Crisis in Georgia’s public defender system fuels case backlog, jail overcrowding

Credit: Natrice Miller / Natrice.Miller@ajc.com

Credit: Natrice Miller / Natrice.Miller@ajc.com

Critics say the Kemp administration has mismanaged the state’s public defense system.

In February, Keisha Steed, a state public defender in Fulton County, grew weary of the struggle to get basic tools to defend her indigent clients: Investigators, psychological evaluations, even office printer paper. All were in short supply.

Steed posted her frustrations on an office group chat. She also filed a formal complaint with human resources.

A month later, her bosses at the state fired her, claiming she had created a hostile work environment. Still, Steed doesn’t regret raising the alarm on behalf of the poor Georgians she represented.

“I’m not going to smile and laugh when I know my clients are not getting the defense they need,” she said.

Like Steed, career public defenders have left the Georgia Public Defender Council (GPDC) in droves during Gov. Brian Kemp’s tenure. The exodus has only exacerbated the state’s pandemic case backlog and an overcrowding crisis in local jails.

Most criminal defendants in Georgia — roughly 85% — are too poor to pay for their own defense lawyers and rely on state-appointed attorneys. In stark contrast to former Gov. Nathan Deal’s administration, Kemp and his appointee to lead the agency, Omotayo Alli, have prioritized cost cutting over ensuring poor Georgians receive a basic defense in the courts, critics say.

More than 600 people were unrepresented in Georgia as of August, including 40 who are minors, GPDC data shows. Nearly 200 of the unrepresented are in Fulton County. Many have been in jail for weeks, months or even years while they await trial.

Judges have voiced frustration about defendants continually showing up to court without attorneys, delaying proceedings and clogging the courts. Meanwhile, attorneys who have brought attention to problems within the state public defenders agency have faced retaliation, roughly a dozen current and former public defenders say.

ExploreIn Georgia, hundreds of people charged with crimes have no legal representation

Many of the more than two dozen attorneys, judges and others with knowledge of the office spoke to The Atlanta Journal-Constitution on the condition of anonymity, expressing concern that they could lose their jobs or face other retribution for speaking out.

“The pandemic is the straw; the camel was already fully loaded,” said Jason Sheffield, president of the Georgia Association of Criminal Defense Lawyers (GACDL).

Kemp’s office did not respond to a request for comment. Alli declined multiple interview requests. GPDC spokesperson Thomas O’Connor said that the agency has been working to address the hundreds of unrepresented defendants and on Thursday said the number of unrepresented was down to 25. He added that the agency revamped its case assignment process and boosted attorney pay.

“Leadership has worked tirelessly to make inherited and seemingly intractable challenges manageable,” O’Connor wrote.

The Southern Center for Human Rights, a legal advocacy group in Atlanta, expressed skepticism at the GPDC’s assertion that the backlog was under control. The center said they are talking to inmates on the original list of 600 that still don’t have representation.

“It’s our understanding from court observations and interviews with accused people that this problem is not resolved,” said Atteeyah Hollie, deputy director of the Southern Center. “People remain without lawyers, or they have lawyers in name only, meaning they’ve had little to no contact with their assigned counsel.”

‘Ashamed’

Georgia’s public defender system has long been dogged by chronic underfunding and heavy caseloads. For decades, the program was handled through a poorly run and disparately funded network of county offices. In 2003, the state General Assembly passed a sweeping reform bill that created a statewide system that has generally been seen as an improvement.

The GPDC, which oversees some 400 public defenders statewide, is housed within the state’s executive branch, and the executive director of the agency is appointed by Georgia’s governor. The agency oversees public defenders across Georgia. There are local offices in 44 judicial circuits across the state, although six counties including Cobb, Douglas and Gwinnett decided to maintain their own county defender offices and opted out of the state system.

The state’s public defenders saw significant increases in support under former governor Deal. During his tenure, Deal boosted funding for indigent defense while reforming Georgia’s criminal justice system and establishing alternatives such as the state’s accountability courts, which steer drug offenders to diversion programs.

