The Mississippi Supreme Court’s deadline for the state’s 23 circuit courts to submit plans on how each provides lawyers to criminal defendants who can’t afford them is fast approaching.
As of Tuesday, judges from 13 districts had provided their plans before this week’s deadline.
Those plans are posted online on the state Supreme Court’s website and the districts’ own circuit court websites, if one exists. Chief Justice Michael Randolph issued a letter in April requesting all circuit judges to submit their public defense plans before this Friday.
Civil rights lawyers have lauded the high court’s move to increase accountability on how Mississippi administers public defense, considering the current lack of oversight to determine whether the Sixth Amendment is being followed throughout the Magnolia State.
“There now will be transparency regarding how our courts comply with the requirements of Gideon and satisfy the constitutional requirements for providing counsel to poor defendants,” said Cliff Johnson, the director of the MacArthur Justice Center’s Mississippi chapter, a public interest law firm focused on reforming the criminal legal system.
Gideon refers to the Supreme Court’s 1963 landmark case in which it found that states should be responsible for providing criminal defendants with their own lawyers if they can’t afford their own legal counsel.
The civil rights lawyer added that it’s critically important considering “well over 80% of criminal defendants in Mississippi require the services of a public defender” due to the state’s high rate of poverty.
The state Supreme Court’s request could even be the first step toward reforming Mississippi’s fragmented, decentralized public defense system. The current approach has resulted in defendants falling through the cracks of the legal system, which led to them sitting in jail at length without legal representation.
Randolph’s request is a follow- up on an order the high court issued years ago to little avail.
In 2017, the state Supreme Court adopted its Mississippi Rules of Criminal Procedure. It created a uniform set of rules that standardized how all courts throughout the state undergo criminal proceedings, beginning with arrest and all the way to post-trial motions.
As part of that rule change, the high court ordered circuit judges to submit their plans on how they provide criminal defense for indigent, or poor, defendants charged with felony crimes. Those plans would be subject to a public comment period before the state Supreme Court would approve them or not. If approved, those indigent defense plans would officially be part of that circuit court’s publicized local rules.
Judges from the state’s 23 circuit courts ignored that order, at least initially, according to reporting by two nonprofit investigative news organizations, The Marshall Project and ProPublica, and the Tupelo-based Northeast Mississippi Daily Journal.
It wasn’t until 2023 when two circuit courts finally complied. The 22nd, in southwest Mississippi, submitted its plans, which were approved by the high court in August of that year, and the First, in the northeast part of the state, had its plans approved that December.
The Ninth District, which includes the Delta counties of Issaquena and Sharkey, as well as Warren, submitted its own indigent defense plans in October 2023, but the high court never approved them.
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Although the Sixth Amendment guarantees criminal defendants the right to legal counsel, it doesn’t specify how that should be provided.
The result is a “50-state experiment” in which each state “has taken upon itself how it wants to fund, administer and deliver the system for public defense,” said Aditi Goel, executive director of the Sixth Amendment Center, a Boston-based nonprofit that advocates for the right to counsel.
Twenty-seven states fully fund indigent defense in adult criminal trials throughout the entirety of their states, while 31 states have complete oversight over the handling of indigent defense services, according to the Sixth Amendment Center.
In Mississippi, however, public defense for indigent defendants is both administered and funded by county governments. Counties choose how they want to structure their public defense systems, which can include the creation of a public defender office — there are only a handful in the state — or to contract with attorneys in private practice who are assigned by the court to represent indigent clients.
It’s a stark contrast to how Mississippi handles felony prosecutions, which has a more uniform approach. The state’s district attorneys — one for each of the 23 circuit court districts — prosecutes felonies. State statutes guarantee district attorneys, as well as their assistant attorneys and investigators, a salary in addition to office space.
On the other hand, delegating the responsibility of public defense to counties in Mississippi “creates justice by geography,” Goel said.
The main source of revenue for local governments is property taxes, which can be problematic for counties in which poverty and economic depreciation limit that stream of income.
“You're not going to have the money then as a local government to fund a public defense system that is constitutionally required and necessary,” Goel said.
The Sixth Amendment Center found that in 2023 Mississippi spent the lowest per capita for indigent defense in the nation at $7.20, as compared to the national average at $19.82.
A 2018 report from the Sixth Amendment Center assessing Mississippi’s indigent defense services also found other problems.
They included no state oversight to ensure local governments are complying with the Sixth Amendment, various lack of standards to ensure appointed attorneys have the qualifications to handle the cases they are assigned or to ensure attorneys have access to needed resources, such as the time to interview witnesses. The report also found issues with payment structures that could incentivize attorneys to rush their clients’ cases by having them plead guilty.
The report also noted instances of indigent defendants lacking counsel as they sit in jail following their arrest and as they await an indictment, a period that’s come to be known as the “dead zone.”
Because Mississippi doesn’t have a time limit on when an indictment is presented, people can end up sitting in jail for months or years.
