Defending the Public Defender

Written by FCJ Editor. Posted in Opinion, Politics

Published on July 08, 2009 with 12 Comments

San Francisco Public Defender Jeff Adachi.
Photos by Luke Thomas

By Matt Gonzalez and G. Whitney Leigh, special to Fog City Journal

July 8, 2009

San Francisco Public Defender Jeff Adachi is facing a $1.9 million dollar cut from his budget. The cut comprises nearly 10 percent of his operating budget, which is primarily used to pay for lawyers who provide services to the City’s poor.

No other big city department in San Francisco is facing cuts of this magnitude and the machinations that have led to this are among the most unusual at City Hall.

First, Mayor Gavin Newsom proposed cutting the public defender budget under the guise of saving money. He decided, against a trend followed in many other California cities (who are working to expand or create “second” public defense offices), that the public defender is too expensive and a large portion of its cases could be transferred to the private defense bar at a savings.

But audits by the City’s controller showed that Newsom’s plan to substitute private attorneys for public defenders would cost the city more, for simple reasons. Public defender lawyers work on a salary and do not earn overtime, even though their workload routinely compels a 10-hour+ workday. Private attorneys, by contrast, who customarily only handle cases the public defender cannot due to a conflict of interest, charge $85-$125 an hour. Not surprisingly, the evidence established Newsom’s plan to transfer cases to private attorneys would significantly increase the costs to the City by over $1 million dollars each year.

So why was this plan put forward in the first place?

Jeff Adachi, the only publicly elected Public Defender in California, is unafraid to disagree with our mayor (or any other public official) on policy issues and routinely exhibits independence.

For example, Adachi is a vocal opponent of the City Attorney’s use of so-called “gang injunctions,” that facilitate the profiling and unlawful arrest of African-American and Latino youth based on vague criteria easily susceptible to abuse. Adachi’s critique has proved prescient, as trial courts have found that several men have already been wrongfully identified by police as gang members.

Adachi also is a vocal critic of the community courts, a pet project of the mayor that diverts enormous funds to the prosecution of “quality of life” crimes – a project that many view as more important to Newsom’s gubernatorial aspirations than to making San Francisco a safer place to live. (Adachi staffed the court himself after the Mayor refused to allocate any resources to his office for doing so and a recent report shows that the court has been ineffective in its first three months of operation.)

Newsom’s proposed cuts would effectively require Adachi to lay off at least 15 lawyers – each of whom already handles a caseload that would stagger the average San Francisco attorney. The impact of such a reduction on the ability of attorneys to provide the poor and indigent with a basic criminal defense is hard to overstate.

Facing such severe budget cuts, Adachi sought help from the Board of Supervisors. Given the uncontested evidence that slashing the Public Defender’s office would cost the City greatly – in addition to harming the poorest among us – one would assume he would have found a receptive, or at least fiscally responsible ear.

But several members of the Board including many “progressives,” have endorsed a new, equally foolish and, in fact, more suspect justification for not helping preserve the Public Defender’s resources, inexplicably not understanding Adachi’s office’s role in aiding the poor.

The Board’s budget and finance committee initially voted 4-1 to reinstate $600,000 of his budget, but under the direction of Board President David Chiu, the budget committee decided to transfer $300,000 from Adachi’s budget to the District Attorney’s office. Chiu, a former prosecutor who once handled misdemeanor cases, justified his actions on July 1, 2009 by saying he could not support giving money to the Public Defender and not giving the equivalent to the District Attorney’s office.

Chiu’s reasoning is flawed for a number of reasons. Budgeting is based on need. Adachi established that his caseloads were high and that he would most likely be forced to outsource cases if the cuts took effect. So why on earth should there be an expectation that some of these monies first cut from, then restored to, his budget should be allocated to the District Attorney’s office?

But Chiu’s comments also demonstrate a deep misunderstanding of the fundamental differences between each office. The District Attorney’s office budget is $40 million, nearly twice the amount of the Public Defender’s budget. And the District Attorney receives over $7 million a year in state and federal grant funding not available to the Public Defender’s office.

Board of Supervisors President David Chiu.

Under these circumstances, simply taking $300,000 from the Public Defender’s office and giving it to the District Attorney for the sake of “equity” makes little sense, to put it mildly.

Even the San Francisco Chronicle published an editorial in Adachi’s favor. On June 29, 2009 they called the Mayor’s proposed cuts “seriously shortsighted and dishonest”. They noted the Public Defender’s office of 90 lawyers handle nearly 29,000 cases a year.

No Supervisor that votes to cut this budget while transferring monies to the District Attorney’s office should call themselves “progressive.” By comparison, the District Attorney’s office has only suffered a 3 percent general fund cut (more easily absorbed in a budget twice the size) and will likely grow in size when homeland security and stimulus package money is taken into account.

