An adequate defense

A new report on the Clark County public defender's office backs up the findings of previous reviews this decade: The office's attorneys have some of the highest felony caseloads in the country.

The report, compiled by the Spangenberg Group and George Mason University's Center for Justice, Law and Society, also says those caseloads prevent the county's public defenders from providing adequate representation to all of their indigent clients. This finding supports the years-old assertions of valley civil libertarians and legal aid advocates.

And the report's recommendations echo the longtime wishes of many in elected government and the justice system: significantly expanding the public defender's office (as well as Washoe County's unit), perhaps even doubling the staff.

All of this sets up yet another meeting between an irresistible force and an immovable object: the putrid economic conditions that have the state's two largest counties fighting back a tide of red ink, and the Constitution's guarantee that anyone charged with a crime can have the assistance of counsel.

There is nowhere near enough money -- not in Clark County, not in Washoe County, not in the state treasury -- to bring aboard more than 100 new government attorneys. And there is no getting around the fact that providing due process and protecting defendants' constitutional rights are legitimate functions of government.

The compromise will come down to a consensus on what defines "adequate" counsel, and what amount of tax dollars are required to meet that threshold.

"The report says people aren't being adequately represented in Clark and Washoe counties," said Federal Public Defender Franny Forsman, a member of the Supreme Court's indigent defense commission. "In other words, there are people going to jail today because there are insufficient resources to adequately defend them."

That's an exaggeration. There is no evidence that county lockups and state prisons are full of innocents who would be free had they not been saddled with incompetent counsel. The District Courts and the Supreme Court are not ordering the release of dozens of inmates each week on findings of inadequate representation. This fact, on its own, suggests that indigent defendants are receiving adequate counsel. Not excellent counsel. Adequate counsel.

But it could be better, and the system has had its share of problems. It was a 2007 Review-Journal investigation that led to the creation of the indigent defense commission. That panel has since created rigorous performance standards. And in response to the commission's work and the findings of the Spangenberg report, the Supreme Court might very well impose caseload caps on public defenders, a drastic step that eventually might allow the Clark and Washoe county offices to begin refusing cases.

Now is not the time for inflexible solutions. Caseload caps are a practical and economic impossibility. And taxpayers cannot afford a hiring spree at two of the highest-paying public defender offices in the country.

The counties need more contracting with private attorneys and proper oversight of those contracts. Those contracts should pay enough to attract competent attorneys, not necessarily elite lawyers. And the state can't start confusing its adjectives. "Adequate" and "five-star" are not interchangeable. A Hyundai will get you from here to there the same as a Mercedes, albeit with a little less panache. In these tough times, there's nothing wrong with that.