Arguments For and Against Proposed Constitutional Amendment 5
2012
Arguments For - May Help Department With Funding Needs - Public Defender Department Lacks Sufficient Funding, Repositioning Department As Independent State Agency May Help Secure Necessary Funding:
The Public Defender Department performs the politically unpopular, yet constitutionally mandated, function of protecting the rights of people accused of committing crimes, and financing the defense of those people is expensive. Currently, the Department receives less money and has fewer resources than it needs to properly perform its functions, and it is often difficult for the Department to successfully ask for funding and resource increases. Many elected officials do not want to be seen as "soft on crime" by supporting the defense of alleged or known criminals. Several other states' public defender departments are structured as independent state or county agencies, or they are situated within a state's court system. This amendment would better position the Department to seek and lobby for the resources it deems necessary, much like the state's district attorneys. - Helps Protect Against Conflicts Of Interest - Establishing Department As Independent State Agency Helps Guard Against Conflicts Under Rules Of Professional Conduct For Attorneys:
To protect the constitutional rights of indigent persons accused of crimes, the state, through the Public Defender Department, makes available public defender services. The Department, as situated within the state governmental structure, is ripe for conflict with the Rules of Professional Conduct for legal professionals. Under those rules, attorneys are prohibited from allowing a non-client who is paying for the client's defense to direct or regulate the attorney's professional judgment in providing legal services. Additionally, attorneys cannot accept compensation from someone other than their client, without the client's consent, when there is potential for interference with the attorney's independent professional judgment. However, the Department is headed by a Chief Public Defender who is appointed by and serves at the pleasure of the Governor. Since the Chief Public Defender serves at the Governor's pleasure, exercising truly independent professional judgment, particularly when the Department is defending an unpopular or notorious alleged criminal, could prove to be exceptionally challenging. This amendment proposes to establish the Public Defender Department as an independent state agency, therefore ensuring that the Chief Public Defender and the Department can exercise truly independent judgment that is in line with generally accepted professionalism standards of the legal profession. - Balanced Approach - Proposal Equalizes Governor's Power To Set Criminal Justice Policy:
This amendment attempts to ensure a more balanced approach within the state's criminal justice system. The Governor already sets many policies of the criminal justice system by appointments to various departments and through the executive's legislative initiatives and priorities. The current system, which allows the Governor to also appoint the Chief Public Defender and retain oversight authority of the Public Defender Department, affords the Governor more power in ultimately determining the policies and practices of the state's criminal justice system. The amendment offers a clear way to balance that power by establishing the Department as an independent agency that is no longer accountable to the executive branch. - Allows Department To Independently Advocate - Standalone Public Defender Department Will Be Best Situated To Independently Advocate Rather Than Compete With Other Executive Agencies For Resources:
Protecting the constitutional rights of indigent persons accused of crimes is required by the federal and state constitutional guarantees for representation. Public defenders that represent indigent defendants need resources comparable to those of the district attorneys. A Department that is answerable to the executive branch may not have the ability to advocate for all that is required for public defendants as it must compete against the demands, needs and desires of other executive agencies. A standalone Department, however, would be in a better position to establish itself as an independent, constitutional office charged with protecting a basic constitutional right.
Arguments Against - Too Costly - Establishing Independent Department And Creating New Commission Means Higher Undetermined Costs Paid By Taxpayers:
This amendment creates added expense to taxpayers because it requires amending the Constitution of New Mexico to make the Public Defender Department an independent state agency, and it requires the creation of a Public Defender Commission charged with appointing the Chief Public Defender and with providing guidance and oversight to the Department. In addition to the Department's operational and capital needs, the members of the newly created commission would be entitled to per diem and mileage reimbursement when conducting the business of the commission. There is no way to accurately estimate those costs, except to note that the current statutory daily rate is $95.00 per day. The voter has no way of knowing how many members will be on the commission nor how many days of work-related travel and expenses those members will incur. The changes proposed by this amendment constitute a needless additional expenditure of taxpayer funds for a Department that is already in existence. - May Have Unintended Funding Consequences - Without Executive Support, Public Defender Department May Be Less Able To Advocate For Funding:
This amendment could have far-reaching negative consequences related to the necessary funding for the work of the Public Defender Department. Under current law, the Department is an executive agency, and as such, the Governor requests and advocates for the Department's budget. If, as proposed by the amendment, the Department becomes an independent agency, the Department will have to request from the Legislature, and advocate for, a sustainable budget that includes the necessary funding to represent alleged criminals. Tough economic times, like the recent recession, coupled with society's general unease with funding the defense of persons alleged to have committed crimes, could result in a severe underfunding of the Department charged with the constitutional and statutory mandate to provide fair and effective assistance of counsel to the accused indigent. - Creates Bigger Bureaucracy - Proposal's Creation Of Commission Unnecessary, Does Nothing Toward Providing Actual Representation Of Indigent Persons:
This constitutional amendment creates yet another level of bureaucracy that is unnecessary, time-consuming and costly to the taxpayer. The amendment's proposed Public Defender Commission cannot actually assist in the representation of indigent defendants or in the core mission of the Public Defender Department. Instead, it would merely be a redundant and superfluous layer of management, requiring consultation and approval regarding decisions that should be left to a qualified Chief Public Defender. The result would be unnecessary delays in the operations of the Department. - Current Status Less Political - As Currently Situated Within The Executive, Chief Public Defender And Department Are More Insulated From Politics Than Are District Attorneys And State Attorney General's Office:
The Chief Public Defender is a political appointee of the Governor. However, the positions of district attorneys and the state Attorney General are even more subject to political influence, since they are elected partisan offices. The Chief Public Defender is primarily an administrative department head, with duties comparable to those of a district attorney or the state Attorney General. It is deputy public defenders, like deputy district attorneys, that typically handle the Department's cases. Under the current statutory and regulatory scheme, the assistant public defenders who perform the day-to-day representation of indigent clients operate under the same professional constraints as their counterparts, assistant district attorneys and assistant state attorneys general. Also, concerns about undue political influence in representing indigent defendants are effectively addressed by the rules of professional conduct that prohibit an attorney from permitting a non-client, such as the Governor or a Chief Public Defender appointed by the Governor, to direct or regulate a lawyer's professional judgment in rendering legal services to a client. Changing the Department's executive agency status for political purposes is unnecessary. - Been Tried Before - 30 Years Ago Chief Public Defender Was Appointed By Board But Legislature Changed To Governor Appointment In 1985:
At one time, the Chief Public Defender was appointed by a board instead of the Governor. Then, in 1985, the Legislature enacted a law providing the Governor with the authority to appoint a Chief Public Defender to serve at the Governor's pleasure. If the Legislature now believes the Public Defender Department would be somehow better served by having an independent commission appoint the Chief Public Defender, it can provide for that change statutorily. - Too Vague - Without Details, Voters Asked To Allow Legislature To Create Independent Agency And Commission And Provide For Appointment Of Chief Public Defender:
While this constitutional amendment would create the Public Defender Commission, it provides virtually no detail regarding how the proposed Public Defender Commission will be organized. The amendment states that the "[t]erms, qualifications and membership of the ... commission shall be as provided by law". Therefore, allowing the specifics of the commission to be solely established by the Legislature leaves voters with little understanding regarding the number of commission members, how they would be appointed and the extent of the commission's authority. Knowledge regarding these basic factors is important for voters to make informed decisions and, as such, should have been included in the amendment. Additionally, the amendment's silence as to any qualification requirements for the Chief Public Defender results in merely shifting significant authority over the Public Defender Department from the Governor to the Legislature, most likely undermining any real goal of creating an independent Department.
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