PD special master: To solve the caseload crisis, redo the criminal code

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A major overhaul of Missouri’s criminal code is the “only true solution” to the caseload problems dogging Missouri’s public defender.

That’s final conclusion of the special master tasked with examining the ability of the Missouri State Public Defender System to refuse cases in overworked offices.

In an 11-page report that the Missouri Supreme Court released Wednesday night, retired judge J. Miles Sweeney highlighted the uniqueness of MSPD’s caseload problems.

“No one else in the criminal justice system faces such a dilemma,” he wrote.

While acknowledging that the analysis of the problem involves more opinion than fact, Sweeney parsed the wealth of testimony and written evidence submitted to him.

When the system started refusing cases in overloaded offices last year, starting in Springfield, system leaders properly followed their caseload protocols, he wrote.

Yet Sweeney also identified weaknesses in the same caseload protocols, including the absence of any data about the use of support staff.

Allowing the public defenders to set monthly caseload limits “goes a long way toward solving the public defender problem, but makes the problem worse for everyone else,” he wrote.

Sweeney then listed alternatives to statewide public defense, but concluded that all alternatives come up short. A volunteer attorney program isn’t workable in the long run. Contract attorneys would likely cost more than public defenders. Attorney appointments would cause financial strain on private attorneys in small circuits.

Sweeney raised the possibility of state lawmakers’ somehow managing to pass another bill instituting the same caseload protocols that MSPD enacted internally. That sort of implementation “might be better received by the other stakeholders … rather than from the PD itself which can be viewed as ‘self-serving.'”

But the real answer, he wrote, would be a Legislature-created bipartisan committee to throw out Missouri’s criminal code and begin again.

“The Legislature has added, virtually every year, new and more extensive crimes and penalties,” Sweeney wrote. “It has become a Christmas tree of oddball crimes and inconsistent punishments.

“Major revisions to the code would be politically impossible since politicians must be ‘tough on crime.” Therefore, a bipartisan committee — much like the one that created the basis of the current criminal code in the 1970s — must take up the task, Sweeney wrote.

Check back with Missouri Lawyers Media for analysis and reactions to the special master’s report.