In recent weeks, the Legislature has scrambled to provide enough funding to hold agencies over until the end of the year: nearly $35 million to DHS, and over $700,000 to the Oklahoma Indigent Defense System (OIDS). As we pointed out last year, OIDS has been inching toward insolvency for years, as the need for representation continues to grow but appropriations continue to decline.

This year, in order to avoid a legal crisis, the agency’s budget must be returned at least to the barely-adequate level of funding provided at the beginning of FY 2016. That will require $1.5 million more than what they got in FY 2017. While OIDS is competing for very limited funds with a great number of other priorities, the Legislature must fund Oklahoma’s constitutional duty to provide indigent defense. Otherwise we risk a crisis like the one happening in New Orleans, where public defenders have begun refusing felony cases they can’t represent properly and insisting that innocent clients were sent to prison for lack of representation. Out of that crisis, Oklahoma could be forced to release thousands of defendants, innocent and guilty alike, due to lack of representation.

Though it’s a relatively unknown and small agency, OIDS plays a critical role in the justice system, ensuring that people accused of crimes have the right to a “fair and speedy trial” as guaranteed by the Sixth Amendment to the U.S. Constitution. Oklahomans who are charged with crimes but can’t afford an attorney to represent them are provided one by OIDS, either through a staff attorney or a contract with a private attorney (Tulsa and Oklahoma Counties have separate public defender offices which do not receive appropriations from the Legislature). When these offices don’t receive enough funding to fulfill their duties, they risk failing to protect defendants’ constitutional right to representation.

This year’s emergency appropriation averted a repeat of the crisis that occurred in 2002. That year, the agency was sued by the District Court of Kay County for failing to provide an attorney for two indigent defendants. The agency argued that it did not have enough money to do so, and the Supreme Court ruled that the two defendants be released if they were not provided counsel. Ultimately, the court stepped in to hire an attorney for the defendants, who were charged with drug crimes, assault and battery, and burglary.

Since that year, OIDS has seen their total caseload rise by nearly 50 percent, while their appropriations have dropped by almost 35 percent. Just between 2015 and 2016, the total number of cases they handled rose by 17 percent, mainly because overworked attorneys had to carry over cases from previous years. Last year, OIDS staff attorneys handled caseloads that were 2.6 times higher than national standards. The agency warned in its 2016 Annual Report that cuts have “jeopardized the agency’s ability to continue to provide constitutionally effective legal representation,” a crisis that could lead to the release of defendants when the agency is unable to provide representation or the reversal of convictions when the agency can’t afford expert services.

This year, the Legislature was able to avoid disaster again by providing OIDS an emergency appropriation. But as lawmakers have instructed agencies to prepare scenarios for cuts up to 14.5 percent this year, that may be even harder to accomplish. More budget cuts could force Oklahoma to release thousands of defendants due to lack of representation and possibly to reverse convictions on appeal if expert services aren’t available at trial. OIDS reported that 5 percent cuts could mean the release of 2,300 defendants, and 15 percent cuts could mean the release of up to 11,200 defendants from 21 counties.

OIDS has told the Legislature that without new state funds, these scenarios could only be avoided by shifting funds from county courts. Those county courts depend heavily on criminal court fee revenue that hasn’t increased since at least 2003, leaving the courts stretched extremely thin as well.

Money is again extremely tight for the legislators putting the budget together for next year. But compared to other obligations, like funding education and health care, the price to bring OIDS up to a minimally adequate level of appropriations is relatively minor — about $1.5 million to return to FY 2016 levels, according to Deputy Director Craig Sutter. Fulfilling this request may not be easy in the state’s dire financial straits, but the alternative is failing to perform a basic constitutional duty.