So why are progressives taking money from our public defender and transferring it to the District Attorney’s office? That’s a question that the full Board will answer when it reconsiders the Public Defender’s budget on July 14th – ironically, Bastille Day.

In trying economic times, the workload of our public defender’s office is only going to expand. Gutting a department that is already overloaded with cases with substantially fewer attorneys and resources than the City Attorney’s office and District Attorney’s office doesn’t make sense. And turning a blind eye to the effect such cuts will have – on poor people accused of crimes denied adequate representation – or to the increased costs the City will incur as a result, is not consistent with San Francisco values, or common sense.

Correction from Matt Gonzalez:

It appears that the budget committee may not have exactly transferred 300K from Adachi’s budget to the District Attorney’s budget. However, what is clear is that a proposed restoration of 600K to the Public Defender was cut in half when Board President David Chiu stated he would not support giving the Public Defender money if equal money were not given to the District Attorney.  Thereafter 300K was given to the District Attorney (According to Budget Chair John Avalos this was done via stimulus package money, ARRA funds) and only half of the proposed restoration (300K) was given to the Public Defender.

As things stand now, despite the 300K restoration, the Public Defender’s budget has been cut by $1.6 million.

Additional comment by Whitney Leigh:

This correction, of course, underscores the fundamental illogic of tying a restoration of funds taken from the public defender’s budget with a “quid pro quo” allocation of funds to the district attorney’s office in the first place. As previously observed, the district attorney’s budget dwarfs the public defender’s budget and is backed by multiple additional funding sources (including stimulus funds, like the AARA) not available to the public defender.

Matt Gonzalez & G. Whitney Leigh are partners in the law firm Gonzalez & Leigh LLP that primarily handles civil rights cases. They are both former deputy public defenders in San Francisco. Leigh also served as a deputy public defender in Santa Clara County and was a partner at Keker & Van Ness LLP, and Gonzalez is a former San Francisco Supervisor.


Comments for Defending the Public Defender are now closed.

  1. Ruth:

    Because, for one, white collar criminals are far less often subjected to criminal prosecution.

    When the federal stimulus bill was passed, the head of the F.B.I. said they lacked the investigators needed to respond to the inevitable increase in fraud that he said it was sure to trigger, because so many investigators had been assigned to the War on Terror. Patrick Leay was trying to get them a few hundred million to pay more agents.

  2. For those interested there are 2 charts on public defender’s site.
    Chart which shows how much more expensive it will be to have private attorneys defend the indigent.

    Chart which shows $3 million to private attorneys with a loss to public defender of $1.9 million is a net increased cost to the city of $1.1 million

  3. Greg,

    You say:

    “we have a DA, one whose budget is twice the PD’s budget.”

    Of course. The PD defends only people who are indigent. The DA prosecutes all crimes, regardless of whether the defendant is indigent or not.


    You say:

    “we all know that African Americans are more likely to be subject to criminal prosecution.”

    Why is that?

  4. Interesting to note that the D.A.’s office got federal stimulus funds for daily operations, but our Municipal Transit Authority, like bus and other mass transit systems all over the country, got none.

    African Americans ride the bus at three times the rate that the general population does. Latinos and women ride it more as well, but African Americans, proportionally, ride the bus more than anyone.

    And, I think we all know that African Americans are more likely to be subject to criminal prosecution.

  5. “I hope you will also agree with me that San Francisco has a constitutional obligation to prosecute crime. Otherwise, why would the state constitution require every county to have a D.A.?”

    Yes, I agree. And we have a DA, one whose budget is twice the PD’s budget.

    “The D.A. and her staff say they are the ones who are outgunned.”

    What they say and what reality is, are two different things. My educated guess is that the caseload of a typical public defender is much higher than that of a typical prosecutor, so your average prosecutor is going into that courtroom having to give their cases much less individual attention than the DA. If I’m wrong (and I’m pretty sure I’m not), I’d be fine with increasing the DA’s budget to make the caseloads equal. But the question is, if I’m right, do you agree that we should increase the PD’s budget to make the caseloads equal (or decrease the DA’s budget)?

  6. Greg,

    I agree with you when you say that we have “constitutional obligations to provide indigent defendants with representation.”

    I hope you will also agree with me that San Francisco has a constitutional obligation to prosecute crime. Otherwise, why would the state constitution require every county to have a D.A.?

    You say:

    “we need to make sure that the PD doesn’t go into the courtroom outgunned every time.”

    The D.A. and her staff say they are the ones who are outgunned.
    They say they are often forced to forego prosecuting cases, or to agree to unsatisfactory plea bargains, because they don’t have the resources to prosecute more fully.

    I urge you to look at statistics in the Public Defender’s office regarding the people they represent. You will find that a significant percentage have previous records. They are repeat offenders.

