Public defender shortage means some Alaskans could lack state-appointed attorneys for felony cases in Nome, Bethel
ANCHORAGE, Alaska (KTUU) - Alaska Public Defender Samantha Cherot said that staffing shortages in Nome and Bethel could leave some Alaskans without state-appointed attorneys in Class A felony and unclassified felony cases.
Cherot sent letters to Second Judicial District Presiding Judge Paul Roetman in Nome and Fourth Judicial District Presiding Judge Terrence Haas in Bethel on Jan. 31. In the letter to Haas, Cherot wrote that only two lawyers with the Public Defender Agency in Bethel have the necessary experience to represent people charged with Class A felonies and unclassified felonies. Cherot wrote that the agency would not accept new cases in unclassified and Class A felonies starting on Feb. 13.
“As you have previously recognized, the caseloads of the lawyers representing individuals charged with unclassified and class A felonies are too high to allow them to represent each client consistent with their ethical and constitutional obligations,” Cherot wrote. “Last year, the agency took steps to reduce the caseloads of its two most experienced lawyers, but it has been unable to maintain the reductions it implemented and cannot further reduce their caseloads to numbers consistent with their ethical and constitutional obligations if it continues to accept new appointments in unclassified and class A felony cases.”
The letter notes that Rules of Professional Conduct require lawyers to have necessary competence, which includes “the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.”
Additionally, public defenders are constitutionally obligated to “provide their clients with effective assistance of counsel.”
In her letters, Cherot noted that the U.S. Supreme Court referenced the American Bar Association standards and National Legal Aid and Defender Association Guidelines.
“Before agreeing to act as counsel or accepting appointment by a court, counsel has an obligation to make sure that counsel has available sufficient time, resources, knowledge and experience to offer quality representation to a defendant in a particular matter,” the NLADA guideline says. “If it later appears that counsel is unable to offer quality representation in the case, counsel should move to withdraw.”
Cherot said that recruiting public defenders to Alaska is difficult statewide, not just in Nome and Bethel. In an email, Cherot said that four or five attorneys with relevant trial experience are needed to serve as public defenders between Bethel and Nome.
“The agency’s trial lawyers with the training and experience to handle unclassified and class A felonies are at capacity. All carry significant caseloads (on average, approximately 100 cases, including an average of 25 unclassified and class A felonies) and approximately half are supervisors with the additional responsibility of managing a team of attorneys and staff or an entire office,” Cherot wrote in an email. “For the agency to decline additional appointments in those jurisdictions; the agency notes, however, that it may need to take similar action in Palmer Superior Court, if expected resources do not materialize in the next few weeks.”
Public Defender Agency Supervising Attorney in Palmer Timothy Ayer declined comment on the potential staffing shortage. Alaska Court System Public Information Officer Rebecca Koford also declined to comment on the potential staffing shortage in Palmer mentioned by Cherot.
Office of Public Advocacy Director James Stinson noted that while his office provides the same services that the public defenders do, they also have additional responsibilities including public guardians, elder fraud and court-appointed special advocates, among others. For the Office of Public Advocacy to be assigned a criminal case, there must have been a conflict of interest with the public defenders, under the Professional Conduct rules.
“The PDA is designed to be the frontline agency and handle the majority of the cases. OPA is designed to find representation for anyone that cannot be represented by the PDA due to the specific facts of their case,” Stinson said in an email. “The legislature and the administration have been very receptive to the needs of the agency, and I have greatly appreciated working with them. This is a unique issue related to staffing: we need more people. Particularly people with high level felony trial experience.”
Last year, Rep. Andy Josephson sponsored House Bill 226 which provided a 20% raise for all public attorneys and increased by 15% salaries for court system employees, which includes “positions within the Department of Law, the public defender agency, and the office of public advocacy that require admission to the practice of law in this state as a condition of employment.”
Josephson said that during his four years as chair of the finance subcommittee for the Department of Law, he heard repeatedly from the department that they were struggling to entice people to come to Alaska and work for the department. Josephson said that he has been looking at rural housing for public employees as a means to help solve some of the retention issues with public defenders.
“It’s a dire problem right, because clients need representation from the moment they’re charged. In fact, without advice and counsel, they are likely to make mistakes against their self-interest,” Josephson said.
Josephson said that he told Gov. Mike Dunleavy’s Office of Management and Budget Director Neil Steininger that the Legislature may be willing to support a figure far greater than the over $3 million included in the governor’s capital budget for public employee housing in rural areas.
“There are rules of ethics and professional responsibility and if they think they can’t handle the load, they should say so,” Josephson said. “I feel passionate about that so that means the rest of us, attorneys, the courts, have to come to the rescue and we have to solve this collectively.”
Josephson introduced another piece of legislation this year, House Bill 22, that defines pensions and benefits for state employees. It passed 4-2 out of the Committee on Community and Regional Affairs on Thursday and will now move on to the House State Affairs Committee. Josephson feels that defined state employee benefits could also help retain public defenders.
“People want pensions,” Josephson said. “They want the government to invest in them and take some risks along with them and participate in their retirement plan in a meaningful way, and that could be an important factor. And I looked at, my bill has been designed to cover public safety workers, police, fire and corrections. But there were times where I’ve thought, you know, I really need to add defense counsel and prosecutors, because they’re part of the public safety system.”
Gov. Mike Dunleavy signed HB 226 on August 1 of 2022, and the law went into effect on Oct. 30 of 2022. However, Cherot said that the pay increases have not solved the staffing issue. In addition, the Governor’s supplemental budget that was submitted last week contains an additional $3.1 million in funding intended for the Office of Public Advocacy and the Public Defender Agency.
“The supplemental funding is in addition to the Governor’s increased funding to hire more attorneys, higher salaries for attorneys and more support staff positions in the current state budget,” Deputy communications director Jeff Turner said in an email. “Governor Dunleavy will work with the Department of Administration and the legislature to determine if this level of financial support is sufficient for the Office of Public Advocacy and the Public Defender Agency to handle the emergent issue of caseloads in Bethel and Nome.”
“Despite these efforts the Agency continues to experience vacancies,” Cherot wrote in an email. “With a few additional attorneys with the necessary training and experience to handle unclassified and A felonies, the situation could improve quickly. Otherwise, the agency needs time for its existing qualified attorneys to resolve many of their pending cases before they can ethically accept new cases or for newer attorneys to gain the necessary experience to be able to handle these case types.”
A backlog of cases developed during the COVID-19 pandemic, exacerbating the issue statewide. Additionally, with few qualified applicants, the Public Defender Agency has had difficulty filling vacancies left by outgoing attorneys. While Cherot wrote that the agency has “often” counted upon private lawyers who were contracted to provide assistance during staff shortages, not enough are available to handle the current caseload.
In his final State Judiciary Address to the state legislature on Wednesday, Supreme Court Chief Justice Daniel Winfree addressed the shortage with state lawmakers.
“Trial scheduling and trial logistics is a difficult, difficult thing,” Winfree said in his speech. “We know that the agencies are working hard to stabilize their staffing and to clear cases and we know that with your help, and with the agency lawyer pay increases in the budget, that’s going to play an important part.”
This article has been updated to include additional information from the Office of Public Advocacy, Rep. Andy Josephson, and the annual State Judiciary Address.
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