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Scathing report hurts case for indigent defense funding

By Dave Williams

dave.williams@graypub.com

ATLANTA - To Georgia lawmakers trolling for votes, funding a statewide network of public defenders has never been the most popular use of tax dollars.

But indigent defense may be a tougher sell than ever this year following the recent release of a report accusing the agency in charge of the program, the Georgia Public Defender Standards Council, of deceptiveness and mismanagement.

"It's brutal in its critique," said Senate President Pro Tempore Eric Johnson (R-Savannah).

The statewide system was created in 2003 out of a hodgepodge of local operations that varied so much from county to county that some jurisdictions were being sued for failing to provide a constitutionally adequate defense for criminal suspects.

But lawmakers didn't agree to fund the new system until the following year, when they approved a significantly increased state commitment intended to allow counties to reduce what they were having to spend defending poor people accused of crime.

Thus far, it hasn't worked out that way.

According to a report issued this month by a legislative oversight committee, the state's contribution to indigent defense has risen from $7.7 million the year the system was created to $40.3 million this year.

Yet, Georgia's counties are spending virtually the same, nearly $67 million this year compared to more than $70 million in 2003.

As a consequence, overall spending on indigent defense this year - $107.1 million - is nearly double what the state and counties combined spent in fiscal 2000.

"They're really struggling to live within their budgets and to understand that the legislature has the authority to set them," said Sen. Preston Smith (R-Rome), the oversight committee's chairman. "They want the most perfect system they can design. We have to balance priorities."

Poor budgeting

But the shortcomings the report found go beyond an agency simply looking out for its own needs and not considering those of other areas of state government.

It accuses the council of operating a budget process that is constantly in crisis mode.

That works well for the agency in the short term, according to the report, because it ends up getting more money than it should. But in the long run, the report warns that such practices hurt the council's credibility with legislative budget writers.

"The council ... operates a budget far in excess of what was appropriated and then returns to the General Assembly demanding that the legislature 'must' make an emergency funding appropriation," the report said.

"The council ... returns each year with threats of dire consequences if they do not receive additional appropriations. ... Any other state agency is prohibited from this practice."

The report also accuses the agency's staff of not being forthcoming in providing information to help the legislature and governor's office make funding decisions.

"They want to share some information, but not other information," Smith said. "They need to be more transparent."

Despite the report's findings, however, it doesn't appear that the council is wasting money, said Kem Kimbrough, who handles criminal-justice system issues for the Association County Commissioners of Georgia.

He said while county officials are concerned that they're still spending the same amount on indigent defense as before, the total price tag is about what they expected.

"The amount of money counties were spending before the system was created wasn't sufficient," Kimbrough said. "About $110 million is what it always has required. That number may be foreign to some folks, but it's been out there since 2002."

The problem, Kimbrough said, is not the overall cost of the program. It's that the state is not contributing what was anticipated when the statewide system was created.

"The state was supposed to come and save the day," he said. "They haven't lived up to that."

Nichols effect

But the Brian Nichols death penalty case has left a bad taste in the mouths of the lawmakers the council is asking to step up with more funding.

Since Nichols was charged in the 2005 Fulton County Courthouse shootings, his defense has run up a tab of $1.5 million. A key factor driving the bill has been the number of outside lawyers brought in to help with his defense.

Legislators are worried that, without stricter controls on the council, other death penalty cases could come along and spiral out of control.

But Kimbrough said more of the state's decision-makers are coming to understand that the Nichols case was an exception and aren't going to blame the whole system for what has happened in defending the accused quadruple murderer.

Another potential factor that could help the council win favor from lawmakers was the appointment last July of former Republican Rep. Mack Crawford as the agency's director.

Rep. David Ralston (R-Blue Ridge), a member of the oversight committee and chairman of the House Judiciary Committee with jurisdiction over criminal law, said Crawford inspires confidence in his former colleagues that he will be able to turn the agency around.

"We have to give him time to take control," Ralston said. "He brings a political feel for what it will take to save the system ... I think it's a system worth saving."