The Alaska Public Defender Agency is facing rising caseloads and staffing shortages, even with a recent increase in funding to help stem the tide.
“The State of Alaska’s criminal justice system is operating on the fringes, barely able to protect against the deprivation of fundamental rights, barely able to respond in a professionally responsible manner to Alaska’s rising violent crime rates,” said Alaska Superior Court Judge Michael MacDonald.
MacDonald’s comments came after a public defender resigned a week before the trial of Alexie Walters for the 2017 murder of his girlfriend, Gertrude Queenie.
Funding for the agency has stayed stable or decreased over the last half decade even as felonies, particularly violent crimes, have increased. The agency received $1.4 million in the Fiscal Year 2020 budget, which is a 5% increase over the year prior, as part of Gov. Dunleavy’s push for public safety. The agency also received an additional $1.3 million from House Bill 49, to fund 10 more public defender and support staff positions.
Juneau is actually doing alright, according to David Seid, supervisor for the public defender office in Southeast, including Juneau, Ketchikan and Sitka.
“We have been shorthanded a few attorneys and that has affected us because our caseloads have been going up the last few years,” Seid said in an interview this week. “After next week, we’re actually going to have our full contingent of lawyers.”
The bad news
“I have bad news — it’s going to get worse before it gets better,” said former Alaska Attorney General Jahna Lindemuth in a panel last Friday at the annual conference of the Alaska Federation of Natives.
There’s been 30 percent increase of cases pending in Alaska Superior Court in the last two years, Lindemuth said, with more than 32,000 cases pending. Of those cases, roughly 7,300 are felonies, which are far more time and resource intensive for public defenders, Lindemuth said. Cases are mounting faster than they can be handled, Lindemuth said.
“We have a very dedicated group of public defenders who work their tails off every day to provide the constitutionally mandated defense for our clients,” said Benjamin Muse, deputy public defender of the criminal division with the Alaska Public Defender Agency. “Our criminal section has about 75 attorneys. Right now, 14 of those are vacant, a 20 percent vacancy.”
The situation is particularly dire for their more experienced lawyers who have the skill and the time in the trenches required to handle cases like murders and sexual assaults, which require deft handling and are becoming more frequent in Alaska, Muse said.
“Looking at the caseload numbers for our attorneys who handle serious cases, they’re extreme,” Muse said. “We need a well resourced system so we can punish the crimes where appropriate, but also avoid miscarriages of justice.”
Like the public defender who quit a week before a murder trial, citing mental exhaustion, public defenders are likely to be able to do a good job defending their clients if they’re not wildly overworked.
“They operate under incredible pressure. They operate under conditions where they have far more work than they could possibly do,” said Eric Smith, a former Alaska Superior Court judge.
Smith testified as part of the panel that letting limited lawyers available and shrinking resources for the public defenders was wildly unfair to either the victims of crimes searching for closure or for defendants who had the right to a speedy trial.
“Another area that could be expanded is bringing tribal courts and tribal ways of resolution into the state justice system,” Smith said. “I was a judge for 20 years and I really didn’t think what I did reduced recidivism at all.”
Muse also raised concerns about the situation for the courts in rural Alaska, adding that the Alaska Innocence Project received grant money to investigate the issue of wrongful convictions in the Alaska Native community.
“There are miscarriages of justice,” Muse said. “People are wrongfully accused and convicted of crimes. I was talking with the Alaska Innocence Project before I came in and they have federal grant money to research the issue of wrongful convictions within the Alaska Native community and they have serious concerns that the number of wrongful convictions is underreported. So a strong public defense function, a strong prosecutorial function and a strong court system are important to the justice system in Alaska.”
The good news
As Seid said, Southeast is in relatively good shape right now.
“As far as local lawyers go, we’ll have four in Juneau, four in Ketchikan, and one in Sitka,” Seid said. “We had shifted Prince of Wales here (to Juneau) for a while and now it’s going back to Ketchikan.”
With the strength in Southeast back up to where it’s supposed to be, Seid said the public defenders here will be best positioned to deal with the rising tide of crimes that are felonies once again due to legislative action.
“Things have been tough here, but we’re on the upswing because we finally have the necessary lawyers,” Seid said. “It’s really helpful that we’ll be at full strength.”
Seid said that crime has been climbing in the region, although it’s still lower than it would be in a major city. He also touted the competence of the public defenders here against all comers.
“It seems that there have been more felonies in the Southeast. And Prince of Wales has always been busy,” Seid said. “I do believe that our lawyers here can represent a client in a felony case as well if not better than a private lawyer.”
Why is it happening?
While defendants have the constitutional right to a swift and public trial, public defenders are hampered by both rising violent crime and felony rates and funding issues, Lindemuth said. Lindemuth said these problems began in 2014, when the state began to feel the impacts of opioid crisis even as it cut resources. A 26 percent increase in crime in that period ensued, Lindemuth said, with less resources to handle it. A large part of this can be laid at the feet of the Dunleavy administration, Lindemuth said. Lindemuth is an adviser to the Recall Dunleavy campaign.
“Why is this gonna get worse? This last year, the Legislature and the current administration undid criminal justice reform, increasing penalties and recriminalizing drug offenses across the board.” Lindemuth said. “There’s higher penalties, there’s more crimes, there’s going to be more cases.”
The adoption of House Bill 49 last summer, which reversed the easing of many felonies to misdemeanors put into effect by Senate Bill 91, a criminal justice reform bill adopted in 2016, is going to put much more work onto the desks of public defenders, Seid said.
“HB 49 is going to affect us,” Seid said. “There will probably be more felonies filed. There will be more people in custody pretrial.”
Dunleavy made it clear that a priority of his administration would be to increase public safety. He included extra money in House Bill 49 for five new attorneys and five new support staff in anticipation of an increase in caseloads HB 49 will create, said Dunleavy Communications Director Jeff Turner.
“Public safety officials now have the tools they need to make Alaska a much safer place to live, work and raise a family,” Turner said in a statement from the governer’s office Friday.
Dunleavy praised HB 49 when it came out, defending the harsh sentences and increased rate of felony charges as protecting law-abiding Alaskans. JPD Chief Ed Mercer said that SB 91 had made his life harder last February, though he said total repeal probably wasn’t the way either.
But Seid pointed to the rising tide of opioid abuse and rolling back the criminal justice reform attempted by SB 91 as major factors in the rising number of felonies. Treating opioid and meth possesion as felonies requires a lot more time and effort in a case than treating them as misdemeanors did. SB 91, Seid said, was prematurely terminated by the Legislature before it had a chance to show results.
“It was pretty amazing in 2016 that the majority of the Legislature was agreeing, looking at the data, that this could help. They passed some real reform,” Seid said. But before we could tell whether or not it worked, they changed it.”
• Contact reporter Michael S. Lockett at 757-621-1197 or firstname.lastname@example.org.