The practice by the state public defender of paying flat fees to contract attorneys instead of hourly rates does not rob poor defendants of their constitutional rights, the New Mexico Supreme Court said in an opinion released Thursday.

But state Supreme Court Chief Justice Barbara Vigil wrote in an attached opinion that the “noble” goal of the criminal justice system — “keeping New Mexicans safe” — can’t be accomplished without providing adequate funding to all partners involved in the system, including public defenders.

The 12th Judicial District case that prompted the opinion highlights what the state Public Defender’s Office has been pointing out to lawmakers: The office doesn’t have enough money to provide an adequate defense for the thousands of accused criminals it represents.

Specifically, the Law Offices of the Public Defender needs more money to pay higher rates to attorneys who handle cases in parts of the state where there is no staff or have to be contracted for other reasons.

The contract attorneys are paid flat rates for each case based on the seriousness of a charge. But the top level of compensation — for a first-degree felony case — is only $700, a paltry sum compared to what an attorney could charge a private client for the same work.

Thomas Clear, a member of the Public Defender Commission that oversees the office, said earlier this year that the rates are “quite frankly, ludicrous” and haven’t been changed in 25 years.

Clear said the only way the office has been able to continue providing representation to defendants in rural areas of the state is by hiring contract attorneys who are “altruistic enough to be able to accept a fee that for some of them is less than minimum wage.”

Gary Mitchell , the Ruidoso lawyer who represented Santiago Carrillo — the 12th Judicial District Court defendant whose case was the subject of the Supreme Court’s decision — said he earned about $3 per hour while working on Carillo’s case.

“I’m deeply disappointed in the decision,” said Mitchell who said he’s spent hundreds of thousands of dollars of his own money subsidizing the defense of indigent clients under meager public defenders contracts in his district over the past 37 years.

Mitchell said the decision was reminiscent of state supreme court decision handed down before the landmark case of Gideon v. Wainwright [which held that poor people charged by the government must be given effective assistance of counsel] in which states said they couldn’t comply because they didn’t have funds.

“The rule should be simple,” Mitchell wrote in an email. “No money, no prosecutions. New Mexico in the 52 years since Gideon has neverfully complied…our Supreme Court had the opportunity to correct that…they have failed.”

In the most recent legislative session, the Law Offices of the Public Defender asked the lawmakers to increase its annual budget to $96 million from $48 million

Legislators have responded to the office’s pleas by appropriating some extra money — a fraction of the increases requested — for the contract attorneys.

But they also passed a provision saying the money cannot be sued to pay the attorneys an hourly rate.

The issue came before the Supreme Court after 12th Judicial District Judge Karen Parsons ruled that the flat-fee rates “contravened the right to counsel” and ordered the Law Offices of the Public Defender to pay every contract attorney no less than $85 per hour. The judge also ordered the the state to provide the office more money.

The Supreme Court opinion reversed Parsons’ ruling, saying the flat-fee rate structure does not in and of itself violate the right to counsel. After all, Justice Judith Nakamura wrote in the opinion, then-Chief Public Defender Jorge Alvarado had it within his power to increase the rates.

Chief Public Defender Ben Baur said Thursday that the office represents “well over half” of all criminal defendants in the state and still needs more money to do that.

“This indicates the larger problem,” Baur said. “We’ve been struggling to determine the best way to represent poor people who are accused of crimes and who face jail or prison, and in the end, our state is going to have to decide to provide funding for our criminal justice system to operate in a rational and reasonable way.”

If the state doesn’t want to cough up more money, Baur said, it should figure out a way to send fewer “clients” to the Law Offices of the Public Defender.

Decriminalizing minor traffic offenses would be one way, Baur said; expanding diversion programs for at risk populations such as the mentally ill would be another.

Baur said the state’s justice system is rife with “intertwined” structural problems.

“We can do this better,” he said. “It’s about saving money, but it’s not just about saving money. It’s about how to try to solve some of these problems. The system as we’ve set it up sure ain’t doing it.”

Contact Phaedra Haywood 505-986-3068 or sfnewmexican.com. Follow her on Twitter @phaedraann.

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