Prosecutors, public defenders face case backlogs and smaller budgets
Faced with a growing backlog of cases because of, among other things, an inability to have jury trials, Florida’s state attorneys and public defenders are also having their budgets restricted.
Gov. Ron DeSantis, responding to lower state revenues caused by the COVID-19 pandemic, has instituted a 1.5% per quarter — or a 6% annual — budget holdback for executive branch agencies, which includes the prosecutors’ and defenders’ offices.
The budget holdbacks do not affect the courts, although other agencies including the Offices of Criminal Conflict and Civil Regional Counsel and the Capital Collateral Regional Counsels fall under the stricture.
Although technically not a budget cut because the funds are being reserved, it is nonetheless causing immediate problems.
“The holdbacks are going to be devastating to all state attorneys,” said 18th Circuit State Attorney Phil Archer, president of the Florida Prosecuting Attorneys Association. “Most state attorney offices, 96% to 97% of our budgets are salaries. Counties pay for our rent, our electricity, our computers. Our state budgets are mainly salaries. When you cut 6%, you’re cutting people.”
“I’m pretty confident all state attorneys have frozen new hires. Hopefully, it won’t lead to we have to let people go.”
Tenth Circuit Public Defender Rex Dimmig said, “We are hopeful although not terribly optimistic the economy will pick up sufficiently during the year so that we will be able to restore the funding.”
If not, “it’s challenging. The vast majority of our budget consists of salary and benefits and we’re talking people when you have a reduction in what you’re authorized to spend. You have to address it by reducing salaries,” he said.
So far, public defenders have enacted a hiring freeze to conserve money.
“That’s only going to work for about one quarter,” Dimmig said. “If it extends into another quarter, we’re going to have to look at more drastic means. In most cases, that means modifying salaries for people.”
As the pandemic slashed its way through the state budget, it also handicapped the ability of the justice system to resolve criminal cases, since jury trials are on hold and other proceedings are affected.
“Right now, on average, public defender caseloads are up in the vicinity of 30% because of the loss of the capability to have jury trials and to have people not in custody appear for court hearings,” Dimmig said.
According to the Office of the State Courts Administrator, the number of pending felony cases is about a fifth higher than it was at the same time last year.
Eleventh Circuit Public Defender Carlos Martinez said his office’s number of open cases has gone from 13,000 around the first of March to 16,500 in early August.
Lack of jury trials is one factor, but for “the hearings you can have, particularly for misdemeanor cases, there are many individuals without access to the internet, there are people who have moved,” he said.
Dimmig agreed: “We only represent indigent people. While a lot of folks assume everyone has technology to do a remote hearing, that is not true of all of our clients. They may not have a computer. They may not have a cell phone. If they do, they may not have a plan that allows them to appear by video.”
And without that ability, they can’t be remotely sworn it, he said.
Archer didn’t have numbers on pending cases for state attorneys, but he estimated they’re about the same as for public defenders.
Exact impact on each office can depend on local factors. One is the collection of charges from convicted defendants to defray the costs of prosecution and defense. Archer said those collections vary greatly, with some prosecutors seeing little loss of revenues and others seeing a significant shortfall, which adds to their budget difficulties.
Martinez said his collections from that source have fallen sharply and between that and the budget holdbacks, his $32 million budget could shrink by $3 million.
“It’s a significant amount of money,” he said.
Coping with less money and more open cases also has local variations.
Archer said he’s not replaced five attorneys who have left, including pulling positions from his white collar, elder abuse, sex crimes, and domestic violence sections.
“When you have to start making these cuts, a lot of times you have to pull back from some of the specialized units,” he said. “At the end of the day, our core is felony prosecutions.”
Martinez has preserved attorney positions but at the expense of non-attorney staff, but that has its own problems. He sent out letters to all his office’s clients at the start of the court shutdown, figuring many didn’t have online contacts.
“It’s pretty surprising how many of our clients are unable to contact us,” Martinez said. After the letter, “we receive a thousand calls a day in my office and that’s becoming more difficult to handle….
“Because of the budget holdbacks, I have fewer staff now than I did at the beginning of COVID.”
Dimmig said the 10th Circuit shows how conditions can change not only from circuit to circuit, but from county to county.
Polk County, he said, had an empty building across from the courthouse and he was able to set up eight remote locations clients can use to appear virtually in court. Hardee County, he said, the smallest county in the circuit, suffers from a lack of resources for remote access. Highlands County had a water leak just before the pandemic and during repairs asbestos was discovered requiring closing the courthouse, adding an additional layer of difficulty when pandemic restrictions were imposed, he said.
The courts themselves have struggled with the restrictions on in-person proceedings but have not had the budget holdbacks, since the third branch’s finances were not affected by DeSantis’ order. Nonetheless, the courts have restricted spending.
“There is a hiring freeze in place throughout the branch. There remains a travel prohibition in place — this is primarily a health-related policy, but also serves as a cost-containment step,” said OSCA spokesperson Paul Flemming. “Judicial leadership and OSCA staff have been gathering and analyzing information to get a picture of the current situation and make informed estimates about where things may go.”
Neal Dupree, capital collateral representative for the southern region, said the budget holdbacks have not had a great impact yet because they are offset by the courts’ reduced capacity for evidentiary hearings and other proceedings. That could change.
“If revenues continue to be at the level they’re at, I think the positions in quarters three and four [January through June] could be worse,” he said.
One COVID-related problem is filling three vacancies in his agency. With South Florida being one of the nation’s pandemic hotspots, Dupree said attorneys are reluctant to move to the area.
Candice Brower, Criminal Conflict and Civil Regional Counsel for the First District Court of Appeal area, said the budget holdbacks, like for public defenders, are affecting the ability to represent indigent criminal clients as well as the indigent parents faced with losing their parental rights.
The CCCRC for the Third DCA district has begun criminal mediations to help resolve cases, she said.
“On the civil side, cases are proceeding whether by Zoom, in person, or a combination of both,” Brower said. “For the civil attorneys, the work has not reduced and has become complicated with the due process issues that arise from virtual trials, affecting the movement of cases. Also, the inability for parents to visit in person with their children slows down the progress of dependency cases.”
When courts get back to normal, public defenders and prosecutors say they’ll be faced with attacking the backlog of cases with a reduced staff, while addressing any uncertainties about how the courts may alter their operations in a post-pandemic world.
“It’s a little more difficult on the criminal side because of due process, confrontation of witnesses, and constitutional rights,” said Archer, the prosecutor. “But there are a lot of steps in the criminal justice system that can be done remotely and should be done remotely.
“The biggest unknown for us right now is jurors. Are people going to come back in and serve willingly?”
That is a key question, Martinez said.
“How many concurrent trials can take place in the courthouse while you’re still social distancing and everybody is wearing masks?” he asked. “The reality is what we’re hearing is a significant percentage of the population will not avail themselves of the vaccine if a vaccine is developed. Only about 40% of the people being surveyed are saying they will use the vaccine when it is developed. That is quite concerning, because what that means is we are probably a long way away from resuming how things used to be before the pandemic.”
“Our primary goal is to see the rights of our clients, that they have not been able to fully exercise with the courts largely closed, are restored,” Dimmig said. “That’s going to be difficult…. Due process has suffered, clients’ rights have been basically put on hold. When we get through this time, we need a lot of effort put into planning so if something like this happens again, clients’ rights will be protected.”