A Maricopa County agency that contracts with private attorneys to represent indigent criminal defendants is going to end the fiscal year over budget by more than $8 million, or about 63 percent.
County managers attribute the overspending to a glut of death-penalty cases and the high cost of defending them.
The Office of Public Defense Services has a long history of over spending by millions, and its spending has been under a “hyper review” by county management for the past three years. But the $200,000 to $400,000 per death-penalty case is a legitimate and necessary cost and does not cover anything beyond what the county is Constitutionally mandated to do for capital defense, County Manager David Smith said.
Most county departments will either make their budgets or be under at the end of the fiscal year. According to a March 10 budget-variance report, the only other excessive spending of significance was in the Maricopa County Attorney’s Office Civil Division, which at the time was $1.97 million over budget.
“It’s an unpleasant anomaly in a balanced budget,” said Smith.
County officials cite four reasons for the excess of capital cases and costs: Many cases had to be tried again after a 2002 Supreme Court decision, subsequent changes to state law put the imposition of the death penalty into the hands of juries, the imposition of higher standards for defending capital cases, Superior Court’s strict adherence to speedy trial rules and an increase in the number of capital cases filed in Maricopa County.
“We’ve had this bubble going through the criminal justice system, and this past year the Superior Court has made a real push to try to get through the bubble. And in the process of trying to get through the bubble we’ve had to really gear up in spending in association with the public defense services agency and try to get attorneys on,” said Sandi Wilson, assistant County Manager. “The pressure of getting that bubble through has been enormous and caused a lot of that cost to have gone up.”
The Office of Public Defense Services, which has a $14.4 million budget in 2009-10, is expected to get more money in its budget for next fiscal year.
Jim Logan, director of Office of Public Defense Services, said in a memo to Wilson in January that the office needs an additional $4 million a year to operate and $8.4 million over the next three years to address a backlog of capital cases.
“This assumes no additional changes in policies or annual filings for the next three years,” Logan wrote. “History has proven that this assumption is tenuous at best.”
Lee Ann Bohn, the deputy budget director who oversees criminal justice budgets, said the county will pay for this year’s overspending from the contingency fund.
The county has three separate agencies of public defenders to meet the Sixth Amendment requirement to provide legal counsel to indigent criminal defendants. The total of the three agencies’ budgets is $53.3 million.
Generally, the Office of the Public Defender will be first in line to represent indigent defendants, but cases will be sent to other offices if there is a conflict of interest. The other offices – the Office of the Legal Defender and the Office of the Legal Advocate – also step in when there are multiple defendants in a case.
Logan said it was a “perfect storm” of circumstances that led to a dramatic increase in spending.
The U.S. Supreme Court decision in Ring v. Arizona changed the rules in capital sentencing in Arizona in 2002, and subsequently the cases of 14 death-row inmates were sent back to Maricopa County Superior Court for re-sentencing. This time, juries rather than judges, determined if they deserved the death penalty.
Logan said those cases artificially inflated the inventory of death-penalty cases for years. The last of those 14 cases, which involves a 1996 murder, ended in a hung jury in January and is on its last days of a retrial, according to court records.
In response to the Supreme Court’s decision in Ring v. Arizona, the Legislature decided that juries not only determine whether defendants deserved death, but to also impose the sentence, which also jacked up the expense of capital defense.
In the days when judges imposed the death penalty, the defense didn’t have to incur the expense of preparing a case for leniency until after a conviction.
Under the new process, cases go immediately to punishment and leniency proceedings after the conviction, requiring the defense to begin preparing the case for leniency months or years before the case ever goes to trial. The defense has to incur that expense even if the case ends in the rare acquittal or dismissal or, more commonly, a plea deal.
A high number of death-penalty cases filed also played a part, but many of those cases ended with no death penalty. According to the Maricopa County Attorney’s Office, 74 of 117 death penalty cases from February 2007 until February 2010 ended in plea deals for a lesser punishment.
Logan estimated the county spent $12 million this year on death penalty cases in which no death penalty was handed out. That represents about 77 percent of all money spent on capital cases this year.
Logan said another factor that added to the expense of capital defense was the American Bar Association’s guideline that a capital defendant have, at a minimum, a team that includes a lead counsel with specialized training in capital cases, a co-counsel, an investigator, a mitigation specialist and someone to conduct mental screening.
The number of death-penalty cases filed in Maricopa County began to spike in 2000, but from 2004 to 2006 the county added 109 cases and resolved only 56, according to the County Attorney’s Office.
The Arizona Supreme Court recognized the growing crisis in Maricopa County in 2007 and created the Capital Case Oversight Committee.
Wilson said the committee made many recommendations that weren’t put into practice because they required additional resources at a time when revenues tanked.
In March 2009, Maricopa County Superior Court established a new policy of effectively eliminating continuances in capital cases. Court rules require capital cases to be tried within 18 months from arraignment, though the court had typically allowed continuances.
The strict adherence to the speedy trial rules created a need for more defense attorneys, Logan said.
“While the resolution of larger numbers of cases is ultimately good for everyone in the system, it compresses the expenses into a shorter period of time,” Logan wrote. “This is especially true of expenses for cases in which contract attorneys are representing the defendant.”
County managers are optimistic next year could be a watershed year in the backlog.
In 2010, there were significantly more resolutions than new filings, and the inventory of cases dropped from 117 the year before to 93.
“I’m hopeful we’ve peaked out and the numbers will go down,” Smith said.