In July 2023, the Mississippi Supreme Court amended Rule 7.2 of its Mississippi Rules of Criminal Procedure to prevent an attorney from withdrawing representation of a client until a new attorney has been appointed, thereby closing the “dead zone” to ensure a client always has legal representation.
The fix on paper hasn’t necessarily led to actual fixes in the state’s criminal legal system, according to reporting by The Marshall Project, the Northeast Mississippi Daily Journal and ProPublica. The news outlets found courts at the time were not ready to comply or were unaware of the amended rule. A state representative also said, anecdotally, that the rule was not followed in “wide swaths” throughout the state.
Another issue, according to Johnson, is that Mississippi lacks a “culture of zealous pre-indictment advocacy,” which is “one of the most serious deficiencies in our criminal justice system.”
Typically, when someone is arrested and charged with a felony in Mississippi, that person will be appointed a lawyer following an initial appearance before a judge, which takes place 48 hours within an arrest. Usually, a city or justice court judge presides over initial appearances, rather than a circuit court judge.
In some parts of the state, defendants are appointed new attorneys after they’ve been indicted, and those attorneys will represent them in trial.
The attorney assigned prior to an indictment, who may be accustomed to practicing in lower courts, such as handling of misdemeanors, can result in the attorney not “zealously advocating for these people whose cases they won't be taking to trial,” Johnson said.
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The Fourth Circuit Court of Mississippi includes the counties of Leflore, Sunflower and Washington in the Delta. Public defense is administered differently in each county.
In Greenville, the Washington County Public Defender’s Office is assigned to represent indigent clients. It is the oldest public defender’s office in the state, established by a state House bill in 1972. The office features one full-time public defender, a part-time attorney, a full-time investigator and a full-time administrator. There are also a few attorneys on contract with Washington County who are appointed to represent indigent defendants when a conflict prevents the public defender from doing so. These lawyers are known as conflict attorneys.
In Sunflower County, two attorneys, who are not employees of the county, represent indigent defendants on a contract basis. Sunflower also has its own panel of conflict attorneys, about four, who are appointed when needed.
Leflore County uses neither a public defender’s office nor contract attorneys but instead maintains a list of about 10 attorneys who are appointed to represent indigent defendants on an ad hoc basis.
In all three counties, it is intended that the attorney assigned after a defendant’s initial appearance stays on until the case is closed.
Judge Ashley Hines, who has been the senior circuit judge for the Fourth District for more than a decade, said the varying approaches for public defense in each county haven’t led to different outcomes for clients.
“I don’t think the nature of how they got to be appointed to that case really makes much difference in my view on what kind of job they do,” Hines said. “No lawyer wants to lose a case, so they're motivated to do a pretty good job.”
Hines was one of 13 circuit court judges who responded to Randolph’s April request. Rather than just simply detail the Fourth’s indigent defense plans, Hines submitted to the court plans for consideration of approval and, if approved, to be published as part of the Fourth’s local rules.This move complies with the state Supreme Court’s original 2017 order.
The Fourth’s submitted plans, which had not been approved by the state Supreme Court as of Tuesday, mimic what have been established in the First and 22nd courts’ approved local rules for public defense. It states that lawyers for indigent defendants should be appointed “as soon as practicable after arrest” and that appointed attorneys remain on “until withdrawal is granted and new counsel is substituted” as a means to prevent defendants from falling into the dead zone.
The Fourth District’s practice of public defense has been the same since Hines took the bench with the court in 1996.
When asked his thoughts about a statewide public defender’s office, the judge offered a favorable answer.
“Representation of indigents is a great burden on the counties, and the counties are not prosecuting these people.The state is prosecuting. So to me, the state should set up a statewide public defender system,” he said.
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André de Gruy, who heads Mississippi’s own version of a public defender’s office, said the Fourth District’s public defense system is “probably better than the average” in the state.
Although de Gruy holds the title of state public defender, his work applies only to representing indigent clients on death row and handling felony appeals.
De Gruy, who is an advocate of bolstering Mississippi’s administration of public defense at the local level, said Randolph’s request will allow him to map out how each jurisdiction complies, or doesn’t, with the Sixth Amendment.
“It’s a step forward. Whether it’s a big step or not remains to be seen,” de Gruy said.
Goel, of the Sixth Amendment Center, said the state Supreme Court’s request is “just words on paper if it does not also come with enforcement authority and funding to implement the oversight.”
Johnson, of the MacArthur Center, remains more optimistic.
“I have known Chief Justice Randolph as a lawyer and a jurist for more than 30 years, and the one thing everyone knows is that he means what he says,” Johnson said. “Should there be districts that fail to do what Chief Justice Randolph has asked, I have no doubt, knowing Chief Justice Randolph as I do, that he will follow up and make certain that we have statewide compliance with his directive.”
- Gerard Edic is a corps member with Report for America, a national service program that places journalists into local newsrooms. Contact him at 662-581-7237 or gedic@gwcommonwealth.com. You can support his work with a tax-deductible donation at bit.ly/3G7iXiy.
