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Criminal Law Section sets out to find court budget solutions

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Criminal Law Section sets out to find court budget solutions

Hank Coxe, left, moderated a meeting to identify problems with the justice system caused by recent budget cutbacks. Also pictured clockwise from the top are Bill White, Nancy Daniels, Richard Parker and Donnie Murrell.
HANK COXE of Jacksonville, left, moderated a meeting called by the Criminal Law Section to identify problems with the justice system caused by recent cutbacks, and look for solutions to preserve and restore funding for the third branch of government. Also pictured clockwise from the top are Bill White, Nancy Daniels, Richard Parker and Donnie Murrell.

Senior Editor

When household finances get tight, you don’t make ends meet by paying 90 percent of the mortgage.

And when it comes to the gamut of services funded by state government, the justice system and related agencies are more like the mortgage payment than dinner out and a movie, which can be trimmed from a tight budget.

That was one of the conclusions from an ad hoc group of lawyers, judges, and state officials who met recently in Tallahassee at the invitation of the Bar’s Criminal Law Section. The budget “summit” was called to identify problems with the justice system caused by recent cutbacks, and look for solutions to preserve and restore funding for the third branch of government.

“The entire system appears, from anecdotal evidence, to be spiraling downward for the reason the needs cannot be met,” said former Bar President Hank Coxe, who moderated the meeting. “The whole system is going to suffer if budgetary problems aren’t addressed because the whole system slows down.”

Criminal Law Section Chair Donnie Murrell said the section wants to help solve the crisis in the justice system and feels it can serve as a clearinghouse and collection point for information, both to educate the public and legislators about the needs of the courts, including prosecutors, public defenders, police, and prisons officials, and to suggest solutions.

“Essentially what we’re looking for from the Criminal Law Section is how we can help you with the funding crisis in the criminal justice system,” Murrell told the group. “We thought the lobbying arm of The Florida Bar could be of some service, but before they can become involved, we need to know what you’re asking for.”

Murrell noted that the ABA’s Standing Committee on Legal Aid and Indigent Defense will pay the Spangenberg Group, a consulting company, to help gather pertinent information and assemble a final report. He also said the section was planning monthly meetings of the informal group until the end of the year, when it hopes to have proposals to present to the Bar Board of Governors.

There were several items on which participants seemed to have a consensus:

• Recent budget cuts — which averaged about 10 percent from the 2007-08 budget to the 2008-09 budget — combined with the intent of the state to withhold an additional 4 percent from the current budget, means many agencies won’t have enough money to meet all of their core functions. “We lost all fat six to 10 years ago,” said Mark Zadra, assistant commissioner for the Florida Department of Law Enforcement, expressing a common sentiment around the meeting table. “Then they cut connective tissue. Now they’re lopping off arms and legs.” Judges and representatives from state attorneys and public defenders said they won’t have enough money to try all the cases on their dockets, raising a public safety issue.

• The budget problems are complex and interrelated. For example, just giving one entity more money might not necessarily help. Having more judges and court staff won’t help with rising criminal caseloads if there aren’t more assistant state attorneys and assistant public defenders to staff the courtrooms, participants said. Some effects are even more interrelated. Participants noted a push by counties to have criminal defendants sentenced to a year and a day for relatively minor offenses, instead of a year. The extra day means they are sent to state prison instead of the county jail, which relieves local jail overcrowding. But it is also helping fuel an explosion in the state prison population, which is expected to grow from 98,000 inmates to around 128,000 in the next seven years. As the state scrambles to build more prisons, it has less money for public defenders and state attorneys and for the courts. That in turn slows down the handling of criminal cases, which leads to a higher population in county jails as defendants await their day in court.

• Some budget cuts can cost more money than they save. Coxe noted that reducing the number of prosecutors and public defenders can lead to an expensive increase in county jail populations. Others said the courts may struggle to hear all traffic court cases, which could lose revenues for both the state and courts, and that prisons are losing money for education and rehabilitation programs, which could lead to high recidivism rates.

• The courts and criminal justice system need a dedicated source of funding that is protected in a trust fund so it isn’t used for other governmental operations.

• Criminal justice agencies are at or past the breaking point, and the spillover effects will damage the civil justice system.

Buddy Jacobs, the longtime lobbyist for the Florida Prosecuting Attorneys Association, said state attorneys eliminated about 710 attorney positions — some already vacant because of budget cuts — in the past year. The 4 percent cut this year, which will be accomplished by withholding 1 percent of the budget each fiscal quarter, will lead to the loss of another 233 prosecutors, out of a total of 1,800 to 1,900, he said.

Thirteenth Circuit State Attorney Mark Ober, president of the FPAA, has sent a letter to the state saying with the additional 4 percent reduction, state attorneys will be unable to meet their constitutional mandate, Jacobs said, adding, “Our people are at the point of breaking.”

