Robert Gehrke: Utah is not living up to the Constitution and failing poor people accused of crimes

Robert Gehrke.

There’s a phrase engraved on the front of the U.S. Supreme Court — “Equal justice under law.” That is the distilled essence of our justice system, a declaration — aspirational to be sure — that laws will be applied equitably, regardless of race, gender or economic background.

The same is supposed to be true of geography. Someone accused of a crime in one jurisdiction should be treated the same as someone charged under the same law in another.

But in Utah, we have two justice systems or, really, to be more accurate, 29 individual justice systems. That’s because every county runs its own public defender program to provide a legal defense to those who can’t afford it.

And the disparity in the funding provided to the accused — a right under the Sixth Amendment to the Constitution — is jaw-dropping.

On one end, you have Juab County, which this year is spending $40.48 on indigent defense per county resident — a metric designed to account for the population differences. Juab’s number is bolstered by a grant the county received from the state Indigent Defense Commission to overhaul its defenders office, allowing it to contract with public defenders in Utah County.

Uintah County (also a grant recipient) is spending $31.95. Salt Lake County, which is widely regarded as the statewide model for a public defenders office, spends $18.87 per resident. The state average is $12.45.

Then you have Cache County, which spends $4.18, Box Elder County, which spends $3.90, and Morgan County, with a paltry $1.31 per resident.

To be clear, spending more money doesn’t necessarily translate to a higher quality defense. But ask yourself: If you could choose where you’d want to be charged with a crime, assuming you couldn’t afford a defense, would you choose Juab? Or Salt Lake? Or would you choose Morgan?

Or would you choose Washington County? Last week, my colleague Jessica Miller profiled Ed Flint, a defense attorney who, like the other public defenders who contract with Washington County, gets paid $58,000 a year with no benefits to handle an absolute deluge of cases.

(photos by Rick Egan | The Salt Lake Tribune) Ed Flint represents various clients in St. George on July 10, 2019.

In 2018, Flint was assigned 283 new cases. A lot of them are routine, but his caseload included a high-profile murder case, one client who was charged with trying to plant a bomb, and a child sex crime.

The American Bar Association recommends public defenders handle no more than 150 felonies or 400 misdemeanors in a year. Otherwise, it becomes less of a defense and more of a matter of (in lawyer vernacular) “meet ‘em and plead ‘em."

It’s hard to compare those guidelines to Flint’s caseload — since he handles both felonies and misdemeanors — but he told me he has about 300 active cases. Add in parole violation cases and the number, he estimates, climbs to about 550. It’s too many.

“Isn’t your incentive to ‘stack ‘em deep and sell ‘em cheap’?” Flint asks.

Sure, attorneys like Flint could make more money — a lot more — doing something else. But he says that would be “like eating sawdust.”

“I get more fulfillment defending life and liberty rather than playing with other people’s money. But I’ve got to make a living,” Flint says. What really burns him up is when people thank him for his “service.”

“This is supposed to be a job. This isn’t a service. I’m not volunteering to do this sh--. I like it, but I should get paid, I should get vacation, I should have a retirement.”

The state has been making efforts to improve the system. The Indigent Defense Commission has given out more than $5 million in grants over the past two years to support those counties like Juab and Uintah. And the commission has formulated guidelines for counties wanting to improve their system.

“I think some counties, including Salt Lake County, have a very good system. Utah County, Davis County, maybe to a lesser extent Weber County, I think there are some very good systems. I think other systems are mediocre,” says Sen. Todd Weiler, an attorney who sponsored legislation to reform the state’s indigent defense and is a member of the state commission.

But, as Weiler points out, inconsistency remains, as does the point: Whether a defendant receives the constitutionally guaranteed right to a competent defense shouldn’t hinge on where the alleged crime took place.

It’s time to do better. Utah should join the 29 other states — including Colorado, Nevada and New Mexico — that have a state-run indigent defense system. The Indigent Defense Commission should approve contracts with defenders offices in each of the seven judicial districts and ensure the attorneys are adequately paid and not overburdened to the point it impacts their ability to represent clients. Perhaps even make them eligible for state benefits.

The counties, which now pay all of the defense costs, should continue to contribute most or all of the funding.

That way, we can finally get away from justice by geography and move a step closer to that lofty goal of equal justice under the law.