    For these defendants, crime has become an established norm of life. They are entitled to a competent defense. But it is not in the public interest to give them an advantage over the common good. Doing so is neither just nor rational.

  7. If voters could decide, which they can’t, I think most San Franciscans think that the DA has indeed done a poor job of prosecuting crimes, and I think most would also agree that the public defender is underfunded and caseloads are too high. I believe that if the electorate of this particular city -unlike some others -could decide, they’d opt to equalize funding between the PD and the DA, because I have faith in the San Francisco electorate’s fundamental belief in fairness.

    The more important point, however, is that this isn’t something voters *should* decide. If we as a society are to meet our constitutional obligations to provide indigent defendants with representation, in a way that doesn’t make a mockery of the aforementioned constitutional obligations, then we need to make sure that the PD doesn’t go into the courtroom outgunned every time.

    If we abandon our committment to indigent defendants, or cut the budget of the PD to the point where that committment is meaningless, simply because it’s popular or because we don’t feel we’re throwing enough criminals in jail, then we just descend into the barbarism of mob rule.

  8. Greg,

    My guess is that most San Franciscans want both competent defense for indigent defendants and competent enforcement of the laws.

    The question then arises as to how to allocate resources for both of these worthy goals in the time of a budgetary crunch.

    Let’s reflect here a bit –

    Do most San Franciscans believe that the city has a good record in prosecuting crimes? Do residents believe that indigent defendants are in general getting a raw deal?

    If so, voters will support more dollars for the Public Defender, and fewer for the D.A.

    On the other hand, suppose most people believe that the city has a poor record in prosecuting crimes, and that most indigent defendants are doing okay. In this case, voters will support more for the D.A. and less for the Public Defender.

    Which of the above views do most San Franciscans have? Any guesses?

  9. Wow. I do hope that the views expressed by Ruth Snave and especially Goldeneye aren’t indicative of San Francisco as a whole!
    The PD is a luxury? Oh jesus! Where to even begin!

    Look, under the constitution, the people charged with crimes are innocent until proven guilty. Defending innocent people from the most serious thing that the state can do to them -deprive them of their freedom -is not a luxury. It is a necessity, if we are to call ourselves a free and civilized society.

    That’s why the constitution mandates that the indigent have access to representation. The thing is, for this fundamental requirement to have any validity, there not only needs to be a paper guarantee, but this guarantee needs to mean something. For the justice system to work effectively -ie., for juries to be able to come to the right conclusions, there needs to be balance between the sides. When the DA has a tremendous advantage in resources, creating a situation where the PD can’t do their cases the same kind of justice the DA can, that’s not balance. That’s making a mockery of the requirement for adequate representation.

    As it is, the PD already has just half the budget of the DA, and they want to cut it even more. At some point, you get to a point where the requirement for representation is there, but it’s essentially meaningless; the PD is so outgunned that in most cases the result would be the same as having no representation at all. At that point the constitution is just a piece of paper.

    I don’t think we’re quite at that point yet, but we’re getting there.

  10. Having a Public Defender, I believe, is a luxury. It’s a luxury that the law provides for suspected criminals. Don’t get me wrong, everyone deserve a fair shake when they go to trial, but if our great City is in financial hardship, I would take it from suspected criminals before going to taxpayers. The FREE service is still provided regardless. That’s just my opinion. I like having my taxes go to other things: education, public safety, crime prevention programs, libraries, youth programs. Agree or disagree?

  11. According to Adachi, the mayor refused to meet with him during the budget-preparation process. If Adachi’s claim is true, this failure reflects badly on the mayor.

    The mayor has a responsibility to meet with department heads and work out good-faith compromises. This is yet another case where the mayor is M.I.A. The city deserves better from him.

    On the other hand, one of Adachi’s arguments is weak. He points out, correctly, that the state constitution requires that indigent defendants be given capable representation.

    But Adachi is not entitled to infer, as he sometimes does, that this requirement gives a precedence to public defenders over D.A.s. The state constitution also requires that every county have a D.A.

    My own personal impression, living in SF for a long time, is that current city practices favor criminals over the well-being and safety of the public. For many perpetrators, SF is a city of choice in which to commit crime.

    So I, for one, would favor increasing the D.A.’s budget and decreasing, somewhat, the Public Defender’s budget. Better law enforcement would especially help at-risk and poor neighborhoods.

    But I don’t blame Adachi for making the best case he can for his department.

  12. Hopefully this gets sorted out. It’s not good when the PD’s office runs out of money. Look at New Orleans–their PD system was funded by traffic tickets, and after Hurricane Katrina, there was a total lack of those. The office was cut down to four attorney’s, and people were sitting in prison’s without ever even being arraigned. It’s a tragedy, and I hope the PD gets the money it so desperately needs.