Rep. Efstration Scales Down Dismantling of Indigent Defense
(APN) ATLANTA — State Rep. Chuck Efstration (R-Dacula) attempted to dismantle important protections for indigent defendants, in a recent move that could have impacted a pending lawsuit against the State of Georgia and the Georgia Public Defenders Standards Council (GPDSC).
But the State House Judiciary Non-Civil Committee rejected the proposal.
On Thursday, February 26, 2015, Rep. Efstration appeared before the House Judiciary Non-Civil Committee to discuss a bill he authored, HB 328.
In its original form, the bill constituted a bundle of reforms concerning parole for repeat drug offenders, as well as food stamp fraud and criminal background checks.
But at the committee meeting, Efstration introduced a substitute bill that looked very different. This version proposed sweeping changes to laws established by the Indigent Defense Act of 2003.
With Efstration’s substitute, the bill would have eliminated the following requirements from the law:
- Public defenders must be notified within one business day of an application for their services.
- Indigent defendants must receive a public defender’s services within three business days of being jailed.
- Circuit Public Defenders (CPDs) must establish a juvenile division to specialize in the defense of juveniles.
- The director of the Georgia Public Defender Standards Council has the authority to enforce or require compliance with rules, procedures, and minimum standards.
- CPDs must keep and maintain case records.
The substitute bill was introduced just one day before a hearing in N.P. v. State, a lawsuit filed by the Southern Center for Human Rights (SCHR), which charges a long list of state and local officials with failing to uphold some of these very provisions in the law.
“It was a total shock,” Ateeyah Hollie, a staff attorney at SCHR, told Atlanta Progressive News.
“We don’t have a full understanding of the origins of the substitute, but based on statements from Rep. Efstration, it seemed this language was coming from the Governor or the GPDSC or both… On some level there’s concern that the legislation was targeted at our lawsuit.”
Rep. Efstration did not respond to a request for comment from APN.
Hollie told APN that while any changes to the law would be prospective, or forward-looking, the case might have been impacted because the State or GPDSC could have argued mootness, although at the very least, constitutional claims would have still gone forward..
SCHR’s lawsuit alleges that, in Georgia’s Cordele Judicial Circuit, “Children who cannot afford a lawyer often find there is no public defender available to represent them, but they are processed through the courts nonetheless. Adults who cannot afford a lawyer may languish in jail for months after arrest without seeing a public defender,” according to a complaint filed in January 2014.
Georgia’s Cordele Judicial Circuit includes the following counties: Ben Hill, Crisp, Dooly, and Wilcox.
The complaint documents, in great detail, the Kafka-esque plight of eight plaintiffs.
Take, for example, W.M., a seventeen year-old Black child who was arrested in 2013 for stealing Halloween fangs worth $2.97 from Walmart. At his first hearing in Crisp County Juvenile Court, no public defender was present because they were all handling arraignments in another
According to SCHR, Judge Kristen Pack gave W.M. the option of resolving the case
without an attorney, or rescheduling to a later date, “without advising him of the benefits of counsel, warning him of the dangers and disadvantages of waiving counsel, or informing him of the full panoply of dispositions the court could impose.”
W.M. decided to proceed without a lawyer and admitted to shoplifting the Halloween fangs. He was sentenced to nine months probation, 40 hours of community service, an 8 p.m. daily curfew, and a 50 dollar court fee, plus $2.97 for the fangs.
The other seven plaintiffs were similarly unable to afford an attorney, were not provided a public defender, and suffered harsh penalties and lengthy pretrial jail time as a result.
One thirteen year-old girl, in absence of legal representation, accepted a jail sentence and opted to serve it over Christmas break so she would not have to miss school.
Fulton County Superior Court Judge Todd Markle heard three of SCHR’s claims on Friday, February 27, 2015, the day after Rep. Efstration introduced his substitute bill. The case was filed in Fulton County because it was more convenient for defendants, the State of Georgia and the GPDSC.
Two of the claims dealt with laws that were on Rep. Efstration’s chopping block.
Judge Todd Markle rejected all three.
Over the weekend, SCHR successfully rallied supporters to speak out in favor of keeping indigent defense laws intact.
Georgians for Alternatives to the Death Penalty, Georgia Justice Project, and SCHR sent out action alerts.
On Monday, March 04, 2015 the House Judiciary Non-Civil Committee held another meeting and Rep. Efstration introduced a second substitute to HB 328. This one restored the provisions he had previously attempted to strike down.
But it also proposed removing “Standards” from GPDSC’s name, and changed other language to weaken the council’s authority to enforce standards for public defenders.
This time, the substitute passed.
“What happened was absolutely a victory. The laws established by the Indigent Defense Act are essential to providing representation that comports with the constitution,” Hollie said.
However, not a complete victory. “But the standards piece is crucial. If the GPDSC is not
going to create standards and enforce standards, then we’re only paying lip service to the right to counsel,” she said.
The episode is just the latest attack on Georgia’s public defense system, which was virtually nonexistent before the Indigent Defense Act established the GPDSC.
Since 2005, the council has been tasked with creating and overseeing Circuit Public Defender offices across the state.
Hollie says that in the first few years, the council did a good job of setting standards and holding counties, attorneys, and courts accountable.
But lawmakers have persistently decried the costs of representing indigent defendants and have been hostile to a state entity meant to exert local control.
In 2010, the General Assembly voted to move the GPDSC from the judicial to the executive branch, subjecting the council to the Governor’s control.
According to Hollie and public defenders who have spoken out, today GPDSC hardly exerts oversight of Circuit Public Defenders’ offices.
Last year, a former assistant public defender in the Towaliga Circuit filed a whistleblower lawsuit after he was fired for complaining to GPDSC about short-staffing, huge caseloads, and a neglected office in need of serious repair.
GPDSC did not object to Rep. Efstration’s bill.
On the contrary, it issued a press release stating that HB 328 would, “further strengthen GPDSC’s forward progress,” and that concerns about the bill were “unwarranted.”