ST. LOUIS — The American Civil Liberties Union, ACLU of Missouri, Roderick & Solange MacArthur Justice Center, and Orrick, Herrington & Sutcliffe have filed a class action lawsuit to end Missouri’s unconstitutional use of public defender “waiting lists”—a practice that systematically deprives thousands of people accused of crimes across the state every day of the court-appointed counsel required by the Constitution.
As of January 7, 2020, over 4,600 individuals, roughly 600 of whom are currently in pretrial detention, were on the waiting list for an attorney in the State of Missouri. These individuals have been charged with crimes and have already qualified for a court-appointed attorney, but are being forced to wait for an indeterminate amount of time for one to become available due to an overburdened indigent defense system. As a result, a criminal defendant will likely wait months, or sometimes even years, before they are assigned an attorney.
The lawsuit details the devastating impacts of attorney waitlists on those who have been charged with crimes and left to fend for themselves and urges the court order the state of Missouri to immediately stop the practice and either immediately appoint counsel or drop any charges pending against defendants who have not been provided with an attorney to defend them.
“While we understand that public defenders in Missouri are tasked with the daunting challenge of providing competent representation to all of their clients, even in the face of extraordinarily excessive workloads, sacrificing the fundamental constitutional rights of people charged with crimes is not a viable solution,” said Jason Williamson, deputy director of the ACLU’s Criminal Law Reform Project. “If the State of Missouri cannot afford to hire enough public defenders to properly represent all indigent defendants, it should either reallocate its resources accordingly or significantly decrease the number of people it chooses to prosecute in criminal court.”
Despite being denied an attorney, individuals are still expected to navigate the court system while they wait for a lawyer. After being placed on the waiting list, individuals receive no access to an attorney during critical stages of the criminal legal process, including at arraignment, where bond is often determined with input from the prosecution, but without advocacy from defense counsel. As such, indigent defendants placed on waiting lists are often forced to remain in jail simply because they are unable to advocate effectively for a reduction in their bond amount or release on their own recognizance. Several of the named plaintiffs, when attempting to argue for lower bond, were told by the judge that they had to wait, in detention, until counsel was appointed.
“Reliance on waiting lists constitutes outright denial of counsel to those most vulnerable within the criminal legal system,” said Amy Breihan, attorney with the MacArthur Justice Center. “Without intervention by the court, public defenders and judges will continue to endorse this practice that destroys lives, communities, and any semblance of integrity in criminal proceedings across the state.”
Individuals placed on waiting lists are severely impacted outside of the courtroom as well. Those who must wait in pretrial detention do so without the opportunity to communicate with counsel or build a defense. They often lose their jobs, their housing, any financial stability they may have had, and regular contact with their families. While this is happening, potentially helpful evidence gets destroyed, lost, or eroded. Key witnesses disappear or have their memories fade.
Detailing the urgent and ongoing impact of the waiting lists, the petitioners are urging the court the cease the practice and either appoint private counsel immediately or, if no lawyers are available, to drop the charges entirely.
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