ExploreFrom 2018: Nathan Deal’s criminal justice reforms leave lasting legacy

The reforms saved taxpayers from shouldering projected increases in prison spending and dropped prison admissions of African-Americans to historic lows.

“For eight years, things got better,” said Andrew Fleischman, a criminal defense attorney and former public defender.

But Kemp’s victory in 2018 marked a departure from Deal’s approach. In his first year in office, as part of a statewide plan to trim budgets, Kemp’s office initially called for $3.5 million in cuts to the public defender system, a nearly 4% cut to the agency.

Alli, a former juvenile public defender in Fulton County, was tapped by Kemp in March 2020 to oversee the public defender council’s office. She delivered on the governor’s mandate. Alli recommended millions in cuts to the council’s budget in 2020 through hiring freezes, mandatory furlough days and the elimination of the agency’s appeals office, which was created following a 2010 class action lawsuit filed on behalf of several people who were without representation.

The proposed cuts were met with resistance and concern from judges, defense attorneys and legislators. Brandon Bullard, who led the GPDC appeal’s office at the time, wrote a letter to then-Georgia Supreme Court Chief Justice Harold Melton, laying out the stakes of such cuts. Many of the reductions were eventually reversed by the legislature.

“I am ashamed to tell the Court that we may not be able to meet our obligations,” wrote Bullard, who resigned a month later.

Credit: AJC

Credit: AJC

As the state emerged from the depths of the pandemic, and federal money from the American Rescue Plan Act made its way to state coffers, Kemp and the legislature put tens of millions into the budgets of prosecutors and judges in an effort to get cases moving faster and push his tough on crime plan.

While the public defender budget benefited as well, with millions earmarked for raises and new offices, GPDC proportionally received much less than the other arms of the justice system — hamstringing the state’s ability to find representation for indigent defendants and put a dent in the case backlog, critics say.

“You have a system that is being overwhelmed with new cases, where you’re not getting the same resources to indigent defense and the public defenders,” Sheffield said.

But even with more funding, Alli seemed committed to implement cuts and restructure the agency.

“I am ashamed to tell the Court that we may not be able to meet our obligations."

- Brandon Bullard, in a letter to then-Georgia Supreme Court Chief Justice Harold Melton

In the Atlanta public defender office, which serves Fulton County, Alli’s pick to lead the office announced layoffs in one of his first acts in August 2021. The cutbacks set the tone for what was to come, and public defenders soon left en masse.

“What we walked into was people packing up and being escorted out by building security,” said Devin Franklin, a 12-year public defender who left the Atlanta office in March.

In an effort to save money, Alli moved the Fulton conflict office — which represents indigent clients in multi-defendant cases — to another building during the pandemic. The move proved disastrous, several current and former employees said. Attorneys were given conflicting directives on whether to work from home or in the office. When they did arrive to the new building, they found the offices bare and without printers, file cabinets, computers or even an internet connection. Attorneys who complained were ignored, former public defenders said.

ExploreFrom 2020: Georgia House leaders say ‘no’ to many of Gov. Kemp’s budget cuts

Nearly all of the 14 public defenders who staffed the Fulton conflict office at the beginning of 2021 had left by the fall, former attorneys said. And with each departure, the lawyers who remained were asked to do more, creating a vicious cycle as public defenders who remained or were hired later were weighted under heavy caseloads.

Linda Day, an 11-year veteran of the GPDC, reached her breaking point when she was out for medical leave last fall. By then, the conflict office had been hollowed out by resignations. She said her boss called her while she was out to ask when she was coming back. She said she was told they did not have enough attorneys to cover all of the courtrooms.

“I was doing everything I could to keep my head above water at that point. I said ‘screw it, I’m done.’,” said Day, who left the office last September.

