Disclaimer: The views expressed in this post are those of the author, and do not necessarily reflect views of the Journal, the William H. Bowen School of Law, or UA Little Rock.
By: Alaina McWhirter
This past March marked the 60th anniversary of Gideon v. Wainwright, the Supreme Court’s landmark decision that held the right to defense counsel as a fundamental and essential right to a fair trial. However, on that day in 1963, the Court made no attempt at suggesting how public defense should be provided and states have varied in their models of implementing such a constitutional requirement since its inception. For example, after years of allowing Arkansas to problematically handle indigent defense at the county level, in response to Independence County v. State, the Arkansas Public Defender Commission was created in 1993. From that point on, the State of Arkansas assumed the responsibility of paying public defender salaries, and public defenders’ offices in the State have since been dependent upon the support of the executive and therefore, those persons who may not, and often do not, share the same mission.
For example, on January 10, 2023, the Governor of Arkansas, Sarah Huckabee Sanders, delivered her inaugural address from the steps of the Arkansas State Capitol. During her address she stated, “Our vision is for an Arkansas…where jobs are abundant and paychecks are rising.” Ironically, within hours of Sanders’ inauguration on January 10, 2023, she signed an executive order prohibiting most state agencies from recruiting, hiring, or promoting staff. Consequently, this enactment has hindered public defenders across Arkansas from filling vacancies within their offices, and in turn, straining their caseloads beyond what is ethically allowed.
On January 27, 2023, Gregg Parrish, executive director of the Arkansas Public Defender Commission, composed a letter to Governor Sanders on behalf of the commission in regards to her hiring freeze. Parrish began his letter by stating “[he could] think of so many actions pertaining to [his] position [he] would rather be performing than writing this letter.” Parrish identified the issues his attorney’s have faced for years, such as unmanageable workloads, the inability to attract qualified employees, and the general wage gap between public defenders and their opposing counsel. An issue unstated in Parrish’s letter but not to be overlooked is how during the COVID-19 pandemic, the Supreme Court of Arkansas waived speedy trial requirements and extended the suspension of jury trials, leaving victims waiting for justice and public defenders with a case build-up even further beyond ethical standards. And now, with Governor Sanders’ hiring freeze, Parrish asserted, “…things will go from very, very bad to worse.”
The most unfortunate part of Gov. Sanders’ ploy of “limiting the expansion of government” is that this is not an uncommon occurrence. Not because former Arkansas Governor Asa Hutchinson initiated a hiring freeze after taking office in 2015. And not because government job manipulation is a seemingly common occurrence. But instead because public defender’s are perpetually indebted to the political will of the electorate. And when public defenders, like Gregg Parrish, take a position in conflict with their funder and governing authority, their organization and their job can be put in jeopardy.
For instance, Maryland’s Chief Public Defender in 2009 was fired for refusing to scale back operations that “encouraged too much zealous representation” after the Board of Trustees that governed the indigent defense system pushed for budget cuts. The Legal Aid Society in Onondaga County, New York lost its contract to handle city court cases after the Director was questioned by the legislature for filing motions and making discovery requests rather than pleading cases at their arraignment. And in 2020, Montgomery County, Pennsylvania, public officials fired its top two public defenders after the chief public defender filed an amicus brief about the state’s cash bail system. The results are in and they are clear: public defenders either conform to what the legislatures and executive officials want or they will reap the repercussions. And often what those officials want is not expansion of public defenders offices and the filling of vacancies within those offices. It is not client-centered advocacy or zealous representation. It is quick, easy, and borderline ineffective assistance of defense counsel.
It is safe to say Sarah Huckabee Sanders takes the traditional tough on crime approach. She announced in her inaugural address that she will ensure violent criminals never, ever step foot in Arkansas communities again. She has since approved overhauling Arkansas sentencing laws and eliminating parole eligibility for certain violent offenses. This approach will surely lead to more charges, more arrests, and more cases assigned to Gregg Parrish’s commission, as the Arkansas Public Defender Commission represents at minimum, 80% of all criminal defendants charged with a felony. The consequences of Gov. Sanders’ tough on crime approach in conjunction with her hiring freeze and the Commissions’ now inability to fulfill vacancies within defense offices puts the Arkansas courts and public defenders system beyond crisis. I am certain that Gregg Parrish is aware of the adversarial nature of the relationship between his office and the platform on which Gov. Sanders stands on. I have no doubt that at times like this, Parrish wishes his office was independent of Gov. Sanders’ conflicting priorities, free to fill the vacancies that represent indigent clients across the state. Because, in fact, an aspiration for all public defenders is independence. It is the ability to advocate for clients without undue political influence and interference by government overseers. Yet, throughout this country and throughout Arkansas, the independence of public defenders is corrupted by the mere fact that their funds come from governments with conflicting priorities. However, the priorities of the Arkansas Public Defense Commission are those that the Governor of Arkansas should not find in conflict with her agenda but rather priorities she should be proud her state funded criminal defense system perseveres to uphold. Because “an adequately funded and staffed public defender system does not mean we care more about an accused [sic] rights than we do those of a victim.” Instead, “it is an indication we recognize the oath we took to uphold Arkansas and the U.S. Constitutions…[and] an acknowledgement that a poor person, despite his [or] her crime, is afforded the same constitutional protections that a person with enormous wealth” is afforded.
About the Author: Alaina McWhirter is a second-year law student at the William H. Bowen School of Law. She is a member of the Arkansas Journal for Social Change and Public Service and serves as Secretary of the Student Bar Association.