Brian Frosh

The Office of the Public Defender (OPD) is often overlooked as a state agency, but it represents an enormous number of people—more than 200,000 last year alone. The office fulfills a constitutional mandate and is essential to our judicial system. Among other activities, the OPD gets involved in nearly every death penalty case in the state and plays a vital role in the juvenile justice system.

Advising the public defender is a three-member board that has authority to fire the incumbent. On a two to one vote, the board recently dismissed Nancy Forster, the long- time public defender. The immediate cause was Ms. Foster’s refusal to implement policy changes the board had insisted upon.

Basically, the board wanted the OPD to disband some specialized units and to restrict the role of non-attorneys in the office’s operation. The firing highlighted fundamental differences about policy and governance that I felt needed investigation. As a result, I convened an oversight hearing of the Senate Judicial Proceedings Committee. The hearings revealed the following:

First, the OPD uses social workers to access drug treatment programs and other services that might present alternatives to incarceration. The practice saves the state money, frees up attorneys’ time, and keeps some people out of jail permanently. The board sought to terminate that practice. A panel of national experts, as well as the acting and former public defenders, argued persuasively that doing so would be a mistake.

Second, the board wanted to disband the OPD units that specialize in death penalty and post-adjudication juvenile cases. Again, outside witnesses were unified in opposition. The four-person juvenile unit represents all of the juveniles in custody in our state in constitutionally required post-conviction services, and the unit appears to be cost-effective. The portfolio of the capital defense unit has been expanded to include aggravated felonies. Defense of capital crimes is a highly specialized, complex undertaking; I’m convinced it would be inefficient, and probably ineffective, to expect the average assistant public defender to represent individuals charged with a crime for which the penalty is death.

Beyond these specific issues, a basic organizational question emerged at the hearing: who gets to call the shots at OPD, the board or the public defender? Current law tilts in favor of the public defender and assigns the board an advisory role. On balance, I think that’s the way it should be: the public defender has skills and experience to do the job and shouldn’t be fired without cause, but should, perhaps, serve a limited term in the position.

I came away convinced that the governing board’s structure needs basic changes. It should have more than three members. And it should be diverse geographically and include individuals with more varied expertise than is now possible. I plan to introduce legislation in the 2010 session that will expand the board’s membership and more clearly define its relationship to the public defender, changes that will allow this important office to perform its duties efficiently and effectively.