He blamed the predilection in the Legislature for across-the-board cuts, rather than setting priorities for key governmental functions, such as public safety.

“But until the Legislature and even the governor say, ‘When your household income goes down, you don’t treat the mortgage payment as just another other bill,’ that won’t happen,” Jacobs said.

“The solution to this is they have got to make a distinction. You cannot cut the criminal justice system like you cut the Department of Community Affairs or the Department of Management Services or another government agency. If your criminal justice system doesn’t work, nothing else much matters,” he added. “The people who know the criminal justice system is in trouble are the criminals. They know they are not going to get a speedy trial. . . and they may even get their crimes dismissed. They know it is a good time to do crime.”

Coxe observed that if prosecutors cut back or stop prosecuting misdemeanors, that could have a ripple effect as police departments could decide it is a waste of resources to make misdemeanor arrests when the defendants won’t go to trial.

Charles Francis, chief judge of the Second Circuit and a member of the Trial Court Budget Commission, said courts are likewise burdened. He said the Second Circuit has a total of 105 positions, 52 of which are judges and their assistants. Of the remaining 53 positions, six are funded by federal grants, which means budget cuts must come from the remaining 47 positions.

Last year’s cuts meant six positions were eliminated, although two were restored with county funding, Francis said. But he still lost both of the circuit’s traffic court magistrates, and county judges must pick up that function.

Traffic cases are heard once instead of twice a week, and he predicted eventually county judges will be unable keep up with the load and tickets will be dismissed. The irony, Francis said, is that while traffic cases — compared to criminal, juvenile, family, domestic violence, and other cases — have a low priority, they produce a lot of revenue for courts.

He also said the Second Circuit may lose an $800,000 federal grant for a mental health court because there aren’t enough state attorneys and public defenders to staff it.

Francis also said there is a debate within the court system about how to handle the additional requested 4 percent cut this year. Some favor accommodating the reductions and keeping the courts operating as much as possible. Others lean to rejecting the cuts and keeping the courts running at as high a standard as possible, and when the money runs out simply closing the courts until the start of the 2009-10 fiscal year.

“We can’t make payroll with this 4 percent [cut],” Francis said. “We’ve either got to fire a whole bunch of people right now, or we have to shut it down [later].”

He also said many don’t understand the effect of the prolonged budget crisis on court personnel.

“How do you ask someone who hasn’t had a raise in three years to work harder, maybe take a pay cut, and then face the possibility of being fired at the end of the year?” Francis asked.

Fourth Circuit Public Defender Bill White said public defenders are squeezed between rising caseloads and budget cuts. He noted that the 11th Circuit PD’s office lost 30 lawyers during the Revision 7 transition even before the current budget difficulties, which has forced it to seek to not accept new felony non-capital cases. (See story in the August 1 News. )

The governor’s office has talked about assigning cases that public defenders withdraw from for a lack of resources to the new Criminal Conflict and Civil Regional Counsel offices, White said, but they don’t have the resources to handle that volume. Hiring private counsel would cost three to five times as much as using public defenders, he added.

While their budgets have been frozen or shrinking in recent years, he said caseloads have risen 21 percent, and the Legislature approved 110 new judges with approximately half being assigned to criminal courts, but without any additional state attorney or public defender positions to staff those courts.

“We need to study the workload that comes into this system and we need to develop reasonable, realistic standards that we can fund, and we need to come up with a dedicated funding source,” White said.

Eighth Circuit Public Defender Rick Parker, president of the Florida Public Defender Association, was more succinct: “Our problem is we don’t have enough money and because we don’t have enough money, we can’t hire enough people.”

Participants expressed frustration that about half of the $121 million raised from court fee increases imposed by the Legislature as of July 1 went to noncourt operations, mostly to the Department of Corrections. Keeping all of that money within the courts and related agencies would have largely solved the worst of their budget woes, they said.

There were also warnings that things may soon get worse. Although it hasn’t been officially acknowledged because statistical reports lag by several months, some said they’ve seen a sharp rise in crime and arrests this year. And state economists, meeting the day before the section’s “summit,” announced Florida’s economic slump is worse than they projected earlier this year and the recovery is likely to start later, not sooner, than the end of 2009.

The meeting ended with representatives of the various entities agreeing to provide the Spangenberg Group with a description of how their operations have been crippled by budget cuts. In turn, that information will be used to educate the public, other groups including business organizations that have a stake in a well-functioning court system, and legislators about the seriousness of the problems. Those findings can also be a starting point in a search for improved funding, and perhaps a dedicated funding source that goes to a trust fund earmarked for justice system use, they said.

Murrell said the next meeting of the group is tentatively set for August 21 in Tallahassee.

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