The state lawyers who represent Alaskans who can’t afford to pay for their own attorneys will soon stop accepting new clients who face serious felony charges filed in the Nome and Bethel Superior Courts because of an ongoing shortage of qualified attorneys.
“The agency lacks the capacity internally to provide representation in these matters consistent with its ethical and constitutional obligations,” Public Defender chief Samantha Cherot wrote in letters sent Tuesday to the presiding judges in the 2nd and 4th Judicial Districts covering Nome and Bethel, respectively.
The agency asked presiding judges in the Nome and Bethel regions to direct Superior Court judges not to assign new cases to the agency beginning Feb. 13. The request applies specifically to unclassified and Class A felonies, which are the most serious and complex crimes, such as murder, manslaughter and assault — the crimes most likely to go to full trials rather than getting out-of-court settlements.
Cherot, who leads the Public Defender Agency, said it has long faced challenges in recruiting and keeping qualified attorneys, and those challenges were exacerbated by a pandemic-caused backlog in criminal cases. The recent resignations of experienced attorneys in Bethel and Nome brought the agency to a breaking point, leaving it without sufficient experienced attorneys to handle new complicated cases, she said.
A spokesperson for the Alaska Court System declined to respond to questions about the options that low-income individuals facing felony charges in Bethel and Nome will have without the avenue of representation from the Public Defender Agency.
The Nome and Bethel offices need four to five experienced attorneys to ethically represent clients charged with serious felonies, Cherot said in an email to the Anchorage Daily News. Current staffing levels are below that threshold.
In Bethel, only two agency lawyers have the skill and experience necessary, she wrote. A third lawyer who represents clients facing Class A felonies has submitted his resignation effective May 2023. The agency’s two most experienced lawyers in Bethel already have around 100 cases each, of which around 40 are serious felonies, according to the letter sent by Cherot.
In Nome, an experienced attorney recently resigned, leaving the office with two relatively new hires. One of them has been practicing law for only one year, and another has been employed by the agency for less than 60 days. Neither has the experience to represent clients facing complex felony charges, according to the letter.
“With a few additional attorneys with the necessary training and experience to handle unclassified and A felonies, the situation could improve quickly. Otherwise, the agency needs time for its existing qualified attorneys to resolve many of their pending cases before they can ethically accept new cases or for newer attorneys to gain the necessary experience to be able to handle these case types,” Cherot said.
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When faced with a shortage of qualified attorneys, the agency has “often” relied on contracted private lawyers, and will continue to do so in the future, Cherot said. But they are struggling to identify enough private attorneys with the skills and experience necessary to represent individuals charged with serious felonies and fill the gaps left by public defender staffing shortages.
“These contractors typically accept only a few serious felony cases at a time, and they often restrict the jurisdictions,” Cherot said.
The agency has identified two private lawyers who may be willing to represent individuals charged in the Nome Superior Court. In Bethel, the agency has not identified any additional private lawyers who are willing to represent clients in complex felony cases.
The most serious staffing shortage is so far restricted to the Nome and Bethel offices, but according to the letter, the agency “may need to take similar action in Palmer Superior Court, if expected resources do not materialize in the next few weeks.”
While the Public Defender Agency attempts to hire attorneys who live and work in the communities they represent, they have sometimes relied on attorneys who do not reside in rural Alaska to represent clients who live there, because of challenges in recruiting attorneys to those regions. But experienced public defenders across the state are at capacity and cannot fill the gaps left in Bethel and Nome, according to the letters.
In an effort to address a critical shortage in state attorneys across multiple agencies, the Legislature passed a bill last year that gave attorneys a 20% pay increase. The Legislature and governor have also approved more positions for public defenders in recent years. The funding boost has been helpful in recruiting and retaining attorneys, but has not addressed the full magnitude of the problem, Cherot said. And even when the agency does receive job applications from aspiring public defenders, they seldom have the qualifications to take on the most complex cases immediately.
“The agency rarely receives experienced attorney applicants, even with the recent increases to attorney pay,” Cherot said. “The majority of applications the agency receives are from third year law students or law clerks who can’t join the agency until August or September of each year. This means that when an attorney resigns between October and July each year, not only does the agency not have a replacement for several months, the new attorneys lack the experience and training necessary to handle serious felony cases.”
