Politics harming justice in Georgia

Partisan politics has no place in the debate over how Georgia should fulfill its constitutional obligation to provide defense counsel for those accused of crimes. So, last week’s attack by the Legislative Oversight Committee of the Georgia Public Defenders Standards Council (GPDSC) in their annual report is deeply disturbing.

The committee, chaired by state Sen. Preston Smith (R-Rome), offers few substantive solutions to the indigent defense crisis, and instead criticizes everyone from public interest attorneys to allegedly activist judges, the State Bar of Georgia, the Georgia Supreme Court and even the “left-leaning” American Bar Association.

With its divisive rhetoric, the report perpetuates the falsehood that indigent defense reform is a partisan policy issue. I thought that we moved past framing this discussion as an ideological debate between conservatives and progressives when we worked together to institute systemic reforms beginning in 2003. While the report implies that bipartisan, multidisciplinary collaboration is not possible surrounding indigent defense, I have witnessed it and know that it is possible.

Last year, the Constitution Project’s National Right to Counsel Committee released “Justice Denied: America’s Continuing Neglect of Our Constitutional Right to Counsel.”

I am a member of the committee, along with other former federal and state judges, current and former prosecutors, attorneys general, police officials, academics, victim advocates and even someone exonerated by DNA evidence after being sentenced to 130 years in prison.

Some committee members are Republicans; others are Democrats. Yet despite our diverse backgrounds and politics, we all agreed on urgently needed recommendations for indigent defense reform. Remarkably, almost every one of Smith’s proposed reforms since 2005 runs counter to the recommendations of the bipartisan National Right to Counsel Committee.

Additionally, when I became chief justice of the Georgia Supreme Court in 2001, I made reforming Georgia’s broken indigent defense system my priority. I worked with both Republican and Democratic legislators, and by 2005, we had succeeded in creating public defender offices in all but four of the 49 judicial circuits and in establishing an independent GPDSC.

Unfortunately, since then, indigent defense reform has become an increasingly politicized issue in our state, and the vitriolic GPDSC report released last week is the culmination of such partisanship. Since 2005, the Legislature has transferred control of GPDSC to the governor, away from the politically insulated judiciary, and has repeatedly introduced bills to roll back our nationally respected reforms.

Now, Smith’s sole solution is to place the state’s burden back on each of our 159 counties, another unfunded mandate being legislatively transferred from the state to local governments.  He blames the state budget crisis, but funding for indigent defense should be available now if court fees specifically levied for indigent defense funding had actually been transferred to GPDSC as originally intended, rather than to pet projects of state legislators.

Rather than continue this partisan bickering, we should instead focus on those principles upon which we would all likely agree. Public safety requires law enforcement to prosecute individuals charged with crimes. When the state does not adequately fund indigent defense, the wheels of the justice system threaten to come to a screeching halt, potentially endangering public safety.

In addition to its partisanship, the report harshly criticizes others with a stake in the workings of our justice system. Specifically, it attacks Fulton County Judge Jerry Baxter of the Superior Court, who last week ruled in favor of plaintiffs challenging the constitutionality of the state’s indigent defense practices, charging him with “overtly substitut[ing] [his] policy judgment ... for that of the elected legislature.”

This attack on Baxter is not only counterproductive, but inaccurate. Judges take an oath to uphold the constitutions and laws of the United States and Georgia, and to in good faith apply the facts to the law. If Baxter determined that plaintiffs’ constitutional rights were being violated, he had not only the authority but the obligation to grant relief to the plaintiffs. While Smith may disagree with the ruling, it is simply out of bounds to characterize Baxter as acting outside his authority.

We must reject partisan and groundless attacks. We must recognize that we have no choice but to move forward — not as Republicans or Democrats, not as prosecutors or defense counsel, not as lawyers or nonlawyers, and not as judges or legislators, but as citizens of Georgia.

We must find real solutions to our state’s indigent defense crisis, because those rights protecting citizens from big government apply equally to the poor as they do to the rich.

Norman S. Fletcher was a justice on the Georgia Supreme Court from 1989 through 2005. From 2001 to 2005, he served as chief justice.