The Georgia Legislature created a new statewide public defender system in 2003 to fulfill its constitutional obligation to provide an adequate criminal defense for indigents. However, there is a raging ideological debate between advocates and taxpayers over the meaning of an "adequate defense" that dramatically impacts the policy, structure and funding of the system.

Unfortunately, the Public Defenders' Council has used its budget to usurp the policy-making authority of the Legislature by driving up the system's costs and providing the best defense that money can buy. This limits the system's availability and effectiveness and makes death penalty cases like Brian Nichols' prohibitively expensive.

Since its inception, the state's contribution has risen from 10 percent to approximately 40 percent of the total costs. Total expenditures for indigent defense in Georgia have reached $107 million, almost double the amount spent in 2000.

The recent downsizing of staff is not indicative of the failure of the Legislature to fund a system. To the contrary, it is evidence that the advocates have overbuilt a system which does more than required by the statutes.

The Council has built a system around the concept of maximizing the expenditure of available money rather than creating one that efficiently delivers the services called for by the Legislature. After perennially busting its budget, the Council manufactures a crisis and returns to the Legislature with threats of dire consequences if it does not receive additional funds. This strategy has the effect of forcing elected officials to increase funding or face a complete loss of a public service. It has resulted in a dramatic budget growth as compared with other state agencies.

Since 2005, state funds to the Council have increased 36 percent. In comparison, state funds to the Department of Human Resources increased 23 percent.

During the last legislative session, the Senate conducted a "zero-base budget" to determine the level of funding required for the system based upon what is mandated by statute. Even after repeated requests for the Council to produce a ground-up budget to justify their spending, they still refuse to do so, choosing instead only to criticize the Legislature without offering any alternative.

The Council and its staff have consistently misinformed the Legislature and the governor's office.

Although they now acknowledge their mistake, the Council made a decision to declare a conflict of interest in a massive number of cases and outsource those cases to private attorneys, who bill the state by the hour for their services.

In fiscal year 2008, the Council came to the General Assembly with a midyear budgetary shortfall of $3.6 million. The Council very publicly insisted that this was due to the more than 9,045 pipeline "conflict" cases. While the Council was successful in convincing the executive branch and House of Representatives that these funds were needed, the Senate insisted on verification. Such requests went unanswered.

Now we discover, and they admit, that the number of so-called pipeline cases was inflated by more than 100 percent to justify additional spending of taxpayer money. In reality there are currently only 4,430 cases in the pipeline. This was a result of 4,595 cases that were disposed of by the courts but continued to be maintained in their case management system, which tallies the number of "active" cases.

These cases have ballooned their budget largely because the cost per case for private appointed counsel in noncapital felony conflict cases has increased from an average of $367 in 2005 to more than $1,000 today. The Council attributes the increase in costs to the poor internal cost containment strategies. And unlike the previous system, since the taxpayers are picking up the tab, private attorneys do not have to factor financial considerations into their case strategy and decision-making.

Additionally, we are now told that certain "conflict" attorneys —- those whose representation of a defendant is characterized by the Council as having a legal conflict in a multidefendant case —- have been bilking the state through their billable hours submitted to the state for reimbursement. I have received one report that an assistant resigned due to the unethical billing practices in her office. One attorney is being criminally investigated for this fraud and others have unusual billing practices showing up in the audits. Another attorney reportedly billed the state more than 26 hours in a single day, which is difficult to justify even during daylight-saving time.

The fact that lawyers are being investigated and other offices are experiencing layoffs is the natural result of the mismanagement I have been consistently warning about. It is undeniable that this system needs a sharp eye overseeing its management. Left unchecked, it will continue to grow into another unaccountable, burgeoning state bureaucracy, and the taxpayers will be left holding an empty bag.

> State Sen. Preston Smith (R-Rome) chairs the Judiciary Committee.