‘A Horrendous Place”

The current challenges facing the GPDC have ballooned into a crisis that has exposed the state to potentially costly litigation yet again. Lawmakers enacted legislation establishing the statewide system 20 years ago at least partly in fear that litigation would lead a federal judge to take over the dysfunctional system and order sweeping changes.

Many of the unrepresented defendants are sitting in overcrowded jails and living in inhumane conditions as they await their day in court.

Among those who were unrepresented, according to the Aug. 1 GPDC data, is a Fulton County defendant charged with shoplifting who entered into the agency’s system in December 2018; a Crisp County minor charged with cocaine possession who entered into the system in December 2020; and a Decatur County defendant who entered into the system in September 2021. The agency notes that defendants on the August list may have, at one point, had an attorney.

Christina Remlin, an attorney with the Southern Center, said the shortage of public defenders is compounding the backlog in cases built up during the pandemic. She notes that many defendants are living in understaffed jails and “horrendous” conditions.

In Fulton County, hundreds of inmates have been forced to sleep in makeshift beds, often on the floor, due to persistent overcrowding, public officials say. The city of Atlanta has responded by considering a proposal to transfer some Fulton jail inmates to the nearly-empty Atlanta City Detention Center at a cost to Fulton taxpayers.

“I was doing everything I could to keep my head above water. ... I said ‘screw it, I'm done.' "

- Linda Day, an 11-year veteran of the GPDC who recently left

In August, the Southern Center sent a demand letter to Alli urging her and the GPDC to fully address the public defender shortage. The center received no response, it said. Now, the Atlanta-based legal advocacy group is considering suing the agency for its inaction, Remlin said. The letter noted that those being held in jail are being deprived of their Constitutional rights, including the right to a speedy trial. Many defendants are sitting in jail without having been convicted of a crime.

“Every day they’re in jail is a day they’re not sleeping safely at night,” Remlin said. “There are lice, roaches, standing water, broken toilets. It’s a horrendous place.”

Clearing up the backlog has been a thorny challenge for the public defenders office. Many are multi-defendant cases that require the GPDC to contract with private attorneys because of conflict of interest rules.

But fewer private attorneys have been willing to take these cases, leaving many defendants without attorneys for months or even more than a year.

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Alli has ascribed the lack of representation to a large influx of gang charges, disruptions in the labor market that have impacted attorney recruitment and retention, and increases in the number of defendants that have been charged but not indicted.

Many attorneys and judges, though, also place blame on the low pay the state has offered to private attorneys contracted to represent these defendants. Others note that the state was not paying many attorneys on time, leading them to return cases to the GPDC, documents show.

The GPDC just this month raised contract rates, starting at $1,500 for juvenile cases and $7,500 for “serious” felony cases such as armed robbery and murder.

Credit: Photo contributed by the candidate

Credit: Photo contributed by the candidate

Fulton County has stepped into to address the crisis within its own borders by funding a program that pays contract attorneys on an hourly basis, not a flat rate, using federal COVID relief funds.

Fulton County Superior Court Judge Robert McBurney notes that it’s the state’s responsibility to ensure people have defense attorneys, so the county program is a stopgap, not the long-term solution. But in the meantime, the county will do what it can, he said.

“My hope is we’ll get funding for the county as long as it is necessary. It is a state function and it is a state responsibility. It wasn’t appropriate to wait any longer,” McBurney said.

Correction: This story has been updated to accurately reflect the status of legal representation of three defendants as of an Aug. 1 report by the Georgia Public Defender Council. All three were without public defenders as of Aug. 1, according to GPDC data. They include a Fulton County defendant charged with shoplifting who had been in the agency’s system since 2018; a Crisp County minor charged with cocaine possession who had been in the system since December 2020; and a Decatur County defendant who had been in the system since September 2021. An earlier version of this story incorrectly said they had been held in jail since those dates. Also, the story has been updated to accurately reflect that some defendants had been without attorneys for more than a year, not multiple years as an earlier version of the story had reported.