s nobody else really looking out for them,” she said.
Andrew Wells, deputy attorney general for UNC’s honor system and an aspiring public defender, said those who require a public defender are a very convenient population to disempower and assume guilty — given frequent guilty verdicts.
“It’s more inconvenient to assert that the people who are trying to defend them — regardless of their intentions — are overworked, overburdened, understaffed,” he said.
Maher said factors like salary have driven many young public defenders to take second jobs to pay off law school debt.
“People don’t go into this work for money, but you’ve got to make a living on it,” he said. “And if you can’t, then people have to cut corners on their appointed work to spend more time on retained work.”
To improve representation, Engstrom suggested a public defender voucher system, not unlike the state’s private school vouchers. Then, he said defendants could choose any public defender or attorney they deem the most experienced.
“Instead of government throwing a lawyer at you, (vouchers) give you the power to choose which lawyer you have representing you,” he said.
Maher said ultimately you can’t underfund a system and not expect to see changes.
“Paying for public defense is always a battle,” he said. “It’s never the most popular thing and that’s sad because I think it’s incredibly important.”
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