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Wyoming public defenders budget slashed by over $8.4M; may cause return of ‘crisis’

Circuit Court Judge Brian Christensen adjudicates a hearing at Natrona County's Townsend Justice Center, May of 2019 (File Photo; Dan Cepeda, Oil City News)

CASPER, Wyo. — Wyoming Governor Mark Gordon has signed a supplemental budget bill which reduces funding for various state government departments and services by over $430 million for biennium which ends on June 30, 2022.

The budget for the Wyoming Office of the Public Defender was cut by $8,449,288 in the supplemental budget bill. The total budget reduction amounts to a 24% cut to funding for the Office of the Public Defender.

The bill also cuts the number of authorized full-time positions in the public defenders’ budget from 89 to 78 and part-time positions from 16 to 14.

In their supplemental budget request prepared for the legislature’s 2021 General Session, the Office of the Public Defender said they are “an agency that struggles to meet its constitutional and statutory obligations because of burgeoning caseloads and attorney turnover; in essence, the Public Defender is in crisis.”

“The courts appoint poor defendants attorneys,” the Office of the Public Defender said. “The ongoing challenge is to meet the growing numbers of cases in each division with the biennium budget. Criminal defendants, regardless of ability to hire an attorney, have a right to ethically competent and constitutionally effective assistance of counsel. When an attorney’s workload is not ethically manageable, the criminal defendant is denied his right to counsel.”

“As caseloads increase, the number of attorneys, investigators, legal assistants, and access to constitutionally mandated funding should do so as well, in equal measure.”

Te agency’s budget request states that the Office of the Public Defender has struggled to find and retain qualified attorneys.

“During this past fiscal year, attorney turnover resulted in two trial offices, Campbell and Natrona County Trial Divisions, being unable to handle misdemeanors,” the office said.

To help the Office of the Public Defender deal with staffing shortages, the 2021-2022 biennium budget bill initially authorized the office to use up to $3 million of the their appropriated funds for “contract trial attorneys, contract legal support or compensation for up to five (5) full-time employee positions” to help address “caseload work requirements and geographic distribution in the most effective and efficient manner as determined by the public defender.”

The supplemental budget bill that Gordon signed this week reduces that amount by $1,611,601.

“This funding removal will return the Public Defender to the previous shoe string budget of the past and create the cyclical turnover and retention problems that also led to the crisis last year,” the Office of the Public Defender said in their supplemental budget request prior to the legislative session. “This funding would have ensured that the right to counsel is a meaningful check on the powers of government for poor defendants and the loss of this funding takes away the progress this agency and this administration accomplished.”

“Even with the support of the Wyoming Supreme Court, the Public Defender will either be forced to continue to act outside of ethical norms or the clients it cannot serve because of ethical limitations will be denied the right to counsel.”

In 2019 the Campbell County Circuit Court found State Public Defender Diane Lozano and the State Public Defender’s Office in contempt for refusing to assign a public defender to two misdemeanor cases.

Lozano petitioned the Wyoming Supreme Court to review the contempt order and the Supreme Court ultimately reversed the circuit court’s contempt order.

“We have determined that the circuit court’s order mandating that the public defender accept the two misdemeanor appointments was not lawful because it disregarded the public defender’s determination that no public defender was available,” Wyoming Supreme Court Justice Michael K. Davis wrote in the opinion of the court. “Because there was no lawful order, the circuit court could not properly find Ms. Lozano in contempt.”

The Office of the Public Defender said in their supplemental budget request that they handle about 90% of all criminal cases in the Wyoming court system.

“The Public Defender handles nearly 90% of all criminal cases in the Wyoming court system and has ‘functioned’ on a minimal budget, being just one capital case or one big drug conspiracy case or an increase in caseloads from catastrophe,” the office wrote. “As we all learned in in the spring of 2019, when the Public Defender is not adequately funded or staffed, a constitutional crisis ensues, as well as creating an ethical crisis for the State Public Defender and her assistants.”

“Any reduction of attorneys, whether contract or employee, increases the likelihood that the State Public Defender will have to refuse cases and without the ability to compensate court appointed poor people could be without counsel. It must be noted that any loss of general fund money also results in the loss of special revenue from the counties, as the counties
are billed at 15% of the general fund appropriations. Any case affected by lack of adequate counsel or lack of counsel completely would likely be returned to the courts after appeals, costing the state more money than it likely saves here.”

The Office of the Public Defender noted in their supplemental budget requests that “capital cases add to the challenges of the Public Defender.”

While the Wyoming Legislature considered repealing the death penalty this seesion, the Senate killed that effort on an 11-19 vote on March 18.

Further details regarding the budget for the Office of the Public Defender can be found starting on page 11 of the supplemental budget bill.