The Senate has met the House on its budget offer for new positions for Assistant State Attorneys and Assistant Public Defenders, but the addition of full-time-equivalent (FTE) jobs is disproportionate.
That could create recruitment issues in Public Defender Offices and potential backlogs throughout the state justice system.
Compounding the issue, the chambers are also now aligned on proposed pay raises, which also favor Assistant State Attorneys.
The Senate has now adopted the House’s plan to spend about $4.4 million to create 40 FTE positions in State Attorney Offices, while earmarking just $1.8 million for eight new FTE positions in Public Defender Offices. Public Defenders had sought 38 positions and $7.3 million in funding.
Meanwhile, the Senate has also accepted the House position on pay raises, with a $10,000 pay bump for state prosecutors, and just $3,500 for public defense lawyers.
Both groups of legal professionals would welcome a pay increase. It’s no secret both State Attorney and Public Defender Offices have long struggled with recruitment and retention because of notoriously low pay for the lawyers who staff the offices. For example, the starting pay for a Public Defender in Miami is $72,000. Assistant State Attorneys in the 20th Judicial Circuit in Southwest Florida, a less populous area, start at $80,000.
The Florida Bar noted last year, citing Florida Public Defender Association President Stacy Scott, that new Assistant Public Defenders were being offered as little as $64,000 a year, depending on where they were working in the state.
Assistant State Attorneys are tasked with prosecuting suspects, while Public Defenders are responsible for providing defense for those deemed indigent; that is, they cannot afford a private attorney.
While any raise would be welcome to either group of legal professionals, the disparity is, by some accounts, a bigger problem than no raise at all.
Public Defenders seek parity in both pay and staffing. To put it simply, for every new judge added to a circuit court, there should be another Assistant State Attorney added and another Assistant Public Defender. With 40 FTE positions for state prosecutors, and just eight for public defense lawyers, Public Defenders are not only missing the 1:1 ratio mark, they are getting a significantly worse 5:1 ratio.
That may not seem like a huge problem for the legally uninitiated, but it’s a big deal. Not only does the current budget add more positions for State Attorney Offices, it also better incentivizes those jobs over public defense. If newly minted lawyers in Florida can make more as an Assistant State Attorney than as an Assistant Public Defender, many will choose the bigger paycheck — especially if they have hefty student debt to pay down.
There’s also the issue of retention. If existing Assistant Public Defenders can earn more across the hall as a prosecutor, what’s to keep them in their current roles?
A justice system is only as good as its ability to represent all sides. Prosecution cannot move forward if there isn’t a Public Defender to provide constitutionally mandated defense to the accused.
That not only creates a potential justice system backlog, it also risks saddling those facing criminal charges with the potential to be represented by a Public Defender spread so thin across a mountain of cases that they don’t provide adequate representation. One can imagine the appellate boondoggle that could ultimately spur.
What’s more, the disparity between prosecutor and public defense lawyer is not new.
Last year, Gov. Ron DeSantis vetoed more than $3.1 million that had been included in the current fiscal year budget earmarked for pay increases. Increases for state prosecutors were left intact.
Vera, an organization that advocates for a fair criminal justice system, found in an analysis this year that while every state in the nation now provides at least some funding for indigent defense, that only happened two years ago. And parity is still a long way off when compared to public prosecutors.
The Vera analysis cited a 2019 report from Brennan Center for Justice advocating for parity between Public Defenders and prosecutors and noted that the defense side has been underfunded for decades.
Speaking to the Florida Bar last year, Scott said the turnover rate among Public Defenders is about 20%, largely fueled by a pay parity gap between Assistant Public Defenders and Assistant State Attorneys that has fallen below 50% in some circuits.
