HELENA — A financial audit of the Office of the State Public Defender found the agency doesn't know how much money it is owed by criminal defendants and that the office is not trying to collect the money while facing a $3.5 million budget shortfall.
The November audit said the defender's office estimates it was owed $3.95 million in court-ordered fees as of June 30, but has written off $2.8 million as uncollectible.
"These unpaid assessments represent money due to the office that could be used to fund a portion of the office's operations instead of the (state) General Fund," auditors found.
State agencies should have policies in place to ensure timely billing and should make all reasonable efforts to collect money owed to them, the audit said.
Office managers told auditors there are several obstacles to collecting the fees that state law allows if judges determine defendants have the ability to pay.
OPD says it's been unsuccessful in getting complete information from courts about the amount of fees owed and paid by individual defendants. It also notes there is no centralized database allowing the state to track the amounts due by each defendant and the order in which defendants are to pay for fines, restitution and public defender fees.
"It is up to each clerk of each court to decide what their level of cooperation will be," Scott Cruse, outgoing chief administrator wrote in a response to the audit.
Managers also question whether they have the legal authority to collect the money, and believe that work should fall on the court system.
The audit notes the legislature's Task Force on State Public Defender Operations is supporting legislation to transfer the responsibility for collecting public defender fees to the Department of Revenue.
"Due to this, we will make no further recommendations at this time," the audit said.
State law allows judges to sentence defendants to pay up to $250 if they are assigned a public defender and plead guilty to a misdemeanor charge, up to $800 if they plead guilty to a felony charge or up to the full court costs if they go to trial — depending on their ability to pay.
David Carroll, the executive director of the Sixth Amendment Center in Boston, said no jurisdiction nationally is successful at collecting public defender fees.
"By definition, the people using the services of the public defender are indigent, and it is difficult, at best, to get blood from a stone," Carroll said in an email to The Associated Press on Thursday.
Montana's Office of Public Defender, which was created in 2006 to provide consistent public defender services statewide, is struggling with a high caseload and a budget shortfall.
Cruse submitted his letter of resignation last month, less than three months after he started the job, saying he was facing pushback from program managers against budget cuts.
Richard "Fritz" Gillespie, chairman of the Public Defender Commission, resigned soon after, saying he did not have the energy to represent the office during the upcoming legislative session, The Billings Gazette reported.
The Public Defender Commission has proposed hiring 62 part-time attorneys to handle cases at a rate of between $37 and $48 an hour rather than contracting out some cases to private attorneys for $62 an hour. The commission said the move could save the office $2.2 million during Fiscal Year 2017.
The Legislative Audit Committee is scheduled to meet Dec. 9 to discuss this and other recent audit reports.