Public defenders seek $120M as Proposition 36 strains resources

Public defenders in California are seeking $120 million over three years for indigent defense. According to letters to lawmakers, this money is needed in part to deal with a flood of new cases under Proposition 36.

"On behalf of the Humboldt County Board of Supervisors, I am writing to join with the California Public Defender's Association and Smart Justice California to respectfully request $120 million over 3 years to support indigent defense providers across California in implementing holistic defense services," wrote Humboldt County Administrative Officer Elishia Hayes in an April 30 letter to legislative leaders and budget committee chairs.

Hayes added that the money is needed to "reduce recidivism" and "effectuate the voters' intent in Proposition 36 to have people receive treatment, housing, and reduce recidivism."

Kate Chatfield, the executive director of the California Public Defenders Association, shared the letter and said other local leaders are circulating similar ones.

Defenders are alarmed that Proposition 36 is swamping their budgets and workforce. There are also signs the tough-on-crime measure is stressing prosecutors' resources as well, but defenders have pointed out district attorneys have discretion about how they use the law.

"What the law does is return California back to a day when drug possession can lead to a prison sentence," said Chatfield on Wednesday while participating in a panel discussion.

"Protecting California's Public Defense System" was sponsored by the Wren Collective, a nationwide non-profit organization that works to fight mass incarceration. It is working with a coalition of groups to push a pending bill that would provide statewide funding to public defenders in California, which is one of just a few states that do not provide such support.

"In our judgment this is gross overreach," said California District Attorneys Association CEO Greg Totten when reached on Thursday.

Totten's organizations wrote and backed Proposition 36. The initiative rolled back some recent changes to sentencing laws, making it easier to charge some thefts and drug crimes as felonies. He said his association is in "ongoing" talks with lawmakers to secure up to $250 million to implement Proposition 36, including significant amounts for drug treatment and probation officers--but not for public defenders or prosecutors.

"It's rare for a law enforcement association to request funding for other entities rather than ourselves, but that's precisely what we're doing in this situation," Totten said.

But defenders counter that they have long had less funding than prosecutors--and that many officers were in crisis even before Proposition 36 came along.

"The funding has been so low for so long that public defenders can't keep up in terms of recruiting and training people," said Loyola Law School Professor Sean Kennedy during the Wednesday panel discussion. "And then other people are leaving the appellate panels and they're not being replaced."

Additional state funding for the tough on crime measures seems unlikely. Democrats in Sacramento have shown little appetite to provide more money for Proposition 36. During committee debates, many have pointed out to their Republican colleagues that the initiative's sponsors passed it without a funding mechanism--and that lawmakers are not required to provide one.

Meanwhile, grim budget news continues to trickle out ahead of Gov. Gavin Newsom's release next week of his revised budget plan. Several outlets have reported that the budget forecasts a $10 billion deficit, not counting potential additional cuts to federal funding.

But Republicans have found crime to be successful wedge issue, a trend that has carried over from last year's campaign into the new legislative session. For instance, a proposal to increase penalties on people who solicit sex from 16- and 17-year-olds has turned some Democrats against each other.

Many Democrats openly supported Proposition 36 as well. One of the most outspoken was San Jose Mayor Matt Mahan. During the panel, Raj Jayadev said that the public defender and district attorney in Santa Clara County, where San Jose if the largest city, recently told the board of supervisors that Proposition 36 cases were stretching their resources. Jayadev is the founder of Silicon Valley De-Bug, an organization that fights mass incarceration policies.

Meanwhile, he said, there is little evidence that many people are receiving drug treatment under the law. Totten said that Proposition 36 would make public defenders' lives easier by routing people into treatment and reducing their workloads.

But Assemblymember Nick Schultz, D-Burbank, said public defenders need help in the near term. He has written AB 690, a bill that would ban flat-fee indigent criminal defense, a system often used in counties that do not have fulltime defender's offices. Flat-fee systems incentivize attorneys to spend little time on each case, he said.

"This bill is steeped in the understanding that our criminal justice system works best when it's a fair fight," Schultz said. "The reality is that the resources of prosecutors' offices across the state of California are substantially outweighing what we're seeing in terms of the critical defense services that everyone's entitled to and that counties are seeking to render."

AB 690 currently sits in the Assembly Appropriations Committee's suspense file, meaning that it has been held up because of fiscal concerns. A committee analysis flagged it for costing "unknown but potentially significant amount to counties affected by the bill's contracting requirements."

Several panelists also said they distrusted the motives of the coalition behind Proposition 36.

"Proposition 36 is going to send more black and brown people to jail and prison," said Alameda County Public Defender Brendon Woods. "It will send more unhoused people to jail and prison. It will send more people suffering from mental health challenges to jail and prison."

Woods added, "It was never, ever, ever about treatment. Anyone who tells you it was is lying."