Attorneys cite several reasons for not wanting to work for the Alaska Public Defender Agency, including not wanting to be far from family and friends in the Lower 48, and more lucrative compensation and manageable workloads in both the private sector and other government agencies, according to Cherot. She also cited the lack of a law school in Alaska and a high standard for passing the bar exam as impacting the agency’s ability to recruit new lawyers.
The Office of Public Advocacy, which falls under the state Department of Administration, is called upon to represent low-income clients — who cannot afford to pay for legal representation — when public defenders face a conflict of interest. But James Stinson, director of the Office of Public Advocacy, indicated the office would resist if ordered by the court system to share the burden of court cases typically handled by the Public Defender Agency.
“The Legislature never intended for OPA to be the front line defense agency for the state. We are not staffed, funded, or structured to be,” Stinson wrote in an email.
Stinson said the public advocacy office in Bethel has just three attorneys handling cases in numerous courts across Western Alaska.
“In short, the OPA Bethel office has no ability to absorb additional unclassified and A felonies that were never intended for it. It would quickly implode, as these are the most resource-intensive case types,” Stinson said.
“The solution cannot be to cause small OPA sections to implode. If the attorneys in those offices become overwhelmed and quit, then there will be even more clients who are not represented,” he added.
Instead, Stinson called on the court to use its authority under an administrative rule, which allows the court to appoint private attorneys to qualifying clients. Stinson called relying on administrative rule 12(E) “the least deleterious option.”
“OPA is managing to tread water, standing on our shoulders won’t help,” he said.
Responding to the letters, the American Civil Liberties Union of Alaska legal director Ruth Botstein said in a statement that the organization is “committed to ensuring that every Alaskan’s right to effective counsel is protected.”
“We are closely monitoring the crisis facing the state agencies responsible for providing this counsel. Alaska’s leaders must ensure that every person can exercise their rights to a rigorous defense and has access to all the rights guaranteed by the United States and Alaska Constitutions. Failure to do so will have devastating consequences for individuals and families, including wrongful convictions, unjust sentences, and the corrosion of integrity and trust in our justice system,” Botstein said.
A spokesman for Gov. Mike Dunleavy said that the governor’s supplemental budget, submitted late last month, calls for an additional $3.1 million investment in the Office of Public Advocacy and the Public Defender Agency, on top of funding for more attorneys and higher salaries promised in previous years.
“The governor’s office will work with the Department of Administration and the Legislature to determine if this level of financial support is sufficient for the Office of Public Advocacy and the Public Defender Agency to handle the emergent issue of caseloads in Bethel and Nome,” Dunleavy spokesman Jeff Turner said in an email.
Sen. Bert Stedman, a Sitka Republican who co-chairs the Senate Finance Committee, said the issue would be addressed as part of the budget process.
“Those court systems in both those communities have been a point of discussion the last few years,” said Stedman. “It’s an unacceptable outcome, obviously, what’s going on. So we’ll have to try to mediate that in the budget process.”
Rep. Andy Josephson, an Anchorage Democrat who last year sponsored the legislation that gave state attorneys the 20% pay increase, previously worked as an assistant district attorney in Kotzebue before going into private practice.
“I have not ever heard of the Public Defender Agency saying, ‘We won’t do it,’ ” Josephson said. “That speaks of a sort of crisis. Because the Public Defender Agency — they are a hardworking bunch, and they’ll go all out for people, because they really believe in what they are doing.”
This is not the first time the Public Defender Agency has threatened to stop taking cases. In 2018, former agency chief Quinlan Steiner said the agency would have to begin turning down cases if its staff of attorneys wasn’t expanded. Now, with more staff funded but not enough qualified attorneys to fill the positions, the crisis seems only to have grown in magnitude.
“It makes me wonder whether you’re going to see another organization form called Private Practices Are Us,” said Josephson. “This would be just a group of people like myself who would be willing to step up and take cases.”
ADN reporter Sean Maguire contributed to this report.